Cecily McMillan’s Guilt: Injustice at Its Most Basic

Cecily McMillan’s guilty verdict in Manhattan district court on Monday delivered a gut punch to the last vestiges of Occupy Wall Street. Above all, the decision highlights the workings of a criminal justice system bent on chilling dissent and defending the status quo.

According to the jury, McMillan, a 25-year-old New School student known in Occupy circles for her moderate views, is guilty of second-degree felony assault on a police officer during an Occupy Wall Street protest on March 17, 2012. Denied bail and taken away in handcuffs, she will await her sentencing in a cell. She faces up to seven years in prison.

The “felony assault” in question occurred when the officer, Grantley Bovell grabbed McMillan’s breast from behind, leaving visible bruises; she spun around instinctively, hitting the officer with her elbow. I was in obstructed eyeshot of McMillan outside Zuccotti Park that day, and could see her legs convulsing on the sidewalk. I later learned that she had collapsed into a seizure as NYPD officers crowded around her and onlooking protesters screamed for an ambulance to be called.

McMillan’s conviction offers an unambiguous answer to that popular and rhetorical chant levied at police lines during Occupy protests: “Who do you protect? Who do you serve?” The court’s reply is clear: systems of power and their NYPD guardians will be coddled with impunity, while protesters will be beaten, broken, and jailed.

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For two years, McMillan has lived with the weight on her shoulders of a potential prison sentence. She has intimated to me that her ordeal has left her psychologically depleted; she is regularly close to tears. No one would instinctively regard this young white woman as an archetypal victim of police abuse and legal persecution. McMillan herself admitted as much to TruthDig when she recently commented, “People of color, people who are poor… do not have a chance for justice. Those people have no choice but to plea out. They can never win in court. I can fight it. This makes me a very privileged person.”

Many have suffered more than McMillan at the hands of aggressive policing and protracted legal processing. Yet her case remains significant. McMillan’s Occupy persona — that of the liberal Democrat pushing for representative politics and party-building organization — sat at stark odds with some of Occupy’s (and my own) more radical desires for a chaotic, unforeclosed space of ongoing dissent, occupation, and street action.

However, the arc of her case is representative of Occupy’s downfall. Critics may have pointed fingers at activists’ failures, sidestepping the real locomotive force behind Occupy’s dismantling: It’s the cops, stupid. McMillan has also been emotionally broken by the police and a legal system that’s inclined to give officers (even those like Bovell with a history of excessive force allegations) the benefit of the doubt.

Her case has highlighted a structural problem propping up US criminal justice. It’s the same issue tragically brought to light by late technologist Aaron Swartz’s case. Namely, that the cards are ever stacked against the defendant while the prosecution is laden with leverage. In choosing to go to court, as opposed to settle and fallaciously admit guilt, McMillan risked up to seven years in prison. Swartz too refused to settle and accept the designation “felon,” and consequentially faced possible decades in prison. The 26-year-old chose suicide instead. McMillan chose to fight in court. She has been punished with a guilty verdict, denial of bail, and the promise of jail.

The toll of protracted legal processes cannot be overestimated. Combined with draconian minimum sentencing laws, a vast amount of defendants in this country plea out, forgoing their day in court. “When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers,” wrote American University law professor Angela Davis.

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McMillan’s trial began over two years after the incident for which she was charged. As she herself noted, she had the privilege and support to take her case to court. In a world different from this one, where justice is more than just a word, McMillan wouldn’t be on trial at all — she’d be receiving settlement money from the NYPD for an assault that was witnessed by dozens. But in this world, the justice system has rewarded McMillan with two exhausting and drawn out years and a felony conviction.

Like Occupy at large, and other movements in recent decades that have coalesced around dissent and challenged bastions of power, McMillan has been assailed and dragged through the bureaucratic mud. While we await her sentencing hearing, this guilty verdict should resonate.

Occupy’s heyday is years behind us, but — as McMillan’s verdict proves — the injustices that galvanized thousands to take to the street prevail. It’s a chilling fact that even McMillan, the mildest and most moderate among us dissenters, will be denied her freedom.