The Prince of Peace Plowshares. Federal Court. Portland, ME --October 27, 1997

Prosecution: (1) He attacked the ship. (2) He frightened young sailors whose home it was. (3) He threw blood around. She embroidered on what a dastardly deed this blood-throwing was. Used the term 'terrorism' to describe ' Mr. Berrigan's' acts. Repeatedly talked of the sailors being afraid. How would Mr. Berrigan feel if someone vandalized his home and when he was there? The sailors experienced his conduct as egregious [she loves this word] and violent. This is not about political or religious views. It is about 'terrorizing, dangerous conduct'. Mr. Berrigan showed no compassion for the sailors. She spent a lot of duplicated effort to insist that the defendants must be treated just like everyone else even though they seem to think they're special. Referenced the defendant's 'attitude' in negative terms.

Prosecution asked for middle range of sentencing, for supervised release, and for restitution -- jointly and severally.

Ramsey Clark asked to bring character witnesses.

Judge Carter -- There's no issue of character here.

RC -- Character witnesses bear on sentencing.

Judge -- There's no issue of character.

RC: Loss should be apportioned in accordance with responsibility of individuals.

Judge: There's no distinction of role. I find them equally culpable. Will divide the total damages ($28k +) by six. Each defendant to pay one sixth.

RC: This has to do with sentencing also--the effect of imposing longer sentencing on each defendant.

RC: My second point of a legal nature. The Court has no evidence of diminishing value caused by the conduct of the defendants. No evidence has been brought to address the law regarding diminishing value of the property.

Judge: The amount is $28K+. There was no issue raised at the trial and I will not reopen the question.

RC: Restitution is discretionary not mandatory. If it is mandatory, then the manner of payment is discretionary. The Court must consider the financial worth, the income, the financial responsibility of people. The manner of payment need not equal the amount owed because of impossibility or inability to pay. The defendants all have chosen lives of poverty . . . The Court has power if not duty to impose a manner of payment of restitution that would be no payment unless or until they acquire money or property by some means. The order for restitution should prescribe . . . no restitution until individual defendant acquires property or money by gift or labor or . . .

Judge: The Court requires a schedule of payment. Supervised release is placed in play . . . . . I have grave concern about the efficacy of restitution, but I have read the statutes, the literature . . . My October 8 decision -- No alternative. There must be a restitutionary decision. The law says it must be embodied [in the sentence]. At a future time some other court may make a decision as to what should be done in view of inability to pay. . . . I am required under present circumstances to embody a restitutionary order.

RC: I disagree on the mandatory nature of that requirement. The Sentencing Guidelines distinguish between restitution itself and the manner of payment . . . It is wasteful to leave this to a later time and contrary to the guidelines.

Judge: Dividing [the $28K+] by six is fair and appropriate because of the unique circumstances and commitments of the defendants. I have devoted more time to that issue than in any other case . . . Leave it to the future whether some remission should be given.

RC: One sixth of the total cost of repair allocated to each. That determines the AMOUNT of restitution. It does not prescribe the MANNER of restitution. Both the statute and the Guidelines prescribe that you can embody a nominal repayment schedule or none. If at this time you see that they have nothing with which to pay restitution you could provide that should they inherit or otherwise have income . . . etc. . . . To order a manner of payment when no money is available is contrary to the statute and the Sentencing Guidelines.

RC: The other issue is the QUESTION OF DEPARTURE.

Judge: There is no issue about departure. I will not consider departure.

RC: The sentencing guidelines require that where they do not adequately take into consideration matters that would increase or decrease sentencing then the Court should do so. Chapter 9 guidelines call this 'the core of sentencing procedure'. The Supreme Cort last year in the case of Stacy Coon . . . . [Rodney King case]. . . spoke in forceful terms of the duty of the Court in considering the Sentencing Reform Act and both bases that it provides for departures. And, importantly, that it consider departure where the guidelines give inadequate consideration of factors before the Court for sentencing. Here we have unique circumstances . . .

Judge: Those considerations have never been generated. We have a rule here that everyone know the issue with appropriate notice so that arguments can be developed . . . The rule is regularly enforced. There has never been prior to now any request for departure. You can make the argument to the Court of Appeal, but it is not before this Court at this time.

RC: The Guidelines did not contemplate circumstances of this nature . . . This is the 30th anniversary of the Baltimore Four [Draft Board case in MD] etc etc. [History of Berrigan action] . . . This is no ordinary property crime . . Unique contribution to humanity . . . Jefferson said -- To punish people who act on conscience except . . . is to make a bad mistake because you cannot coerce conscience. Their acts are symbolic. They are trying to tell the world that ships like The Sullivans . . . related to humanity. They can launch 500 cruise missiles with nuclear warheads. Rarely are courts called upon to sentence people for conduct such as that. The Sentencing Commission never dreamed of an application of these Guidelines to that type of conduct. It becomes irrational to take Guidelines fashioned from our experience with ordinary property crimes, based on our materialism, our greed, and apply them to someone who has acted for the public good to protect life and protect the future. It is that departure, that has been stated to be in the goal of sentencing process. This Court needs to consider these factors. They give the Court, as I believe the statutes and Guidelines, the discretion to depart substantially and to follow in the interest of justice if it is possible to do so, so long as you state the reasons under Chapter 9. It is our request that you consider this. In support of that goal, we call two character witnesses.

Judge: How long will this take?

RC: Five to ten minutes.

Judge: All right.

Bill Slavick: [has a written statement that he can share]. . . . Fidelity to conscience and service to neighbor. . . An heroic citizen . . .[referenced the $3,700 tracking device] . . . Heroic character. State Judge in Maine called him 'the conscience of the country.'

Daniel Berrigan, SJ: 30th anniversary of the first draft board actions. Told anecdote of how he left jail as he heard Philip had been arrested for his action. Called his mother who said, 'If I understand it, you're out and Philip is in. . .' Referenced 'criminal family' and 'criminalized Order'. Told how they were brought up to be faithful to conscience and let the chips fall where they may. Referred to another Maine judge who said Philip was 'the conscience of his generation.'

RC: Philip Berrigan has studied international law intensively. . . . . . . . International Court of Justice to General Assembly of UN -- Nuclear weapons in the same category as chemical and biological weapons. Obligation to act on that and on the Nuremberg principles etc. . . [Philip Berrigan] believes he has a duty to international law not to be silent in the face of threats to human existence, but to act non-violently to save us all. [He then read from Restitution Guidelines].

Judge: Does the Government wish to be heard?

Prosecutor: No.

Judge: Philip Berrigan . . . .

Berrigan: [Has prepared statement that we can read. Stronger more effective voice and delivery than the judge's -- The latter mumbles a lot]]. . . Said he wanted first to explore U Thant l967 statements regarding the Vietnam War and second our Lord's teaching about watchfulness as recorded by St. Mark. U Thant, while Secretary General of the UN said that if American people knew the truth about the war in Vietnam, they would stop it . .

People still don't know the truth about that genocidal war. . If the American people knew the truth about our nuclear gamesmanship and interventionism, they would stop it. Obviously they don't know the truth or they would stop it. I suspect that Judge Carter and the Prosecutor don't know the truth or their lives and roles wold be utterly different . . . .

I've been a student of war since the Cuban Missile crisis . . . . . . .

I don't claim any corner on the truth, but I do know enough to say NO to lies and bribes and waste and treachery, and to know that God did not provide one law for the government and another for ordinary folks like us. [Applause from group in court. Judge warns they will be expelled if there is interruption.] If it is criminal for me to kill, it is criminal for my government also. . . [Spoke of consulting the judgement of the best minds in Western Europe on peace.

Noone accepts the consequence of jail for an illusion. If one goes to prison deluded, one day in a cell will take care of that. I have done eight years in jail -- I am as weak and fragile as the next person. But what God said to Paul, [God says to me / us]: 'My grace is sufficient for you.'

Let me return to how ignorance of the truth cripples people and institutions. If the Judge and Prosecutor knew the truth and knew what we did in Hiroshima and Nagasaki in l945, they would recoil in horror. If this Court knew of American conduct during l5 years of the Cold War, the Judge, the Prosecutor, the marshalls would not be here today. If this Court knew . . . . [Referenced series of violent U.S. interventions . . .] The existence of these hellish weapons is a threat, and that threat is illegal . . . William Cohen has admitted recently that we must eventually disarm. . .

Love our neighbor as ourselves . . . including the neighbor who is enemy . .

Here is the advice of Jesus concerning the sleep of ignorance.

Watch therefore. You do not know when the Lord of the house is coming, whether in the evening or at midnight, or at cock crow, or in the morning - lest he come suddenly and find you asleep. And what I say to you I say to all: Watch.

Jesus . . . charges us to be sentinels . . .

Prosecutor -- Nothing further

RC -- Nothing further

Judge: [mumble, mumble . . . proceeds with prepared decision] The Court has taken into account the entire contents of the Trial, etc etc etc . . . Loss is $28K+ without dispute. All the defendants are equally culpable [mumble, mumble] . . . Guidelines -- the 21 to 27 month range. Middle of the range. TWENTY-FOUR MONTHS plus TWO YEARS SUPERVISED RELEASE is mandated. Not eligible for remission of probation. Restitution is appropriate. One sixth of $28+K = $4,703.89. There were no prior requests for Departure. Locally required procedure was not followed to allow pre-trial, pre-sentencing preparation.

The record will indicate if I were not to rely upon procedural default and consider it on the merit, I would find there was no unique circumstance about this case that would warrant a departure under the Guidelines and case law since the time the Guidelines were put into force. The bottom line is that the Court is called to assess whether the conduct was in violation of the law and warrants punishment. I in no way base judgment on the religiosity or morality or sincerity of the defendant. I recognize . . . . with sympathy and understanding, but the Court's role is to determine if punishment should be embodied for that conduct and the extent of the punishment. . . .

PHILIP BERRIGAN STANDS. Sentenced to 24 months prison on each count, to be served concurrently; supervised release 24 months -- no committing of other crimes etc. etc.; $4+K restitution to be made. Plus mandatory special assessment of $200. Maximum sentence appropriate because of the long record plus the attitude shown by his adamant position through the period of time that he would not follow the requirements of this Court. No basis for extension of leniency. Justified 27 month sentence, but persuaded by the prosecutor to 24 months. You have the right to appeal . . . .etc., etc. . . .

========== Judge leaves. Supporters present cheer Philip Berrigan as he leaves the courtroom, shackled.