It is rare to have a court case where all parties involved agree on the facts of what occurred but dispute whether or not what occurred was a criminal act. DeChristopher and his lawyers, Pat Shea and Ron Yengich, won’t say if they have been offered a plea deal but, as pretrial preparations continue (an actual trial is unlikely till the fall of 2009), speculation has focused on if they will attempt to present evidence of climate change to a jury. The U.S. Attorney’s Office has already filed a motion to block any evidence that is not immediately germane to the events at the auction.
“What I faced when I was there in the auction,” DeChristopher says, “was this choice … of taking the action that I did and disrupting the auction, or being complicit … in this destruction of our land, destruction of our democracy, and the destruction of our climate. And that is something we want to show in the trial, that climate change presents such a serious threat to our future that it creates a moral imperative that is higher than just following the law as it exists.”
Pat Shea has elaborated on this strategy, noting that it is called the “necessity” or “lesser-evil” defense and that it has a long history in American jurisprudence. “A crucial question will be: Was the danger presented imminent? Most courts have defined “imminent” as in the next second, or immediately life-threatening,” Shea says. “But, when you are talking geological time [as is the case with climate change], a month, six months, a year is imminent.”
U.S. Attorney Brett Tolman, aside from a few platitudes about preserving the rule of law, has not stated publicly why his office decided to press charges against DeChristopher. Punishing civil disobedience is not like punishing other crimes. Not only is the question of deterrence much more complicated, but punishing civil disobeyers means making a political judgment about where the real breach of justice occurred. Did the fraud lie in DeChristopher’s false bids or in the auction process itself?
Punishment also poses questions for the disobeyer: Are disobeyers required to submit to the court’s verdict? Or does submitting to punishment only confer legitimacy on the laws the disobeyer broke? DeChristopher does not seem especially interested in delving into this except to explain the conclusion he has reached in his own mind.
TDC: You know, that was the choice I was making at the time. Because I knew there would be serious consequences. I figured that I would most likely go to prison.
LG: Even then, as you were spontaneously taking this action, you knew that?
TDC: Yeah, I realized that at the time. And the decision that I made at the time was that I can live with the consequences of going to prison, but I really can’t live knowing that I had an opportunity to avoid this unprecedented human suffering that we are on track for and that I didn’t take it.
LG: You would be separated from all of this [I wave my hand at his back yard, his house, the gully below and the distant mountains], and you are at peace with that?
LG: But aren’t you doing violence against yourself? Couldn’t you be doing more good—with your media-savvy and organizing skills—out of prison?
TDC: The most powerful effect I can have is to speak with my own life and to speak with my own example. No one can be a leader and hold back in what they are willing to do. If I was going to say, “Well, I’m really good at speaking to the media, so I shouldn’t have to be the one to go to prison—so I’m going to find other people to make that sacrifice.” If I were to say that, then I wouldn’t be a leader anymore.
LG: Do you ever, in private, have any doubts?
TDC: Not in regard to my own actions. The only dark moments of doubt that I have are whether people will really stand up and take the action that we need to.
LG: So you are totally resolved?
The last part of our exchange hangs there, as the interview ends and DeChristopher shows me back around to the front of the house. It continued to bother me as I climbed into my pickup truck and pulled away from his house, spewing more CO2 into the atmosphere.
And, it bothers me now as I write this. The Catholic theologian Thomas Merton wrote, “Faith means doubt.” For persons of conscience—saintly or secular—doubt is a necessity. It is the test—different in each case, but always essentially the same in nature—that Orwell wrote of.
If members of Peaceful Uprising are looking to DeChristopher for confirmation of their faith, there are others, like me, who look for confirmation of their doubt. It is probable, if not likely, that some Peaceful Uprising members will carry out acts of civil disobedience in the future. But, those actions alone won’t be effective enough to bestow legitimacy on the enterprise as whole. In order for that to happen, they need others, many others, to be inspired to take similar actions. They need people like me. But, after all the questions raised here—about acting within the system versus acting outside it, about what nonviolence means, about what constitutes an imminent necessity, etc.—how can one not have doubts about taking those actions?
And therein lies the problem. On an intellectual level, I can understand and defend DeChristopher’s actions at the auction. But I cannot see myself performing them.