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The Prosecution of Environmental Activists: District Attorney Sam Sutter Sets Bold Example for Other Prosecutors

When Bristol County District Attorney Sam Sutter surprised two environmental activists and reduced all criminal charges against them to civil infractions, it was an unusual and rare example of a prosecutor exercising his conscience and using prosecutorial discretion while still upholding the rule of law. And it led activists to praise him for his courage as someone who had linked his office to the need for leadership and action on climate change.

Ken Ward and Jay O’Hara had used a white lobster boat, which they called the Henry David T, in a direct action in May 2013 to block a 40,000 ton coal shipment from making its delivery to the Brayton Point power plant.

The action successfully stopped the shipment of coal to the largest coal plant in the New England region. It also resulted in them being charged with disturbing the peace, conspiracy to disturb the peace, negligent operation of a motor vessel and failure to act to avoid a collision of a boat. If convicted, Ward and O’Hara could have spent a couple of years in prison.

The activists were set to go on trial and were planning to argue the “necessity” defense, that they had no choice but to act because everything else had failed thus far. Stunningly, Sutter could not ignore the fact that he agreed with them—the world is at a crisis point when it comes to climate change.

“Because of my sympathy with their position, I was in a dilemma,” Sutter said afterward, according to the Boston Globe. “I have a duty to go forward to some extent with this case and to follow the applicable case law, but they were looking for a forum to present their very compelling case about climate change.”

Sutter came out of the courthouse on September 8 to explain what his office had done.

“The decision that Robert Kidd and I—that’s the assistant district attorney who handled this case—reached today was a decision that certainly took into consideration the cost to the taxpayers in Somerset, but was made with our concern for their children, the children of Bristol County and beyond, in mind,” Sutter stated.

“Climate change is one of the gravest crises our planet has ever faced. In my humble opinion, the political leadership on this issue has been gravely lacking,” Sutter declared. “I am heartened that we were able to forge an agreement that both parties were pleased with and that appeared to satisfy the police and those here in sympathy with the individuals who were charged. I am also extremely pleased that we were able to reach an agreement that symbolizes our commitment at the Bristol County District Attorney’s Office to take a leadership role on this issue.”

Sutter appeared on “Democracy Now!” two days later. He described more details on how this outcome had occurred:

…[T]hrough a very open discussion, which I like very much, there was a synthesis, and we came up with what I thought was really the ideal resolution. This was an act of civil disobedience, so this should be treated as a civil infraction. And I was extremely pleased when we broached the idea with the defense attorneys and they embraced it. And after that, it was simply a question on Monday morning of determining what was a fair figure for the restitution. Once again, the defense attorneys showed great reasonableness. So, I thought that aspect of the case and what we did was not unusual. I thought that was prudent, reasonable and wise…

Prudence, reasonableness and wisdom do not typically factor into prosecutors’ decisions when faced with cases involving environmental activists. All too often a person’s commitment to engaging in civil disobedience for a cause is perceived as a sign that a person is committed to law-breaking and needs to be punished.

Climate activist Tim DeChristopher served twenty-one months in prison after engaging in nonviolent direct action. He was prosecuted for bidding on land in December 2008 to stop oil and gas companies from obtaining leasing rights to exploit resources around the Arches and Canyonlands National Parks in southeastern Utah as well as nearby the Book Cliffs in eastern Utah.

DeChristopher sought to argue the “necessity” defense, that drilling for resources would pollute the lands and contribute to climate change. However, at trial and during appeal, judges prohibited the argument. On appeal, judges determined that prohibiting the argument was justified and noted statements where he had said “he would ‘continue to fight’ and it was ‘fine to break the law.'” These were “relevant sentencing factors” to deter future violations and “promote respect for the law.

Barbara Carter, Lisa Leggio and Vicci Hamlin of the Michigan Coalition Against Tar Sands (MICATS) “locked down equipment” at an Enbridge construction site and stopped construction of a tar sands oil pipeline for one day. They were arrested and charged with misdemeanor for trespassing and a felony for resisting and obstructing a police officer. They spent over a month in a county jail before being sentenced to time served and 13 months probation.

Enbridge was responsible for the largest inland oil spill in United States history in 2010. Over a million gallons of tar sands oil polluted the Kalamazoo River and Talmadge Creek. The MICATS activists wanted to argue that they had acted out of “necessity,” to prevent another spill. The judge did not want to hear anything about pollution or climate change. He would have considered their act as “necessary” if they were stopping an oil spill in progress, but since that wasn’t this case, the activists could not raise the issue of Enbridge or tar sands at trial.

The jury found them guilty of all charges, and the judge immediately had the activists jailed and revoked their bond.

It does not always end this way though. In April 2012, prosecutors in Vermont dropped criminal trespassing charges against 136 protesters arrested at the corporate offices of the Vermont Yankee nuclear power plant. According to the Brattleboro Reformer, “Windham County State’s Attorney Tracy Shriver decided against moving forward with the charges given the limited resources of her office and the courts.”

When activists are committed to their direct action, including making the case for why they did what they did at trial, that can overwhelm the system.

Activists from Seattle, who took action and blocked oil trains at risk of explosion, are facing charges and may get to try a “necessity” defense at trial. They took action because highly volatile tar sands oil is being transported on tracks that ran under Everett and Seattle.

There was a horrible tragedy where a train carrying oil in Canada exploded and killed 47 people in July 2013. While they are concerned about fossil fuels fueling climate change, they also don’t want the same tragedy to happen in their community.

Very few prosecutors in office would refrain from treating activists who engage in direct action as recidivist criminals who need to be turned into examples so others do not follow their lead.

Sutter described himself as a “passionate environmentalist.” That may be unique among prosecutors in the United States and may be why this outcome is unfortunately unlikely to be repeated. But what is undoubtedly even more unique are elected officials, who are willing to actually use their office to take the actions necessary to disrupt business as usual and recognize the world is in a climate crisis.

Honestly, Sutter’s action could not get enough attention. The more it is held up as a model, the more likely it is to influence another district attorney who has to handle these kinds of cases.

Sutter did not just take a conscientious action that supported his commitment to environmentalism, but he showed if a government must hold environmental activists accountable it can do so without severely disrupting their lives. That is the way it should be.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."