On May 15, 2013, Ken Ward and Jay O’Hara anchored their lobster boat in the shipping channel off the Brayton Point Power Station in Somerset. Flying an American flag and a banner reading “#coalisstupid,” the two men blocked the delivery of 40,000 tons of Appalachian mountaintop coal to New England’s largest coal-burning power plant for a day.
At their trial, scheduled for Sept. 8 in Fall River District Court, Wood and O’Hara face charges of disturbing the peace, conspiracy, and motorboat violations. Although conviction could result in nine months of jail time, they’ll admit to everything. They’ll argue that it’s really climate change and the government’s ineffective policies that should be on trial.
Then they’ll ask the jury to find them not guilty by reason of “necessity.”
This trial will mark a pioneering invocation of the necessity defense, the longstanding legal doctrine that it is acceptable to commit a crime if you are preventing a greater harm. Traditionally, this defense is used for situations like a prisoner fleeing from a burning jail, but Wood and O’Hara’s lawyers will make the more sweeping argument that their illegal interference with a coal delivery was justified in light of the greater danger of catastrophic climate change. In past cases, judges have blocked the attempt to use “necessity” as a defense by climate protesters. In this case, the defense has not been challenged. That means that in Bristol County, for the first time, the climate necessity defense appears bound for an American court.
The argument might not work, depending on what the jury thinks. But winning an acquittal is not necessarily the point. For political defendants, the necessity defense forces courts to address the moral issues underlying criminal acts of protest, drawing attention to activists’ causes and claims. To build a case, Ward and O’Hara will essentially put the government on trial, arguing that the state of the climate is such a dire emergency, and government policy so inadequate, that civil disobedience is legally excusable.
As strongly as the activists feel about the chance to argue their cause in court, not everyone agrees that political necessity defenses belong in court. Though they’ve been used to draw attention to other causes—the Vietnam War, South African apartheid—critics argue that it’s a misuse of the court system to ask juries to debate policy, and that protesters engaged in civil disobedience should accept the consequences of their actions. Even among activists, some think the necessity defense is, at best, a novelty that won’t particularly help the cause.
Whatever the tactical merits of Ward and O’Hara’s approach, however, their trial does suggest something about the position that climate has reached on the public agenda. In the past, the intrusion of major policy issues into otherwise unremarkable court proceedings has signaled a critical shift in the status quo. With the climate and morality being debated in a Fall River courtroom, we might well be seeing a similar sea change in how the public thinks about protecting of the atmosphere.
The defense that Ward and O’Hara are preparing to present has a long pedigree. For hundreds of years, courts and juries have let defendants off the hook when their crimes were deemed necessary to prevent something worse from happening. In 1551, an English merchant successfully argued that he was justified in throwing precious cargo off his ship to avoid capsizing during a severe storm. In 1853, the mayor of San Francisco was found not liable for destroying a number of homes to halt the spread of an enormous fire. In 1920, an Arizona posse was acquitted after kidnapping and deporting a group of radical union members allegedly interfering with the war effort against Germany.
Political activists began using the defense during the Vietnam era, hoping to take advantage of widespread popular resistance to the war. In the 1970s and 1980s, the defense was frequently presented by antinuclear protesters and by critics of US military policy in Central America. Later, antiabortion demonstrators frequently attempted the defense after arrests at abortion clinics. The tactic has met with sporadic success. In 1985, activists were acquitted of trespass charges after an apartheid protest at the South African consulate in Chicago; two years later, Amy Carter, the president’s daughter, was found not guilty of trespass and disorderly conduct by a Northampton jury following a demonstration against CIA recruitment policies.
Whether or not a necessity defense gets protesters off the hook, it turns the trial—deliberately—into a policy referendum rather than just a legal proceeding. Defendants pleading necessity must convince the jury that their actions were required to avoid a “greater evil”—which means, as part of that argument, the jury hears about this “greater evil” in detail. And juries are essentially asked to pass judgment on the morality of government policy and their fellow citizens’ resistance to it.
This way of framing the issue allows activists to appeal to basic feelings of unfairness and injustice. “Underlying these protests is the sentiment that the government itself is acting illegally—the government’s permission to the fossil fuel companies amounts to property damage and amounts to a breach of trust to the American people,” said Mary Wood, a professor at the University of Oregon School of Law and author of the book “Nature’s Trust,” which advocates a more aggressive and consistent approach to environmental regulation.
Getting to trial can be the difficult part. Judges may find that there was no possible connection between the defendants’ behavior and the evil they sought to remedy, or that the protesters had legal alternatives to their criminal action. In either case, the defense is thrown out.
In 2008, six British Greenpeace activists successfully argued the necessity defense to avoid trespass convictions after a protest at the Kingsnorth coal plant. In the United States, however, there are no reported cases of a judge allowing the defense to go to trial in a climate case. In 2011, environmental activist Tim DeChristopher was sentenced to two years in federal prison for disrupting a Bureau of Land Management auction to protest the agency’s illegal opening of public lands to fossil fuel development. A federal judge ruled that his necessity defense was barred because his protest was an ineffective means of combating harmful land sales.
DeChristopher, who has been organizing publicity and support for the lobster boat defendants, believes that a series of acquittals based on the necessity defense could operate as a “lever for political change,” signaling to the public that the law no longer lines up with our moral priorities.
As valuable as it may be to protesters, there are good reasons for judges to be leery of the defense. Unlike traditional necessity defenses in which there is a close causal connection between the defendant’s action and the desired result—for example, stealing food from a cabin and avoiding starvation—most activists engaged in civil disobedience don’t achieve immediate results through their actions. In a 1991 case, United States v. Schoon, the Ninth Circuit affirmed the conviction of three demonstrators who had spilled blood on the floor of an IRS office to protest US policy in El Salvador; their necessity defense had been denied by the lower court. Judge Robert Boochever, writing for the Ninth Circuit, decried the defense as a “‘back door’ attempt to attack government programs.” Without the hope of actually remedying an evil, Boochever argued, protesters should not be allowed to escape punishment just because they believed their actions were moral.
Use of the necessity defense may also force juries to act in a role to which they are unsuited. Andrew D. Leipold, a professor at Illinois University College of Law and an expert on criminal procedure, points out that jurors are already asked to make extremely difficult decisions regarding truth, blame, and punishment. Asking them to resolve complicated policy debates—and by a simple response of “guilty” or “not guilty”—is unwise.
And when juries simply decide they disagree with the law, Leipold points out, the results may not be what activists bargain for. At times, juries have decided to acquit defendants for what now seem like terrible reasons: In the Jim Crow South, for example, whites frequently escaped punishment for crimes against black victims.
“Trials are not designed to [decide policy questions],” said Leipold. “When you try to get them to do it, I don’t think they’re very good at it. The rules of evidence are certainly not designed to account for it.”
The awkward fit between major policy discussions and a local courtroom is, of course, part of what appeals to the Somerset protesters: It’s a way to bring new energy to a familiar debate. They’ve enlisted national figures to testify in their defense—climate scientist Jim Hansen and Bill McKibben, founder of the environmental organization 350.org, are expected to appear in court. And, in a nod to the legacy of civil disobedience, Ward and O’Hara named their lobster boat the Henry David T.
If the Fall River jury accepts Ward and O’Hara’s arguments and acquits them—and there’s no guarantee that it will—it will be following in a centuries-old tradition that goes back much further than the modern defense tactic. Under British rule, colonial juries consistently refused to convict smugglers, as an indictment of deeply unpopular trade restrictions. Juries in abolitionist New England were famous for acquitting violators of the Fugitive Slave Act in the lead-up to the Civil War. Prohibition violators frequently escaped conviction by their peers in the 1920s. More recently, juries have let so-called mercy killers like Dr. Jack Kevorkian off the hook for murder.
In each case, the jury and the defendants have agreed that something more than the fate of a single individual was at stake; what’s occurring is a referendum on the wisdom of government policy itself, with the suggestion that the normal channels for changing it are inadequate.
Such trials can be an arena in which real change can begin to take place, argue Charles F. Abel, a professor of government at Stephen F. Austin State University in Texas, and Frank H. Marsh, a professor of philosophy at the University of Tennessee at Knoxville, in their book “In Defense of Political Trials.” Such cases, they say, not only express shifts in public opinion, they amount to “a form of collective negotiation and exchange among the individuals and groups affected by the different possible outcomes.”
From the Scopes case to the trial of the Chicago Seven, the courtroom has served as a bellwether for where popular sentiment is headed. Ward and O’Hara are wagering that the law and public sentiment have caught up with them and their lobster boat. If their climate necessity defense succeeds, then thousands of climate activists like them will hope to tap into the same wellspring of popular indignation, asking juries—if they can get to them—to acknowledge what their government won’t.Joseph E. Hamilton is a student at Harvard Law School and has interned for the Civil Liberties Defense Center.