Steven Donziger Could Be Anybody

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Last week, Steven Donziger reported for his 6 month prison sentence. This was announced in the New York Times, which was the first time the paper had reported on the case, despite its newsworthy nature.

After decades of litigation, in 2011 Donziger won a $9.5 billion judgment for his plaintiffs who had been poisoned by Chevron. Representing Ecuadorian farmers and indigenous people who had been poisoned by the toxins the company dumped into their water – FOR DECADES – Donziger was able to secure modest monetary relief from a company whose annual profits are in excess of $146 billion (for 2020 alone), for destroying lives and an entire ecosystem. After going up against one of the most powerful corporations in the world – which forced him to litigate the case in Ecuador thinking it would be more difficult for him and the indigenous people he represented – he won anyway. Then, Chevron took out all of its holdings from Ecuador, making the plaintiffs try to collect the judgment in other courts. They have so far been unsuccessful.

Meanwhile, Chevron launched a countersuit in the US to make it even less likely the plaintiffs will ever recover, and to further make sure that no uppity lawyer ever has the gall to go against it, ever again. In 2014, Chevron accused Donziger of bribery and witness-tampering, saying Donziger tampered with testimony and scientific studies presented at trial. The judge in his case, Lewis Kaplan, ruled in Chevron’s favor, finding that the 2011 verdict against Chevron had only been achieved by fraud, and vacated it. Nevermind that the sole witness who accused Donziger of bribery decanted before Kaplan handed down his judgement, as the Intercept and other outlets have reported, nor that Kaplan, a former corporate lawyer was outright conflicted holding financial investments in Chevron at the time of the decision.

While appealing Kaplan’s nakedly partial decision, Donziger incurred criminal contempt charges. Don’t ask me how – I’ve found nothing specific to describe his crimes (though I have not looked that hard). When federal prosecutors in the Southern District of New York, perhaps similarly feeling there wasn’t much there, declined to prosecute the contempt charges, Kaplan appointed private attorneys to do the prosecution instead – an all but unheard of action. One of the private attorneys that Kaplan appointed had previously worked for a firm that Chevron retained. But that was still not enough, Kaplan ruled Donziger to be a flight risk, and put him under house arrest – which he stayed under for over two years, until he reported to prison last week. Note that the two years Donziger has already spent under house arrest is over the maximum amount of time that he could have been given for any one of his charges.

Donziger, and those covering his case (though there was a kaibosh on coverage in the mainstream press), have tended to focus – and rightly so – on the outrageous treatment and injustice he has suffered, as a former lawyer who challenged the powerful. There has been an outcry from organizations including the United Nations human rights body, nobel laureates, attorneys, all condemning the patently biased decision and inhumane treatment that is clear retribution for his winning an important international victory against a true corporate villain. Donziger’s case is undoubtedly an egregious human rights violation, meant to intimidate anyone who would dare challenge Chevron’s right to poison, maim, kill, with impunity.

Conspicuously absent from these discussions over the past several months and the heightened attention to Donziger’s plight, is a critique of the wider US criminal system and recognition that the outcome for Donziger is not an exception, but the rule. Lost in the indignation at Donziger’s unjust imprisonment, is the understanding that the everyday subjects of the US criminal system are no less worthy of fair trials and humane treatment, yet receive nothing to close to that. Donziger was under house arrest for over two years and will now go to jail for six months – this is still less time than Kalief Browder, 16, was forced to spend in Rikers – for absolutely no reason – and once released, he killed himself. While Donziger’s arrest and imprisonment is an attrocity, it is a commonplace occurrence as far as the US criminal system goes, in a country that makes up 5% of the world population, but holds 25% of its prisoners, and has incarcerated black people a rate six times that of South Africa during apartheid.

Prosecutors weaponize all sorts of legal mechanisms that end up leading to sentences that shouldn’t be, or are far longer than is reasonable. That Donziger is a flight risk seems to many a ridiculous pretense to hold him in house arrest; however, this is no more egregious than cash bail and that has the same functional impact on millions of people in the system, who are also not flight risks, just poor.

Donziger has reminded us, often, that he is a lawyer under house arrest. And now in jail. In interviews he has discussed his opinion of the legal system – he has explained that on the whole, the criminal system works; however, his particular case is an exigent instance that did not go the ‘right’ way. His sympathizers have generally taken up Donziger’s framing – tending to focus on the outlandish injustice of his particular case rather than using it as an entry point to appreciate it represents injustice dolled out on a much wider scale.

Many have pointed to the fact that Donziger’s judge – in his particular case – was not an impartial arbiter, but bankrolled by Chevron, and therefore, biased against him. However, a similar conflict of interest exists between many judges and the police, not to mention with local city or county officials and institutions – public and private – that have vested interests in unnecessary and unwarranted incarceration rates. Furthermore, there is a sense that the system usually works – the result here is a transgression since the judge went outside of the system, handing the case to private prosecutors, to do Chevron’s bidding. Again, this is no exception – in most cases, there is no need for the judge to go out of his way to ensure an inhumane punishment – the system is already set up for exactly that, and it masquerades under the guise of justice.

While there can be no doubt that Donziger’s guilty verdict belies an egregious failure; it is par for the course of the kind of ‘justice’ our system produces. The system is built on the protection of private property and the inhumane disposal of the victims of austerity. That this never should have happened to Donziger is clear – he is not the kind of victim we are used to seeing. He is white, wealthy, and a human rights lawyer – the outrage at his treatment as exceptional belies a fear that the system may one day be coming for those who can see themselves in Donziger, alongside a complicit acknowledgment that those who do suffer under the current barbaric system are somehow less deserving of the same outrage. Or perhaps it is just we are being adults; realistic. We can only be outraged for so many, and since it cannot be everyone, Donziger’s case is just more important.

Many will say that those discussing Donziger were not leaving anyone out – merely focusing on his specific case. Implied in the story that has been built up around Donziger’s case is the fact that this case is exceptional because Donziger is exceptional. The people that are the usual targets of the criminal system are not exceptional, and therefore, their imprisonment does not represent the same breach of basic human morality. David Graeber explains this dynamic in his definition of hierarchy, which at its core must be based on precedent – the belief in what has existed before, should continue:

“As a former student of mine, Sarah Stillman, pointed out: in the US, if a middle-class thirteen-year-old girl is kidnapped, raped, and killed, it is considered an agonizing national crisis that everyone with a television is expected to follow for several weeks. If a thirteen-year-old girl is turned out as a child prostitute, raped systematically for years, and ultimately killed, all this is considered unremarkable—really just the sort of thing one can expect to end up happening to someone like that.”

A similar dynamic played out in the coverage and narrative surrounding Britney Spears and her conservatorship. Many saw the clear injustice of her conservatorship as it related to Britney specifically. With a few important exceptions who gave voice to a wider critique, the discussion largely focused on Spears, and failed to contextualize the wider system of which her case was a part. Spears, like Donziger, has resources, and is not the sort of person that we are used to seeing this injustice happen to, so our sympathy for them becomes greater. It shouldn’t be – the criminal system in all of its machinations, is an injustice visited on those it incarcerates, surveils, and immiserates. It is a direct vestige of slavery, and is nothing more than a tool of the wealthy to control those who do not have property and are merely victims of failed social policies – and it must be abolished.

Donziger shouldn’t be in jail. The judges and lawyers involved are ghouls – most judges and lawyers are ghouls. Donziger has become one of over 2 million people in the US enmeshed in a system that is cruel, and victimizes all lives it touches – though he does not see it that way. Of those now in US prisons – 90% are poor, and essentially this is their crime. Instead of spending money on private prosecutors – or public ones who by and large serve capital’s interests – we need to start spending that money to support their lives of the people that are the victims of the carceral system, so that they can flourish.

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