Putting the Climate Necessity Defense in Front of Juries

By denying climate activists the right to present their cases to a jury, judges are cutting democracy out of political trials

Ted Hamilton

Political activists challenging the ascendancy of President Donald Trump are increasingly availing themselves of the criminal legal system as a means of defending their ideas and confronting government repression. From Inauguration Day protesters who have pledged to go to trial to combat unprecedented felony charges to climate campaigners seeking ratification of their anti-fossil fuel industry actions through the climate necessity defense, courtroom activism has become an important front for the grassroots opposition. But cases from the climate movement suggest a worrying trend: judges are denying climate activists the right to present their cases to a jury, effectively banning discussion of the world’s most pressing crisis from the courtroom.

Photo by John Brusky

Building on a healthy tradition of criminal trials as political showdowns and relying on American’s fascination with the criminal process, the new wave of protester-defendants seeks to use the jury trial as a supplement to our broken electoral and lobbying systems. They’re in good company. In 1733, a jury refused to convict New York newspaper editor John Peter Zenger for violating a law that made it a crime to criticize the royal governor; the case was foundational in developing freedom of the press. In 1969, the infamous Chicago Seven conspiracy trial against political activists involved in protests at the Democratic National Convention served as a crucial dramatization of the cross-cutting political and cultural attitudes of the day.

In political trials as in others, juries play an essential role. They provide a check against the bias of prosecutors and judges. They democratize an otherwise elitist and hard-to-understand forum. They give citizens the opportunity (or at least the obligation) to engage in a major part of civic life.

Crucially, juries guarantee that defendants, including political activists, will be judged by their peers rather than by faceless bureaucrats or punitive authoritarians. The Sixth Amendment requires that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In Chambers v. Mississippi, the Supreme Court ruled that the right to present evidence to a jury was a basic requirement of due process. Availing themselves of this right, protesters can ask their neighbors judge the value or criminality of their activism.

At least, that’s how juries are supposed to work.

The reality is much less inspiring. In a country that claims to have invented modern democracy, more than ninety-five percent of criminal cases end in guilty pleas. In other words, for every twenty times that a prosecutor accuses someone of a crime, she might have to go to trial once. The jury trial is thus a feature of a tiny minority of the many millions of charges that pass through federal and state courthouses every year. So juries may be essential, but they’re also ornamental. Their democratic function has been nearly eliminated from the process of proof and punishment in modern America. (That function, it should be noted, has always been compromised by structural racism in the criminal legal system and the weakness of rules guaranteeing a fair cross-section of the community in the jury pool.)

And even when defendants do demand a trial — as is the case with the current crop of climate advocates turned courtroom activists — judges often do their best to suppress jury participation, reserving important questions of proof for their own discretion.

This is scary for political protesters, and it’s bad for the last traces of democratic participation that still remain in our criminal legal system.

Two recent cases from the world of climate activism illustrate the bad faith and weak arguments behind courts’ suppression of juries. Both involve attempted use of the climate necessity defense: a legal argument that protester-defendants use to justify their actions by showing that it was necessary to commit an act of civil disobedience to avert the threat of climate catastrophe. It’s a relatively new strategy for climate activists, but political necessity defenses have succeeded in the past for anti-nuclear power protesters, AIDS patient advocates, and critics of American foreign policy. Because the climate necessity defense requires decisions about the seriousness of the climate crisis and the appropriate means of addressing it, it naturally invites the participation of the jury, which in our legal system is tasked with deciding questions of fact and in making the final assessment of guilt.

Last January, climate activists known as the “Delta 5” brought a climate necessity defense after blocking an oil train in Bellingham, Washington. They argued that their protest was necessary to prevent the safety risks associated with oil-by-rail and to inspire grassroots action against climate change, which government regulators had failed to adequately address. At trial, the activists called expert witnesses on rail safety and climate science and made a compelling argument that legal alternatives to civil disobedience had failed because of government intransigence and corruption.

Even though evidence of necessity had already been presented, the Delta 5 jury would only be allowed to acquit by reason of necessity if the judge decided to include the necessity defense in his jury instructions (which typically describe the charged crimes and guide the jury on how to follow the law in their deliberations). It didn’t seem a high bar to clear: in Washington, defendants must offer “substantial evidence” of necessity in order to have a jury instructed on the defense. As in other jurisdictions, this threshold test is simply designed to ensure that courts don’t waste their time by asking juries to consider any and every justification that a defendant might come up with. A defense is barred only if no reasonable juror could possibly accept the evidence offered to support it.

But in the Delta 5 case, the judge decided — after four days of testimony — that the defendants had failed to present sufficient evidence to merit a necessity instruction. Recognizing that the defense had amply described the realities of climate change, the judge nonetheless ruled that “[t]he evidence presented from the defendants fails to establish that there was no reasonable legal alternative to their acts.”

Maybe he was right. Maybe no reasonable juror could have believed that the protesters’ actions were necessary, and it was okay for a judge to make that decision for the jury.

Except — well, journalists and defendants spoke to jurors after the trial. And they confirmed what the judge had refused to believe. According to Earth Island Journal: “In the halls outside the courtroom, three members of the jury admitted they would have acquitted the defendants had they received a necessity instruction from the judge. They also thanked the defendants for giving them an education on climate change, agreed to support the Climate Disobedience Center [a climate activist group] in future cases, and signed up with defendant Abby Brockway to lobby the state on oil trains.”

Other sources likewise reported how the jurors agreed with the defendants and came to share their concern over climate change. Put simply, the judge’s ruling was incorrect: reasonable jurors did believe that the defendants had no legal alternative to their protest, and they would have acquitted by reason of necessity. There was no reason to withhold the necessity instruction.

(The Delta 5 are currently appealing their conviction. My organization, the Climate Defense Project, plans to file an amicus brief supporting their argument.)

This sad story repeated itself this month in another Washington climate activist case. Ken Ward stood trial on felony charges of sabotage and burglary for entering a Kinder Morgan pipeline facility in Anacortes, Washington last October and turning a valve to cut off the flow of tar sands oil. He acted in coordination with other so-called “Shut It Down” protesters, who together succeeded in temporarily blocking all tar sands oil flowing into the United States from Canada, and whose trial will unfold over the course of the summer and fall. (Read more about Ward’s decision to participate in the Shut It Down event in his essay for Earth Island Journal.)

In January, Ward’s judge ruled that evidence of climate necessity would be prohibited at trial, making the same call that no reasonable juror would buy Ward’s argument. (At the same hearing, the judge also called into question the reality of climate change). Despite the severe limitation that this put on Ward’s ability to defend himself, the jury in Ward’s first trial was unable to reach a verdict on either charge, resulting in a mistrial. This should have been a clear signal that reasonable people might find Ward’s argument compelling. Nonetheless, the judge refused to allow necessity evidence in a second trial, which ended last month with a conviction for burglary and another hung jury on the sabotage charge. (My organization assisted in Ward’s defense.)

Just as in the Delta 5 case, post-trial polling of the jurors in this case immediately revealed the error of the judge’s rulings. Members of the jury told Ward that in deliberations they had sought, but failed to find, a legal way to acquit him — precisely the purpose of the necessity defense. Like the Delta 5 jurors, they had learned a great deal about climate change and intended to take action to address it — precisely the purpose of courtroom activism.

These two cases clearly demonstrate that judges in necessity cases are ruling incorrectly when they assume that the defense’s elements cannot be met because reasonable jurors would not accept them. That judgment is incorrect as a factual matter. Going forward, advocates must press judges to be more honest in their necessity assessments, and judges in turn must consult the evidence from past cases to see that climate necessity defenses are not the fanciful exercises they imagine them to be — they’re accurate portrayals of what many Americans feel about the seriousness of the climate crisis.

(The only case in which a jury has been allowed to consider the climate necessity case came in Britain in 2008. The jury acquitted the protester-defendants).

Just as importantly, courts need to stop suppressing the political role of juries in the criminal process. Juries have a right to hear and defendants have a right to have heard the ultimate questions in these activist trials, no matter whether those questions are politically rife. Judges must stop making arbitrary rulings to avoid testimony or deliberation on controversial topics. By preventing juries from making judgments on difficult political propositions, judges are deciding those questions themselves — a slap in the face of the legal system’s democratic ideals. Even if juries are imperfect vessels of popular deliberation, they’re better barometers of public opinion than highly educated, professionally risk-averse jurists.

As we see more activists taking their campaigns from the streets to the courts, it’s more important than ever that the jury system work. If criminal trials are prevented from acting as a venue for political debate, we will have lost yet another erstwhile civic forum to elite control.

Not all judges place themselves above the jury. In 2015, Alfred Goodwin, a judge on the federal Ninth Circuit, issued a clarion call to his fellow members of the bench to address climate change. Reviewing a history of climate change cases decided on technicalities and arcane doctrines, Goodwin wrote: “The current state of affairs . . . reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits. “

The legal system is a necessary, but by itself insufficient, part of our response to the climate crisis. And the way in which we address climate change is intimately related to how we tackle other social issues, many of which will also find their way to criminal courthouses as activists resort to civil disobedience. The stakes of these cases are simply too high for them to be decided by judges splitting hairs.

Let the juries back into the courtroom — and the let the activists stand in front of them, making their best case for the future.