Above Photo: From Lastrealindians.com
Of the 831 state arrests from Standing Rock, 578 have concluded so far. A large majority of those, (337), were won through dismissal or acquittal at trial. This is a huge success for Water Protectors and for the many attorneys and legal workers who have been working steadily for over a year and half and are continuing those efforts unabated. However these numbers are also clear evidence that these arrests should never have occurred in the first place.
Below is some information about the most common ways that cases can be resolved if they are not dismissed and the Water Protector chooses not to take it to trial, as well as an update on the trials that are scheduled to happen throughout the spring.
Everyone with pending criminal charges has an absolute right to fight their charges all the way through trial. Water Protector Legal Collective is advocating fiercely on behalf of all Water Protectors with open cases, working diligently to extend the broadest range of positive outcomes possible and to support everyone through the full process, from arrest through motion practice and discovery and to trial. An important aspect of this work is negotiating favorable non-cooperating pretrial resolution offers that are one option available to Water Protectors for resolving their cases without going to trial.
A “plea deal” or “plea agreement” is one way to resolve a criminal case without having a trial. In exchange for a plea of “guilty” to one or more of the charges, the prosecution agrees to a reduced sentence and in some cases drops some of the charges. Over 90% of state criminal cases in the United States resolve before trial with a plea deal or some type of postponed dismissal agreement. In federal prosecutions that number is even higher: over 97%. In general, this is not necessarily an indicator of the strength of the cases, but unfortunately is simply a reflection of the fact that these resolutions are almost always pose less risk than taking a case to trial, and in many cases the risks of going to trial are extremely high. Going to trial can be financially and psychologically burdensome on an individual and their loved ones, and exposes people to potentially serious criminal and other types of consequences and impacts.
The plea agreements that WPLC has worked to make available to Water Protectors with charges from Standing Rock are all “non-cooperating” agreements. This means they do not require snitching or giving any testimony, evidence or other information to be used against someone else. In the state cases, they also are all offers that involve no additional jail time. (Please see our Water Protector Prisoners page for information about the federal plea agreements that will involve substantial prison time.)
WPLC is not aware of any deal being offered or accepted in any Standing Rock case that would require cooperation with the state or federal government to harm any other Water Protector.
Non-cooperating plea agreements are a legitimate and honorable option to consider in light of your individual situation. People have widely varied circumstances and goals with respect to their court cases. There is no blanket answer to whether or not it is a good choice to make, and which factors matter most will be different for everyone.
As of April 17th, 226 Water Protectors have chosen to accept some form of pretrial agreement and many more are considering whether or not to do so.
Deferred Imposition of Sentence:
The vast majority of the plea agreements that Water Protectors have accepted in their state (non-federal) cases are non-cooperating “Deferred Imposition of Sentence” agreements. This does require entering a plea of “guilty” and forfeiture of any bond posted. If you successfully complete the specified period of time without a new arrest the guilty plea is automatically withdrawn and the case dismissed with the file sealed after a specified period of time – here the time period has usually been six months or one year.
If you are rearrested during that time period and that fact becomes known to Morton County prosecutors they could decide to sentence you for the charge you pled guilty to, but your attorney would still have an opportunity to negotiate or litigate what the sentence or other consequence should be.
A deferred imposition of sentence can also be imposed by the court as a sentence after a trial if someone has been convicted. This has been a common outcome in the Standing Rock cases where to date we have had 19 Water Protectors convicted at trial, and five of those were sentenced to Deferred Imposition of Sentence.
As of April 24, 122 Water Protectors have accepted Deferred Imposition of Sentence agreements instead of going to trial.
Other than outright dismissals or plea agreements, the most common pretrial resolution in these Standing Rock cases have been “Pretrial Diversions.” This is different from a plea agreement because it does not require a plea or acknowledgment of guilt. This is essentially a postponed dismissal – suspending the proceeding for a specified period of time (in these cases it has ranged from a single day up to 12 months) and then dismiss the charges with forfeiture (giving up to the state) of any bond money that was posted at the time of the arrest.
In some cases where pretrial diversions have been offered there is also a requirement of a $100 “community service fee”. This fee can either be paid to the state or can be paid to one of a list of approved nonprofits (including some that work to support indigenous peoples in North Dakota). If you would like to accept an offer that includes this fee but don’t have the financial resources to do so, please contact WPLC and we can assist with finding funds to cover it.
An element of this type of agreement is that prosecutors do reserve the right to reopen and prosecute the case if a new arrest comes to their attention during the time period specified in the agreement. Because these diversions do not require a guilty plea, if the case is brought back to life you would then be back at the same place and with all the same options available to you as if you had not agreed to the pretrial diversion (you could still negotiate a plea agreement or fight your case and take it to trial at that time).
As of April 24, 2018, 106 Water Protectors have accepted Pretrial Diversions.
Impact on Future Civil Claims:
WPLC’s cooperating civil attorneys are in the process of preparing a class action lawsuit regarding the arrests on October 22, 2016. They and other attorneys have also been discussing potential civil claims with certain people who were arrested on October 27, 2016, and other dates. Accepting a plea agreement or pretrial diversion could result in you not being able to be included in these potential lawsuits.
If you were injured by law enforcement at Standing Rock during the fall or winter of 2016-2017, or if you were arrested on October 22, 2016, you can contact our civil litigation team here.
Anyone considering a future civil claim should discuss the pros and cons of a plea or diversion agreement with your criminal defense attorney and with your civil attorney.
Lawyers have an ethical obligation to advise their clients as to what, in their opinion, is the least risky course of action. They also must always relay the details of any plea offers to their clients. Like all decisions about litigation, the decision about whether or not to accept a plea always remains solely with the client.
There are often very good reasons to encourage a client to accept a plea offer or a pretrial diversion, or to encourage them to reject a plea or diversion and take their case to trial. Factors to weigh include: the terms of the plea or other pretrial agreement being offered, what risks or possible harms that particular client faces given their individual circumstances, the maximum penalties they face, the strength of the case against them, and the availability and interest of each client to engage in ongoing court dates or trial (which in these cases may involve a significant amount of travel back to North Dakota). Decisions about whether or not to accept an offer can be very emotional and difficult to make. It is always an individual and deeply personal choice and ultimately each Water Protector must make their own decisions about it.
If you feel that your attorney is inappropriately pressuring you to accept a plea agreement that you do not want, please call the WPLC hotline at (701) 566-9108 and we will do our best to find you a new lawyer at no cost to you.
WPLC is continuing to actively support and represent Water Protectors who have chosen not to accept any offered plea agreement, or who have not been offered plea agreements. Over the next several months, there are 144 trials scheduled, from arrest dates including the mass arrests at Last Child Camp (February 1, 2017) and the eviction of Oceti Šakowiŋ camp (February 23, 2017). Please check our website and Facebook pages regularly for news about these cases.
WPLC remains committed to supporting Water Protectors in fighting their Standing Rock cases and we continue to advocate for the best possible range of options for Water Protectors to choose from to successfully resolve their cases. If you were arrested in relation to water protector activities at the Standing Rock ceremonial encampments and you do not have a lawyer, or if you need help getting in touch with your lawyer, please call the WPLChotline at (701) 566-9108 or email WPCriminalDefense@protonmail.com. We will be happy to help you arrange for an effective lawyer to represent you at no cost to you. Our goal is to ensure that everyone facing charges as a result of the DAPL resistance has excellent legal representation.