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Here Are the Criminal Justice Issues Andrew Cuomo and Cynthia Nixon Should Debate

From policing to parole, this election could be pivotal for reform.

New York Governor Andrew Cuomo and challenger Cynthia Nixon.
Drew Angerer/Getty Images

Here Are the Criminal Justice Issues Andrew Cuomo and Cynthia Nixon Should Debate

From policing to parole, this election could be pivotal for reform.


For advocate Bill Bastuk, Governor Andrew Cuomo’s sign-off on a prosecutorial conduct commission last week marked the culmination of nearly a decade of lobbying. Though funding and appointments have yet to be determined, the commission is designed to consider allegations of misconduct against any of the more than 60 district attorneys across the state. “The DAs did everything possible to squeeze him to veto this bill,” said Bastuk, who founded the nonprofit It Could Happen to You after his 2009 acquittal on charges of raping a 16-year-old girl. “I think what did send a message to the governor was this broad bipartisan support.”

For many criminal justice reform activists, the commission is a rare bright spot. New York recently became the 49th state in the country to raise the age of criminal responsibility to 17. It’s one of only 10 states where prosecutors don’t have to hand over most evidence to the defense until trial, and more than eight percent of the state’s prison population is in solitary confinement—close to double the national average.

So often with Cuomo, says Peter Goldberg, executive director of the Brooklyn Community Bail Fund, “We see measures that do something but don’t go nearly far enough.”

Now, in the lead-up to New York’s gubernatorial primary on Sept. 13, activists tell The Appeal that they have appreciated challenger Cynthia Nixon’s willingness to take their cues. “The sense that I’ve gotten is that she wants to sit down with the people most affected by this issue … and say, ‘Look, how can we fix this?’” says Nick Encalada-Malinowski, civil rights campaign director for VOCAL-NY. “Cuomo has certainly never sat down with people I know.”

Still, the criminal justice system in New York is so “devoid of any semblance of justice,” that truly effective reform will require looking beyond issues currently garnering headlines, said Steve Zeidman, a professor at City University of New York School of Law. For example, beyond the closure of Rikers Island and pre-trial reforms, he says he’s hopeful tomorrow’s gubernatorial debate will also touch on decarceral strategies like clemency and parole, which Nixon has brought to the fore, as well as human rights abuses at maximum security prisons across the state.

“The question is how high can we aim?” Zeidman said. “A governor can set a tone. They can use the bully pulpit, and say, ‘I’m going to keep talking about this issue until there’s a bill on my desk.’”

Policing

“Cynthia’s platform [is] cognizant that New York hasn’t taken even a measured step towards addressing the school-to-prison pipeline,” says Kesi Foster of Make the Road Action, explaining the nonprofit’s decision to endorse Nixon. He praises her for condemning metal detectors and police officers in schools; by contrast, last September, Cuomo announced the deployment of state troopers to 10 Long Island high schools he deemed a “breeding ground” for gangs including MS-13.

Overall, Foster added, Nixon “seems to acknowledge that there are longstanding structurally racist issues in policing.” She believes that recreational marijuana should be legal, while Cuomo has inched towards legalization without a full throated endorsement.  . She also supports the repeal of Section 50-a of the New York State Civil Rights Law, which police departments use to justify withholding officers’ disciplinary records, as well as existing legislation that would make certain low-level offenses ticketable, rather than arrestable. Her platform highlights the Police-STAT Act, legislation that would require the state to track arrests by race, age, and gender; she supports codifying Cuomo’s 2015 executive order naming the attorney general as a special prosecutor in police killings, and would expand it to include cases where the civilian was believed to have had a weapon, or did not die despite the alleged use of deadly force.

Yet Hawk Newsome, president of Black Lives Matter of Greater New York, told The Appeal that the Black Lives Caucus has not endorsed a gubernatorial candidate and does not plan to. Stressing that he speaks for himself and not his organization, he bemoaned feeling “stuck between a rock and a hard place.” While the special prosecutor executive order could be strengthened, he said, Cuomo still “did something that was really helpful.” Meanwhile, Nixon hasn’t met with his organization, and he hasn’t seen her campaigning in the Bronx (Nixon’s team cited three visits to the borough, including a canvass kickoff in early June). “Cynthia is supposed to be anti-establishment candidate, but … we’ve been in the streets and I don’t see her people,” he said.

Pretrial  

“We started off the legislative and budgetary state year with a lot of hope—hope for bail reform, hope for discovery reform, hope for speedy trial reform—and didn’t get anything,” Tina Luongo, attorney-in-charge of the Legal Aid Society’s criminal defense practice, stated earlier this month.

In January, Cuomo proposed ending cash bail for people charged with misdemeanors and nonviolent felonies. For the first time in his seven-year tenure, he also called for discovery reform, demanding that defendants have access to evidence including witness names and statements and grand jury testimony ahead of trial (New York is one of a minority of states whose discovery laws give prosecutors a significant advantage, considering 98 percent of felony arrests that end in conviction never make it to trial.) Yet while public defenders say they appreciate Cuomo elevating the issue, they were frustrated to see loopholes emerge, apparently at the behest of the powerful District Attorneys Association of New York. Cuomo ultimately passed over existing legislation that had the support of Legal Aid and the New York State Bar Association, insisting on a “right of redaction” of witness information for prosecutors. Discovery reform fizzled, as did speedy trial proposals.

Akeem Browder, brother of Kalief Browder, who took his own life after three years of incarceration at Rikers Island for a crime he did not commit, said he is endorsing Nixon because he thinks Cuomo is opportunistic. Cuomo brought Browder on stage during his State of the State address in January, and “made a promise to me in my brother’s name” to pass pretrial reforms, he recalled. After these reforms failed to materialize, Browder says, Cuomo’s counsel, Alphonso David, asked him to participate in an endorsement video for the governor. “If that’s not just insight into how he really feels about or communities,” Browder told The Appeal. (A Cuomo spokesperson blamed the Republican-majority state Senate for the failure of the reforms.) Now, he points to Nixon’s proposal to abolish cash bail regardless of the arresting charge, and her support of Kalief’s Law, a 2015 bill that would prevent prosecutors from dragging out pretrial detention with frivolous declarations of unreadiness for trial. “It’s time for a change,” he says.

Prisons

“I’ve heard Cuomo say time and and time again two things,” says Dave George, associate director of the grassroots group Release Aging People in Prison. “One, that we’ve raised the age of criminal responsibility to 18. And the second thing he says a lot is that he’s closed more prisons than any other governor.”

The former is an “embarrassment,” George argues, considering New York was among the last states to do so. The latter, while admirable—Cuomo’s office says he has closed 24 facilities in his tenure—excludes maximum and super-maximum prisons. A spokesperson for Cuomo’s re-election campaign confirmed to The Appeal that closing Rikers Island is a priority should Cuomo win a third term, along with pretrial and re-entry reforms. Similarly, Nixon’s platform states that she is “prepared to ensure that her administration … uses every available power to force the closure of all facilities on Rikers Island.”

“It’s critical for whoever occupies the Governor’s office to close upstate prisons, as well,” said Jared Chausow, a policy specialist at Brooklyn Defender Services, in a statement to The Appeal.

Cuomo announced a settlement with the New York Civil Liberties Union in 2015 intended to significantly reduce solitary confinement for teenagers, though a report from the Marshall Project in March found it’s still common practice outside New York City. Whereas Nixon has pledged to abolish solitary confinement by executive order for people of all ages, and codify it by supporting the HALT Solitary Confinement Act. Chausow notes that doing so shouldallow for the closure of New York’s two supermax prisons, Upstate and Southport.

Beyond abolishing solitary, there are needs for expanded medical care, mental health services, and recourse for survivors of assault by officers, activists said. They expect a lot of the governor, considering the Commissioner of the Department of Corrections and Community Service reports directly to that office. “It’s positive that [Nixon] has been raising a number of issues that are important to peoples who are incarcerated,” said one activist who requested anonymity in discussing electoral politics because they work for a nonprofit. “But there are other important issues that need to be addressed” in prisons “ripe with abuse, brutality, and racism.”

Clemency

At an event at the Fortune Society this month, Nixon called out Cuomo for his approach to clemency—including pardons, which expunge a person’s criminal record post-release, and commutations, which shorten or end sentences. “He is very spare with them, as opposed to say, someone like [Governor] Jerry Brown in California,” she said. Despite 2015 reforms expanding access to free legal counsel for clemency applicants, Cuomo has granted just 12 commutations since taking office. (His father, Mario Cuomo, issued 37 in three terms, The Appeal recently reported; Governor Brown once issued 19 in one day.) He has been more liberal with pardons, including more than 18 for New Yorkers at risk of deportation, and, conditionally, more than 100 for New Yorkers convicted of nonviolent crimes in their teens.

We have 10,000 people serving life sentences, and that’s where the governor has to zero in on,” says Zeidman, who has filed more than 30 commutation applications with his CUNY Law students.

Nixon’s platform prioritizes commutation for all survivors of gender-based violence who are convicted after acting in self-defense. According to her staff, she was inspired by the work of Survived & Punished, a grassroots prison abolition group. Zeidman would like to see Nixon expand her commutation priorities beyond survivors of gender-based violence: a goal that is “both long overdue but also problematic” because other prisoners serving life sentences are implicitly excluded.

Parole

George, the associate director of RAPP, says Nixon’s interest in parole reform has been refreshing. “For a long time we’ve felt alone,” he says. “This issue is [historically] only brought up in really high-profile cases where the police unions and conservatives are against it.”

Nixon’s platform echoes recent RAPP recommendations to appoint more Parole Board commissioners with backgrounds in rehabilitation, like social workers and nurses. Cuomo appointed six new commissioners in this vein last June, and RAPP says release rates have since increased to 37 percent from 24 percent. Yet the board is still understaffed, with 12 commissioners out of a possible 19 overseeing 12,000 cases annually. Nixon has also singled out Commissioner W. William Smith, the board’s longest-serving commissioner, who Cuomo reappointed last year despite opposition from 19 senators. (Smith has a reputation for denying parole for those with violent crime convictions regardless of age, health status, and other factors.)

Cuomo’s election year gestures on parole reform have been fairly typical, as George sees it: “Big press releases, nice talking points, but not so much substantive policy.” This winter he proposed “geriatric parole” for gravely ill prisoners over the age of 55 who have served at least half of their sentences, with exclusions for certain criminal convictions. The legislation did not survive budget season. In April, Cuomo garnered positive headlines for an executive order restoring voting rights for parolees. But closer inspection shows it’s up to the DOCCS Commissioner to submit a list of parolees monthly to the governor’s office. Voting rights are then granted on a case-by-case basis.

By contrast, Nixon has endorsed existing legislation that would empower the board to assess every prisoner over the age of 55 who has served 15 years. “It’s great, but it’s tepid,” says Zeidman, who would like to see parole hearings for all prisoners who have served a chunk of their sentence, regardless of age. “Go further.”

Correction: This story has been updated to note that the governor’s office, not DOCCS, decides which parolees will be granted the right to vote.

Why Rooting Out Rogue Prosecutors Isn’t Enough

Experts say New York’s Commission on Prosecutorial Conduct is an important first step, but the problem isn’t just misconduct—it’s the way prosecutors wield their discretion every day.

Jeffrey Deskovic with his mother Linda McGarr shortly after his release from prison.
Courtesy of the Innocence Project

Why Rooting Out Rogue Prosecutors Isn’t Enough

Experts say New York’s Commission on Prosecutorial Conduct is an important first step, but the problem isn’t just misconduct—it’s the way prosecutors wield their discretion every day.


Jeffrey Deskovic spent 16 years—from the age of 17 to 32—locked up in New York prisons for a 1989 rape and murder he did not commit. Despite potentially exculpatory DNA and hair evidence, the prosecution forged ahead with their case, according to a civil lawsuit later filed on Deskovic’s behalf.

Of the 250 exonerations in New York since 1989, at least a third involved allegations of official misconduct by police, prosecutors, or other officials. In the case of prosecutors, that misconduct could include using witnessesses known to be unreliable or hiding evidence from the defense. Yet disciplinary action against prosecutors is virtually nonexistent. An Innocence Project survey published in 2016 identified 148 cases of prosecutorial misconduct in New York over a five-year period; no prosecutors involved faced sanctions.

That’s the problem that Deskovic, who was released in 2006, and other exonerees and advocates were determined to solve when they lobbied state legislators to create a watchdog entity to investigate misconduct in criminal cases. On Aug. 20, their work paid off when Governor Andrew Cuomo signed the country’s first commission on prosecutorial conduct into law.

“I feel ecstatic that the bill has become law; it has been a really long and hard fight,” said  Deskovic, who now runs a foundation to help wrongfully convicted prisoners. Had there been oversight on the prosecutor in his case, “I believe I would have been found not guilty,” he said. “I would have finished high school, gone to the prom. I wouldn’t have suffered the psychological impact of incarceration or the difficulties acclimating back to society.”

Cuomo’s decision to establish this commission defied the powerful District Attorneys Association of the State of New York, which aggressively lobbied against the bill and continues to threaten to sue over its constitutionality. Enacting this legislation sends a stern message to line prosecutors and elected district attorneys that they must play fair. (Notably absent from the choir of support for the commission were two New York City district attorneys often touted as reformers: Brooklyn’s Eric Gonzalez and Manhattan’s Cy Vance. Neither responded to requests for comment.)

The State Commission on Prosecutorial Conduct’s 11 members will be appointed by the governor, state legislative leaders, and the chief judge of the Court of Appeals. They have the power to initiate investigations, and to subpoena evidence and documents from prosecutors and witnesses. If they find wrongdoing, the panel will recommend sanctions against the prosecutors ranging from a warning to termination, which the governor can impose or dismiss. When allegations are confirmed, information from the investigation will be made public, a measure important to outside advocates and journalists (an amendment to exclude sensitive information such as the names of whistleblowers is expected to be enacted).

“I think it’s groundbreaking legislation,” said Rebecca Brown, director of policy at the Innocence Project. “I hope this begins to move other states to follow.”

But while few doubt the benefits of having a commission on prosecutorial misconduct, some criminal justice experts say it’s too soon to celebrate. Commission members will be given the power to investigate alleged bad actors, for instance, yet the efficacy of that power will most likely depend on who holds it. “Who those appointees are really matters,” said Nick Encalada-Malinowski, civil rights campaign director for the nonprofit VOCAL New York.

The bill mandates that the commission include prosecutors, defense attorneys, and judges. But to be fully representative, Encalada-Malinowski said, it should also include someone who was wrongly convicted. “You want the people who are actually making the complaint to be treated in a fair way,” he said.

And while New York’s model is a step toward reining in foul play, misconduct is only defined by current standards, which most advocates agree aren’t strong enough. “Prosecutors make thousands of decisions every day that have enormous impact on the lives of our clients and the cases that they have open,” said Scott Hechinger, director of policy at Brooklyn Defender Services. “A lot of these decisions would not be considered within the jurisdiction of this commission but I consider [them] misconduct, especially given the power of prosecutors.”

Under New York law, for instance, prosecutors are allowed to wait until the 11th hour to disclose evidence against the defendant; request exorbitant bail, which makes low-income defendants more likely to accept a plea deal; and wield enormous discretion in choosing which cases to prosecute and what charges to set. These are all powers that greatly affect the course of a case.

What’s missing from the current debate, explained John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, is a broader look at how regular practices should be reformed. “[The commission] focuses on misconduct,” Pfaff said. “There has been no reform yet that directly addresses prosecutorial conduct.”

“Misconduct is obviously awful and needs to be stopped,” Pfaff said. “But my general sense about what drives mass incarceration is less misconduct and more about prosecutors making decisions that are publically legal, but unnecessary.” Pfaff gave the example of a person who is arrested for a fistfight. “This person is guilty, he punched someone in the face. By charging him, there is not misconduct, but does this person need to go to prison?”  One prosecutor may think yes, another no, resulting in disparate charges and punishment. Beyond the commission, which he supports, Pfaff thinks there should be more consistent charging practices that would be transparent and open to public scrutiny.

New York’s commitment to curbing bad-acting prosecutors is “a huge, important step forward,” Pfaff said. “But my hope is there will be more regulation of the day-to-day ways prosecutors work.”


This story was produced in partnership with Slate.

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Louisiana Law Enforcement Officers Are Moonlighting For A Controversial Pipeline Company

Off-duty law enforcement officers are using state resources to work side jobs for the pipeline company.

Probation and parole officers arrested pipeline protesters while working secondary jobs providing security to the pipeline company.
Karen Savage

Louisiana Law Enforcement Officers Are Moonlighting For A Controversial Pipeline Company

Off-duty law enforcement officers are using state resources to work side jobs for the pipeline company.


Karen Savage is an investigative journalist currently embedded with the L’eau Est La Vie resistance camp in Louisiana. She was arrested in the course of reporting this article.


Pipeline protester Cindy Spoon was trying to stop Energy Transfer Partners’ heavy tree-cutting equipment from coming onto a pristine cypress forest-covered island in Louisiana’s Atchafalaya Basin. As she paddled in the bayou on Aug. 9, fan boats roared around her, blowing her canoe backward and kettling her in a smaller bayou.

Within minutes, Spoon and fellow activist Sophia Cook-Phillips were handcuffed and yanked out of the canoe by armed officers who refused to fully identify themselves.

“What law enforcement agency are you with and where are you taking me?” Spoon asked repeatedly, her voice cracking and growing increasingly frantic as she was pulled up a steep embankment and dragged onto Energy Transfer Partners’ Bayou Bridge pipeline easement.

Spoon and Cook-Phillips later learned they were being detained and dragged onto the construction site by probation and parole officers for the state of Louisiana who were working side jobs for an Energy Transfer Partners contractor.

Spoon, who prefers to be called a water protector, said she knew she was allowed to be on navigable waters, which are generally open to fishermen and members of the public who recreate in the basin.  She also knew that setting foot on land where the pipeline was being constructed could result in a felony.

“Despite being informed by law enforcement that the waterways are public and free to use, Louisiana probation and parole officers—acting as ETP’s private security—were allowed to…rip us out from our canoe while in the middle of the public waterway and turn us over to the police to be arrested without question,” said Spoon, adding that local police didn’t even pretend to act like they are in charge.

Sometimes it’s hard to tell who’s who.

A probation and parole officer wore a hat emblazoned with the word “police” in the Atchafalaya Basin on August 8, 2018.
Karen Savage

A recent increase in resistance to the pipeline project by Spoon and others has revealed a cozy relationship between Energy Transfer Partners and state and local law enforcement officers who work side jobs for security firms contracted by the pipeline company. At the same time, stakes for those opposing the project have never been higher. A new Louisiana law significantly increases the legal consequences for protesters, allowing for felony charges to be filed against those who engage in certain types of nonviolent direct action. Activists and some legal experts are questioning whether officers who are on the payroll of private security firms contracted by Energy Transfer Partners are able to adequately protect the constitutional rights of individuals who oppose the project.

Sometimes officers use state-owned vehicles and other equipment while working these private security jobs.

Anne White Hat, co-founder of the resistance group L’eau Est La Vie, said interactions between probation and parole officers and St. Martin Parish sheriff’s deputies demonstrate the murky relationship between both local and state officials and Energy Transfer Partners, a private corporation. Probation and parole officers appear to be directing the deputies, she added.

Changing the rules

On at least three occasions—one in April experienced by this reporter and two reported by pipeline opponents—probation and parole officers have used state-owned vehicles to make motor vehicle stops while working for the pipeline company.

In all three instances, drivers say they pulled over because the officers wore either shirts or hats that said “police” and appeared to be with a local law enforcement agency.

According to state guidelines provided to The Appeal by the department in late July, probation and parole officers need permission from their district administrator to work second jobs.

The guidelines provided in July also stipulated that state-owned equipment cannot be used while working second jobs unless that work is “under the auspices/authority of an outside law enforcement agency,” which is defined as an “agency with the authority to make arrests and includes city police, sheriff’s office, campus police, state police or federal law enforcement agencies.”

But probation and parole officers are allowed to use department-issued equipment and state-owned vehicles while working secondary assignments, Ken Pastorick, communications director for the Department of Public Safety and Corrections, said in an email on Aug. 15.

When asked in a phone interview a few days later about the discrepancy between the state guidelines The Appeal was given in July and actual practices, Pastorick said the guidelines had been revised and said he would send the current version, which he did a few hours later.

During the interview, Pastorick said the Department of Corrections has been working on the new policy for about a year and a half.

“The old guidelines spelled out that they could not use it [equipment] without the permission of the director, so now you still have to get the permission of the director, but it spells out in there that while on these details, you can use your service weapon, you can use your unit, you can use your uniform—the old policy wasn’t like that,” he said.

Pastorick said officers must obtain permission from the department to work secondary jobs, and once they receive permission, officers are allowed to use their service weapon, their uniform and their vehicle.

“Now, with that said, while they’re working, they’re not in the capacity of a probation and parole officer, but they are in the capacity of a state peace officer—a certified, credentialed state peace officer,” said Pastorick.

“So, they have the same arrest powers and police powers as somebody who might be working for the Louisiana State Police or probation and parole during their regular detail or a city police officer or sheriff’s deputy. But while they’re working those extra duty details, they’re not working for the department, they’re working independently, using their commission to work for companies like Hub or Athos to provide security for that pipeline,” he said, adding that officers are low-paid and often supplement their income with second jobs.

“You know when you look at my officer and with that Louisiana state map on his or her left chest and you see that badge, you know that’s an official law enforcement agent,” said Pastorick, who reiterated that while working outside jobs, the officers are using their commission to work independently.

Guidelines later received by The Appeal from Pastorick were dated Aug. 17—the day of the phone interview. A note in the revised guidelines says “08/17/2018; Supersedes policy PER 218 dated 03/06/2015.” Metadata shows the document was created about an hour after the phone interview.

The revised guidelines now allow for the use of state-issued equipment and state-owned vehicles in the performance of agency-approved jobs.

Pastorick did not respond to multiple requests for further comment.

Probation and parole officers detained water protectors while working secondary jobs for the pipeline company in the Atchafalaya Basin on August 9, 2018.
Karen Savage

Spoon and Cook-Phillips, along with Eric Moll, who was also arrested that day, are the first in Louisiana to be charged under a new state law that increases the stakes for protesters by redefining pipelines as critical infrastructure and imposing felony charges on those convicted of entering pipeline construction sites without authorization.

The new law went into effect Aug. 1. Spoon, Cook-Phillips, and Moll, who were arrested on Aug. 9, were each freed on a $10,000 bond. If convicted, each could face a sentence of imprisonment with or without hard labor for up to five years and fines up to $1,000.

Bill Quigley, a New Orleans law professor who is representing the three pro bono, said similar nonviolent protests previously would have been considered misdemeanors.

“In fact, dozens of protesters have been arrested for the same or similar conduct for the past few months—every single one was charged with a misdemeanor. Many did not even have to put up bond,” said Quigley, referring to activists who engaged in nonviolent protests against the Bayou Bridge pipeline before August.

“Now, all of a sudden, the exact same actions are serious felonies with $10,000 bonds?  This is precisely the hypercriminalization of protest that critics of the new law predicted,” he said, adding that in both instances activists report they were on either public property or on private property with the permission of the owners.

“Yet the powerful pipeline corporations have orchestrated the state legislature to enact new laws [and] hired state law enforcement to enforce the new laws,” said Quigley.

Bills criminalizing many forms of pipeline protests have been proposed in several states, including Wyoming, Iowa, Minnesota, Pennsylvania, and Ohio. Most are modeled under the conservative American Legislative Exchange Council’s Critical Infrastructure Protection Act, which defines pipelines as “critical infrastructure” and imposes harsh sentences and heavy fines to those convicted of entering a facility without the express permission of the landowner.   

Quigley said it’s unclear how the new law would apply on public trust land. While the definition of which waterways are navigable and what rights landowners have has been subject to debate, he said in this case the activists were on public trust waters and should not have been arrested. If the district attorney presses charges, he said, they will challenge the new law in court as part of their defense.

Pipeline police

Photos from the day of Spoon’s arrest show that armed security officers for the Bayou Bridge project wore badges and uniforms identifying them as probation and parole officers. Some also wore dark blue hats and shirts with “POLICE” in large white letters.

When Spoon and this reporter asked which law enforcement agency they work for, a few said they work “for the state.” One officer said to call the Department of Corrections in Baton Rouge for more information on the arrests. Most refused to answer.

Deputies with the St. Martin Parish Sheriff’s Office, the local law enforcement agency, arrived about 30 minutes after the incident took place. They arrested and charged the protesters under the new felony law based on information given to them by probation and parole officers, who had removed Spoon, Cook-Phillips, and Moll from the waterway and onto the land portion of the easement at the direction of pipeline supervisors.  

A more recent incident took place on cypress tree-covered land in the Atchafalaya Basin that is jointly owned by hundreds of individuals. In a petition filed against several hundred property co-owners in July, Energy Transfer Partners said it has easement agreements with nearly additional 350 co-owners, but is seeking a judgement of expropriation against the remaining co-owners.

To prevent further construction, several landowners who oppose the project have given activists permission to occupy the land. Generally, guests on private property need only the permission of one owner in order to be legally present.

Despite having permission to be on the land, five pipeline opponents and this reporter were arrested last weekend by St. Martin Parish sheriff’s deputies. All but one were charged with felonies under the new law.

The company must have easement agreements with or expropriation judgments against all landowners in order to legally proceed with construction, Robert Verchick, professor of environmental law at Loyola University New Orleans, told Inside Climate News. The company has cut cypress trees, dug a trench and is in the process of moving pipeline through the property.

Deputies are allowing the company to continue to work.

“The fact that this company is allowed to do whatever it wants while the rights of our water protectors are being trampled, while landowners’ rights are being trampled, really makes me question who the St. Martin Parish deputies are working for,” said Cherri Foytlin, co-founder of the L’eau Est La Vie resistance camp.

“In North Dakota, they paid TigerSwan mercenaries to terrorize water protectors,” said Foytlin. She expressed similar worries about what could happen in Louisiana given the relationship between ETP and local law enforcement, adding that one activist was tased and another threatened with a semi-automatic weapon.

St. Martin Parish sheriff’s deputies told those arrested that they have signed affidavits from some of the landowners and told activists they are not allowed on the property. When asked, deputies would not say which landowners had signed the affidavits, nor could they provide copies of the documents.

The St. Martin Parish Sheriff’s Office did not respond to multiple requests for comment.  

The resistance grows

Construction of the Bayou Bridge pipeline was controversial before it began. It is part of a larger project intended to connect Energy Transfer Partners’ Dakota Access pipeline in North Dakota to refineries in St. James Parish and nearby export terminals.

Normally sparsely attended, public permitting hearings overflowed and contentious debates broke out between industry speakers and pipeline opponents.

Founded by four Native women, L’eau Est La Vie launched last year and activists began nonviolent direct actions against the project nearly as soon as construction began in January.

It is believed to be the first-ever large-scale resistance to the fossil fuel industry in the previously oil-friendly state.

In recent months, activists have ramped up the resistance, engaging in tree sits and other nonviolent direct actions in the Atchafalaya Basin, all aimed at protecting the swamp’s delicate ecosystem. They also hope to spur public officials to require the company to provide an evacuation route for St. James.

Because of the resistance, Energy Transfer Partners maintains a hefty security force.

The company has relied on at least three firms—Hub Enterprises, Athos Group, and Hillard Heintze—to monitor the 163-mile route and to keep tabs on those who oppose the project.

To fulfill that mission, Athos and Hub hired probation and parole officers, employees of the state of Louisiana under the Department of Public Safety and Corrections, to fill those jobs.

Between September 2016 and July 2018, nearly 60 officers assigned to the Louisiana Division of Probation and Parole were approved to work secondary jobs providing pipeline security through one or both of the companies.

Since The Appeal began its investigation, probation and parole officers have stopped working for the Bayou Bridge project.

“Our officers are out of that detail now and I believe that you can talk to Hub and I’ve heard that Hub has maybe some St. Martin Parish deputies working that detail now,” Pastorick said.

Citing a confidentiality agreement with Energy Transfer Partners, Hub Enterprises declined to comment.

An Energy Transfer Partners spokesperson said the company is thankful for local and state law enforcement, but declined to comment on their security firms or on the arrests.

A representative for the St. Martin Parish Sheriff’s Office did not respond to multiple requests for comment.

It is unknown how many, if any, deputies from the department work secondary jobs for Bayou Bridge.

Quigley, the activists’ attorney, said he finds it very troubling that a big corporation can come into the state and hire state and local law enforcement employees as their private security guards.

“Once hired, the corporation has the private benefit of public employees showing up in state law enforcement uniforms with state-issued weapons and state-issued gear to impose the power of the state on behalf of the highest bidder,” he said.

“What shows the raw power of big money more than bringing in the big guns of state law enforcement?  This is an absolute abuse of public trust,” Quigley added.

White Hat said, “They are targeting strong women, who are inherently protectors of the water and they’re coming straight at us in a very cowardly way.”  She added that “ultimately what’s at stake is clean water for our kids—for more than 300,000 people, for the city of New Orleans and for South Louisiana.”

“We’re not going to let people bully us around like that,” White Hat said. “They will be held accountable.”

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