Tribune criticism of Judge Benson is unfair

Tribune criticism of Judge Benson is unfair

By Ken K. Gourdin

Author’s Note:   This op-ed was submitted to (but not published by) The Salt Lake Tribune in response to the editorial “A sad day: Benson ruling unconscionable,” which appeared in the Tribune on July 29, 2011 and is available at the following address (last accessed July 30, 2012):

The Salt Lake Tribune recently denounced U.S. District Judge Dee Benson on two counts. Benson first came under criticism for refusing to allow Tim DeChristopher, who placed fraudulent bids for oil and gas leases at a Bureau of Land Management auction in 2008, to invoke a necessity defense. The Tribune further criticized Benson for sentencing DeChristopher to two years in prison.

Benson was right to prevent DeChristopher from arguing a necessity defense for several reasons. First, although global warming and what ought to be done about it are sobering issues which merit serious attention, they involve policy questions which are best resolved not in the courts, but rather through legislative and administrative processes.

Second, as desirable as any given environmental reform might be, and as many harmful consequences as any such reform might prevent, courts are poor fora for deciding environmental questions because of the potential for unforeseen harmful economic impacts arising from such decisions. Environmental and economic impacts require careful balancing which, again, is best left to legislative and administrative processes.

Third, to what extent human activity causes global warming versus other, non-human causes arguably is an open question. At least, it is an open enough question that no court could render a definitive answer, even if the court (rather than the realm of scientific inquiry) were a proper forum for deciding it.

Fourth, the defense of necessity is usually only available if one wishing to invoke it has no other viable alternatives. Whether DeChristopher liked them or not, there were other alternatives available to him involving the legislative and administrative channels previously mentioned.

And finally, the link between DeChristopher’s action and the accomplishment of his stated objective is too tenuous to support a necessity defense. As University of Utah law Professor Paul Cassell recently pointed out to the Tribune, the danger of climate change, however serious, is not imminent, nor is the tie between the threat and DeChristopher’s action direct enough to permit such a defense.

As to the accusation that Benson sentenced DeChristopher for his words rather than his actions, it is true that DeChristopher, like all Americans, has a right to free speech under the First Amendment. However, as officers of the court, one factor which judges and other sentencing authorities must consider in determining an appropriate sentence is a convicted person’s likelihood of reoffending.

Unsurprisingly, one factor that sentencing authorities must seriously consider in determining whether a convicted person is likely to reoffend is what he himself has said about his likelihood of reoffending. If sentencing authorities were to ignore a convicted person’s own statements about the matter, they would breach their duties as officers of the court.

“DeChristopher was charged for his words, not his actions,” the Tribune recently editorialized, “a distinction that would not escape a first-year law student, let alone a judge who, unlike Benson, would not choose to make a mockery of the First Amendment he is sworn to uphold.” But DeChristopher has no First Amendment right to proclaim, with impunity, that he would engage in similar conduct if given a chance, or to encourage others to do so. In that regard, at least, he is like any other offender.

Ken K. Gourdin received a degree in Criminal Justice with a law enforcement emphasis from Weber State University in 1995, and was recently certified as a paralegal by the National Association of Legal Assistants. He lives in Tooele. This commentary does not constitute legal advice; anyone needing such advice should contact a licensed attorney.

Update – 14 September 2012: A three-judge panel of the United States Court of Appeals for the Tenth Circuit upheld DeChristopher’s conviction and sentence today.  The appeals court noted that, while the United States Supreme Court has held that whether a defense of necessity is available when the statute under which a defendant is charged does not provide for one is “an open question,” the Tenth Circuit “continues to assume that such a defense exists.”  United States v. DeChristopher, Slip Opinion at 20.

The Court quotes United States v. Baker, 508 F.3d 1321, 1325 (10th Cir. 2007) which lists the requirements for a necessity defense: “(1) there is no legal alternative to violating the law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship exists between defendant’s action and the avoidance of harm.”  Id., internal citation omitted.  If one of the prongs isn’t proven, the defense necessarily fails.  The Court found that “[t]he harm Defendant intended to prevent was the environmental harm that would stem from the sale and delivery of the leases.” Id. at 20-21.

The court noted that since several environmental groups had filed lawsuits attempting to stop the sale of oil and gas leases at the auction, and since a court issued a temporary restraining order barring the Bureau of Land Management from issuing the leases, DeChristopher did, in fact, have a “legal alternative to violating the law.”  See Id.   Since the court found that the first prong, that DeChristopher must have no legal alternative to violating the law, wasn’t proven, the necessity defense necessarily fails, and it did not proceed to examine the second and third prongs.


About kenngo1969

Just as others must breathe to live, I must write. I have been writing creatively almost ever since I learned to write, period! I have written fiction, book- and article-length nonfiction, award-winning poetry, news, sports, features, and op-eds. I hope, one day, to write some motivational nonfiction, a decent-selling novel, a stage play, and a screen play.
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