(Martin occupied the platform suspended from the tripod, while Bryant locked himself to one of the legs.  Photo:  The Boone Examiner via ClimateGroundZero.org)

Two protestors were arrested Monday morning, in front of Massey Energy Company’s regional headquarters in Boone County, West Virginia.  They blocked a driveway, occupyied a tripod platform, and dropped a banner reading,

“Massey, Profits Before People & Mountains, Fight Back!”

Benjamin Bryant, 23, and EmmaKate Martin, 18, were charged with tresspassing, conspiracy to commit a misdemeanor, obstructing an officer, and littering.  They were taken to Southwestern Regional Jail in Logan County.  Magistrate Porter Snodgrass set full surety bonds at $100,000 each.

This action occurred one day prior to a Massey shareholder meeting in Richmond, Virginia. 

Ferment

Some community members are outraged at the bail amount, which they think is a grossly disproportionate punishment for the crimes committed.  Members of Climate Ground Zero, a non-violent protest campaign against mountaintop removal mining, fear that the local judicial system is expressly targeting such actions. 

Magistrate Snodgrass did not return my two phone calls, and I was informed that he would not want to discuss Bryant’s or Martin’s cases with me.

According to Mike Roselle, of CGZ, the “excuse” given in court for the bail amount was that a fire truck was used to remove Martin from her tripod perch (only about 20 feet high), and that tying up such public resources could jeopardize community safety in the event of a fire. 

It is curious, however, that the responders on the scene summoned Ladder 199 from the Danville Volunteer Fire Department, instead of a non-emergency vehicle.  A cherry picker or bucket-loader tractor which could have easily reached Martin.

I’ve descended from high spots myself using the bucket-loader option, and it’s far safer than crawling horizontally over fire ladder monkey bars. 

Also an option:  wait until the sitters are cold, wet, and hungry, and they will come down on their own.  Then you don’t have to spend any taxpayer money, and (bonus) you still get to arrest them!

CGZ writes in its press release,

There is an emerging pattern of non-violent protesters receiving heavy-handed punishment while those who use violence against them are let off the hook. On July 4, 2009, on Kayford Mountain, Adam Pauley threatened to kill families who had gathered to celebrate Independence Day at the Mountain Keepers Festival. He was not arrested, but was given a $100 fine and six months unsupervised probation when found guilty of verbal assault in a February 2010 trial brought against him by Mountain Keeper Larry Gibson. Rock Creek resident, Ruth Tucker, slapped Judy Bonds, outspoken mountaintop removal abolitionist, at a non-violent protest on June 23, 2009. She was released on personal recognizance and given a $100 fine six months after the fact. Climate Ground Zero activist, Jacqueline Quimby was recently sentenced to sixty days in jail for an act of non-violent civil disobedience at a Kanawha County mine site.

The sum of $100,000 is certainly unprecedented for a peaceful protest against strip mining.

Legality?

The 8th Amendment to the U.S. Constitution prevents the federal government from levying “excessive” bail and fines or “cruel and unusual punishment.”  While state constitutions put similar controls on bail sums, “cruel and unusual punishment” applies directly to states per Robinson v. California 370 U.S. 660 (1962). 

The West Virginia Constitution states, 

Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted. Penalties shall be proportioned to the character and degree of the offence.

This was upheld by the state Supreme Court of Appeals in 1971, in State ex rel. Ghiz v. Johnson, 183 SE 2d 703.  Judge Carrigan wrote,

Article 3, Section 5 of the Constitution of this State, entitled “Excessive Bail Not Required” provides, in part, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” This is the same language used in the VIII Amendment to the Constitution of the United States. It therefore clearly appears that the right to release without excessive bail is guaranteed to all citizens by both the federal and State Constitutions.

WVC §50-2-3 further specifies some limitations on bail amounts.

A magistrate shall have the authority to…set and admit to bail:  Provided, That in cases punishable only by the fine such bail or recognizance shall not exceed the maximum amount of the fine and applicable court costs permitted or authorized by statute to be imposed in the event of conviction.

Luckily, for anyone subject to astronomical bail amounts, there is recourse in WVC § 62-1C-1c, which reads,

The amount of bail or the discretionary denial of bail at any stage of the proceedings may be reviewed by summary petition first to the lower appellate court, if any, and thereafter by summary petition to the supreme court of appeals or any judge thereof.

CGZ’s legal team, as well as many angry citizens with telephones, took advantage of that caveat and secured a bail reduction hearing the morning of Friday, May 21, in which the Magistrate offered to reduced the bail amounts to $50,000 apiece.  No dice. 

CGZ appealed to the Circuit Court, where Judge Willie Thompson heard the case within hours and promptly offered a reduction.  Bryant accepted 5 days in jail and 55 days of community service.  Martin plans to appeal further, and now has a $25,000 bond. 

“We don’t always take deals,” said CGZ’s James “Guin” McGuinnes, who himself had been arrested for such direct actions.

The court moved with unusual swiftness on this case, which McGuinness attributes to heaps of bad publicity reaching as far as France and Austria, and a bombardment of over 870 phone calls to the Magistrate’s office which CGZ organized via Facebook. 

A Circuit judge supposedly chastised Snodgrass over the phone for handling the situation the way he did, since it reflects poorly on West Virginia justice system.

Quandary within the System

The West Virginia Law Institute published a report to the state legislature in January 2009, titled Recommendations for Criminal Sentencing Law Reform for the State of West Virginia, which noted a need for “uniform and objective standards for setting bonds.”  It said,

The vagaries of setting bonds have a major impact on the number of inmates awaiting trial in misdemeanor cases.  No definite standards currently exist.  Thus, similarly situated individuals may be placed on widely divergent bonds.  Assume, for example, defendants A, B, and C are arrested for the same misdemeanor offense.  Defendant A is arraigned by Magistrate Smith, who permits the defendant to post a $200 personal recognizance bond.  Defendant B is arraigned by Magistrate Jones, who requires a $10,000 property or surety bond.  Defendant C is arraigned by Magistrate Brown, who requires the defendant to post a $3,000 cash-only bond.

The effect of this inconsistency is that defendant A will post bond and be immediately released; defendant B may spend some time (possibly a day or longer) trying to get someone to post his bond; and defendant C faces the daunting task of finding someone willing to provide $3,000 in cash to post on his behalf.  Thus, A will spend no time in jail, while C may well be in jail until his hearing date (costing the county to pay for his daily keep).

Case in point, 

Just three months ago, another CGZ lockdown protest inside a Massey office warranted nearly identical charges, but drastically different bail amounts.  Mike Roselle, Joe Hamsher, and Tom Smyth, were arrested for trespass, obstruction, conspiracy.  Yet their bail was only $7500 (for Roselle), $5000 (for Hamsher and Smyth).  At the time, that was a record high amount issued to MTR protestors for such offenses.

The WV Law Institute report goes on,

The amount of the bond, however, remains discretionary with the magistrate, subject to review by the circuit court.  Thus, absent a showing of an abuse of discretion, a defendant may be incarcerated unnecessarily, at significant cost to himself and to taxpayers.

     
(Benjamin Bryant (left) and EmmaKate Martin.  Photos:  Courtesy of Southwestern Regional Jail, WV.)

 

In the cases of Benjamin Bryant and EmmaKate Martin, they are like the Defendant C of the scenario.  If unable to make bond, they’d be stuck in jail until their hearing, at a cost of $48.50 per day to taxpayers. 

It sucks to spend time in jail.  I know.  I’ve been.  It can be an effective way to deter recidivism, for sure, but I only hope the authorities took a moment to compare what they gained from my fleeting desolation to the dollars spent by society to hole my dumb ass up for a week. 

By the way, Montgomery County, that coffee was a disgrace even to a turnkey’s addled sense of humanity.  Thanks for the DirectTV, though!  And the waffle sticks and syrup were most delicious…the termites and I very much enjoyed them.

 

OR…

Imagine this, the authorities could have left the tripod sitters alone, just like the DCPD did with a similar protest outside EPA’s Washington headquarters back in March. 

Forthwith

Climate Ground Zero’s legal advisors may end up appealing the case, and challenging the discretion of Magistrate Snodgrass in issuing a bail of $100,000. 

CGZ always accepts donation to its legal fund to assist its members who have volunteered themselves to the righteous indignation of southern West Virginia law.

 

 

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(Field work for authenticity of the story, of course.  Photo:  Courtesy of Montgomery County Sheriff’s Office, VA.)