The phrase “human rights violation” is thrown around in such a wide range of contexts that it has lost its sharpness on the ears. When the United Nations labeled the case of Steven Donziger a “human rights violation”, it was a gentle slap upon the wrist of the United States justice system. Donziger, an American human rights lawyer charged with contempt misdemeanor, was under house arrest for 814 days, and recently sentenced to six months in prison, before even being put on trial.

Texaco, now merged with Chevron, drilled oil from the Ecuadorian Amazon from 1964 to 1990. During this period, Texaco dumped 16 billion gallons of toxic wastewater and spilled 17 million gallons of crude oil into the ocean and left hazardous waste in hundreds of pits dug in the forest floor. This has now become known as the “Amazon Chernobyl” and is still considered to be the world’s largest oil-related catastrophe, but it isn’t typically ranked among oil catastrophes due to it being the direct and intentional result of Chevron’s actions to cut costs. The effects on the local population have been devastating: death, cancer, birth defects, and more are directly being caused by Chevron’s actions. Chevron, instead of taking responsibility, have launched a large public relations campaign, and have pursued vicious legal action.^[1]

This is where Steven Donziger comes in. Donziger, along with Ecuadorian lawyers, represented the Indigenous people and farmers of Ecuador against Chevron for more than 27 years. They first filed a suit in 1993, but after Texaco successfully lobbied, the trial was moved from the United States to Ecuador. In 2011, Donziger and his team of Ecuadorian lawyers won the case, and Chevron was ordered to pay $9.5 billion to fix environmental damages and pay for clean water and healthcare for those affected.^[1] Chevron took the case all the way to the Ecuadorian supreme court, which affirmed the earlier ruling. Running out of options, Chevron went to the New York federal court and sued Donziger under a non-criminal provision in the RICO Act, placing him under house arrest.^[2] Chevron dropped demands for financial damages caused by Donziger, as that would require a jury trial (something that Donziger has not received). Judge Lewis A. Kaplan, a former corporate lawyer who has defended tobacco companies, became Danziger’s judge-and-jury for this case. Throughout the case, Kaplan has refused to look at scientific evidence from the original case, based a significant portion of his ruling on witness Albert Guerra (who later retracted some of his testimony, admitting it was false), and has ordered Donziger to pay millions in attorney’s fees to Chevron. In 2014, Kaplan then found Donziger and his Ecuadoran team guilty of bribery and fraud.^[3] This convoluted the ability for any plaintiffs in Ecuador to collect the damages they were owed in the United States. On top of this, Chevron demanded Donziger turn over decades worth of client communications, including Donziger’s personal phone and computer. Seeing this as a threat to attorney-client privilege, he appealed. But while this appeal was pending, Judge Kaplan gave Donziger a contempt of court charge for his refusal to give up the devices. Kaplan requested the U.S. Attorney of the Southern District of New York to prosecute Donziger, but they declined.^[3]

Undeterred, Kaplan took an unprecedented step in appointing a private law firm to prosecute Donziger in the name of the U.S. government. The firm appointed, Seward & Kissel, has had numerous oil and gas clients before. Private prosecution in the United States is largely based on state’s laws. For example, California has made the practice illegal, but in New York, the practice is still allowed when there is a “underlying civil cause of action”.^[4] Kaplan then must have seen an “underlying civil cause of action” to appoint Seward & Kissel. To combat this, Donziger and his legal team used the United States Supreme Court’s June 21^st ruling in United States v. Arthrex Inc.^[5] The court ruled that the appointment of judges on the Patent Trial and Appeal Board violated a constitutional provision intended to keep government officials accountable. This then, in principle, should have extended to criminal justice procedure, but it did not convince the court. Chevron has also had a hand in supporting the judge appointed to hear the trial; Judge Loretta Preska is a member of the Chevron-funded Federalist society.

Preska has recently found Donziger guilty of contempt and has sentenced him to the maximum sentence of six months in prison. An appeal to this decision is currently underway. However, Donziger has recently turned himself in and has been admitted to the federal prison in Danbury, Connecticut. This trial has not only been tough legally for Donziger, but personally as well. His 814 days under house arrest has taken its toll on his family, and there is no justice that will make up for that lost time.

The Donziger case represents a dangerous new approach to how justice is dealt in the country. By allowing a corporation to appoint a private law firm, the United States government has given them the power to prosecute one of their most vocal critics. The precedent this sets is dangerous. While private prosecution has been used for decades, it is rarely seen today, as it obscures the ability for the public eye to keep watch. For a judge to be handpicked due to their ties to a corporation instead of being randomly selected is mind-blowing. That same judge denying a jury or any sort of outsider to be involved will clearly lead to Donziger’s trial being skewed. Now that Donziger’s trial has gained more attention, it is time to look at the role of private prosecution in trials. It isn’t inherently bad; as David Friedman points out in his article in the Journal of Financial Crime, “Private prosecution appears to provide a valuable supplement to public law enforcement in the areas of environmental and white-collar crimes.”^[4] However, policies that prohibit the use of private prosecution in the way it was used in the Donziger case do not exist. I do not think anyone is at fault for this, as Chevron used a perverse and manipulative version of private prosecution against Donziger. It is unfortunate that it took a man being deprived of human rights for 800 days for the dangers of corporate prosecution to be exposed, but now that this trial is on display for the world to see, it is time to act.

Chevron’s website presents their side of the story and provides images of their rehabilitation of the Ecuadorian Amazon. On their website it reads: “Chevron to Ecuador: Keep Your Promise, clean up the Amazon”.^[6] Their rehabilitation fund, however, was merely $40 million dollars. The recovery efforts that are required for the clean-up and welfare of the Indigenous and local populations are severely more than $40 million but admitting wrongdoing and paying the $9.5 billion would result in Chevron’s public image being damaged. It would be a terrible mark for the United States justice system to admit any wrongs as well. This could explain why current Attorney General Merrick Garland has failed to act upon the case, despite outcry from both the public and elected officials like representatives Cori Bush, Rashida Tlaid, Jamaal Bowman, Alexandria Ocasio-Cortez, and Jamie Raskin. After Donziger’s recent imprisonment, news outlets such as the New York Times and CNN have reported on the case. For more people to be aware of the Donziger case and the wrong doings in Ecuador are a major first step in achieving justice for all parties involved.

So far, there has not been a single previous case like this one in the history of the United States. Steven Donziger is now imprisoned, and hundreds of people in Ecuador are still dealing with the consequences of Chevron’s actions. For a corporation to have the power to prosecute activists and protestors, and for the United States Government to comply, sets a dangerous legal precedent. Policies must be introduced to protect the public against these sorts of trials, and Steven Donziger’s story must be told.

---

[1] Amazon Watch. 2020. Chevron Toxico The Campaign for Justice in Ecuador. Accessed October 2021. https://chevrontoxico.com/.

[2] Donziger, Steven. 2021. Free Donziger. Accessed October 2021. https://www.freedonziger.com/.

[3] Lerner, Sharon. 2020. “How the Environmental Lawyer Who Won A Massive Judgment Against Chevron Lost Everything.” The Intercept. January 29. Accessed October 2021. https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger/.

[4] Friedman, David S. 2021. “USA: Private Prosecution of Criminal Conduct.” Journal of Financial Crime 130-136.

[5] Malo, Sebastien. 2021. “Citing Arthrex, Donziger says private prosecutor unconstitutional.” Reuters. June 23. Accessed October 2021. https://www.reuters.com/legal/government/citing-arthrex-donziger-says-private-prosecutor-unconstitutional-2021-06-23/.

[6] Chevron. 2021. Ecuador Lawsuit. Accessed October 2021. https://www.chevron.com/ecuador.