The numbers of activists protesting the Dakota Access Pipeline at the Standing Rock Reservation in North Dakota continue to swell. The mainstream media continue to ignore it. National politicians continue to pretend that nothing is happening. And the local police continue to douse protesters in pepper spray, beat them, arrest them, and charge them with felonies for exercising their Constitutional right to freedom of speech.
The Standing Rock protests ought to be big news. We haven't seen protests of this scale and intensity in the United States in years. And the issue is a compelling one: The Dakota Access Pipeline directly threatens the only water supply for the entire Standing Rock Reservation, an area of more than 3,500 square miles that is home to nearly 10,000 members of the Sioux Nation straddling North and South Dakota. It is designed to carry highly combustible oil from the Bakken field to refineries south. The pipeline also crosses sacred Sioux ground.
Last spring, a tribal elder and her grandchildren established a camp on their private land to protest the pipeline. At first, several hundred Native protesters showed up. The number quickly swelled to what are now several thousand, with as many as five or six thousand on weekends.
The protests were peaceful until September, when the company building the pipeline hired a private security firm because a spokesman said protests "have not been peaceful." In conjunction with the local police, the rent-a-cops began harassing and even brutalizing protesters, hitting them with batons and spraying them with pepper spray. At least six protesters were treated for serious dog bites after being set upon by police dogs. It was the police and their partners in the district and state's attorneys offices who upped the ante. And therein lies the Constitutional issue hanging over this protest.
Disrespecting the first amendment to the Constitution is one thing. Charging peaceful protesters with serious crimes for exercising their right to free speech is another. These aren't misdemeanor counts of trespassing or disorderly conduct that we're talking about. These are felony counts of resisting arrest and conspiracy.
And in the case of Democracy Now journalist and multiple-Emmy Award winner Amy Goodman, it's a felony charge of "riot." The riot charge came after Goodman initially had been charged with "criminal trespassing," despite the fact that she is a working journalist covering a legitimate news story. Indeed, prosecutors even had the gall to say that Goodman was not entitled to any protections as a journalist because "Everything she reported on was from the position of justifying the protest actions." After prosecutors admitted that there were "legal issues with proving the notice of trespassing requirements in the statute," meaning that they couldn't prove their case, they dropped the criminal trespassing charge and filed a riot charge. Meanwhile, dozens of other felony cases against peaceful protesters continue.
This is the trend. Prosecutors at every level of government are increasingly engaging in something called charge stacking, and we're seeing its use very clearly at Standing Rock. Let's say, as an example, that a protester is actually guilty of misdemeanor trespassing. Rather than charging that protester with a single misdemeanor charge, prosecutors will charge him with multiple charges, including felonies. The protester is forced to defend himself, to hire an attorney at enormous expense, and to prepare for trial. But once the protester has run up thousands or tens of thousands of dollars in legal fees, the prosecutors will come back and offer to drop all the charges but one, a felony, in exchange for a guilty plea.
So does the protester risk significant prison time and go to trial? After all, most juries would convict a baloney sandwich. I can't tell you how many times I've heard people say, "Well, the cops wouldn't have arrested them if they weren't guilty." Usually, a person wouldn't take a risk. The protester takes a plea to a felony, may or may not see a little jail time, pays a fine, and goes home.
But that felony record will last a lifetime. The protester has just lost the right to vote. He will probably be on probation for at least a year. He's lost the right to own a firearm for life. And in some cases, a felony conviction includes the loss of a federal or state pension. It also makes it far more difficult to get a job. It's life-altering.
And it's all for exercising our Constitutional rights.
The protests at Standing Rock are not going to end anytime soon. Indeed, we should all be there. The protests are not just about water, the environment, or Native rights. The protests are also about all of us and about government overreach. They're about the Constitution. We have to keep up the fight.
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