Minnesota has long been a leader in campaign finance reform. It had campaign reporting requirements and spending limits for decades before Watergate. In 1974, in response to Watergate, it enacted an ethics in government act, Laws 1974, ch. 470, including several campaign finance reforms. It imposed new contribution limits and spending limits, §§ 25, 27, codified as amended at Minn. Stat. §§ 10A.25 , 10A.27 . It provided public financing for candidates for statewide office and for legislators through an income tax checkoff. § 31, codified as amended at Minn. Stat. § 10A.31 . And it provided a tax credit of $12.50 per person for contributions to candidates for state office, or $5 for contributions to a political party. § 35, codified at Minn. Stat. § 290.06, subd. 11 (repealed 1987).
In 1974, Minnesota's contribution limits were set at ten percent of the spending limit. For example, the governor's spending limit was about $600,000, so the limit on contributions to a candidate for governor was about $60,000. The limit on contributions to a candidate for state representative was about $750. A political party could not contribute more than 50 percent of the spending limit to a candidate, or $300,000 to a candidate for governor. Laws 1974, ch. 470, § 27, codified as amended at Minn. Stat. § 10A.27 .
In 1977, following the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), a federal district court in Minnesota struck down the expenditure limits, taking the contribution limits with them. Bang v. Chase, 442 F. Supp. 758 (D. Minn. 1977), aff'd mem. sub nom. Bang v. Noreen, 436 U.S. 941 (1978).
The 1978 Legislature responded by enacting contribution limits that were not tied to spending limits but were the same amounts as computed under the old system, i.e., $60,000 for governor and $750 for state representative in election years, with a separate limit for non-election years that was, for most candidates, 20 percent of their election-year limit. Laws 1978, ch. 463, § 76, amending Minn. Stat. § 10A.27.
In 1991, the Legislature passed a bill to reduce the governor's contribution limit from $60,000 to $20,000. Laws 1991, ch. 349, § 17, amending Minn. Stat. § 10A.27. Governor Carlson vetoed the bill, but returned the bill to the Senate after the three-day deadline, so the veto was declared invalid and the bill declared law by the Ramsey County District Court. Seventy-seventh Minnesota State Senate v. Carlson, No. C3-91-7547 (Aug. 2, 1991).
Having learned the proper veto technique in 1991, Governor Carlson vetoed the first campaign finance reform bill presented to him in 1993, H.F. No. 163, Laws 1993, ch. 173, but signed a second one that added limits on independent expenditures, which he demanded in return for his signature. H.F. No. 201, Laws 1993, ch. 318. The limits on independent expenditures have now been thrown out by the federal courts, see, Day v. Holahan , 34 F.3d 1356 (8th Cir. 1994), and Republican Party of Minnesota v. Pauly , No. 98-1698 ADM/AJB (Sep. 17, 1999), but the $2,000 limit on contributions to a candidate for governor remains.
The tax credit for political contributions was repealed in 1987, in an effort to simplify the income tax form following the enactment of the Internal Revenue Code of 1986. Laws 1987, ch. 268, art. 1, § 127. But it was reinstated in 1990, with the dollar amounts increased to $50 per person for contributions either to a state candidate or to a political party and a separate form was required to claim it. Laws 1990, ch. 608, art. 3, § 28, coded as amended at Minn. Stat. § 290.06 , subd. 23. In 1991, the tax credit was made a refund, so the amount a taxpayer may receive from the State is no longer limited by the amount of taxes owed. Laws 1991, ch. 291, art. 6, § 24.
The spending limits allow for two significant upward adjustments. First, any candidate running for the office the first time receives a ten-percent increase in the spending limit. Second, any candidate involved in a contested primary, i.e., one who received less than twice as many votes as any opponent, is given a 20 percent increase in spending limit.
The spending limits are high enough, and the public subsidy generous enough, that almost all candidates who may participate in the program choose to sign a spending limit agreement. In every election since 1990, over 90 percent of all candidates have signed a spending limit agreement. In 2000, the participation rate for legislative candidates who filed for office and raised or spent more than $100 on their campaign was 98 percent. Campaign Finance and Public Disclosure Board, "2000 Campaign Finance Summary" (visited Sept. 12, 2002) <http://www.cfboard.state.mn.us/summary00/index.html>.
In 2002, the Legislature added a requirement that the principal campaign committee of a candidate who signs a spending limit agreement must not make independent expenditures. Laws 2002, ch. 363 , § 23, coded as Minn. Stat. § 10A.25, subd. 3a.
Once the candidate has signed a spending limit agreement and filed it with the Campaign Finance and Public Disclosure Board, the board provides the candidate with a supply of official political contribution receipt forms. Minn. Stat. § 10A.322 , subd. 4. Upon receipt of a private contribution, the candidate gives a form to the contributor, who files it with the Commissioner of Revenue. Minn. Stat. § 290.06 , subd. 23. The contributor may file only one form per year, to cover all the contributions made that year, but it may be filed at any time during the year and up to April 15 in the year after the contribution was made. Id.
The Commissioner of Revenue then refunds the amount of the contribution, up to $50 for an individual or $100 for a married couple filing jointly. Id. The refund applications are processed throughout the year, so that a contributor may expect to receive the refund within about eight weeks after filing it. The refunds are paid out under an open appropriation from the general fund.
Even though the program has now been in place for over ten years, people still find it hard to believe. "You mean, if I make a contribution of up to $50, I can get all my money back?" Yes, you can. In 1998, the State paid over $2.2 million in political contribution refunds. The program provides public money to fund political campaigns, but who gets the money is decided by each individual contributor, $50 at a time.
The program was designed to, and does, provide candidates with the early money they need to get their campaign started. But no public money is spent until a candidate has first received the same amount from an individual contributor.
The second major source of public money for Minnesota candidates is the income tax checkoff. Immediately following the state primary in September, all candidates who have signed a spending limit agreement, filed an affidavit of private contributions, have an opponent in either the primary or the general election, and whose names will appear on the ballot in the general election receive a payment from the State. Minn. Stat. § 10A.31 , subd. 6. The payment comes from money checked off on the individual income tax form. Minn. Stat. § 10A.31 , subds. 1-5.
The private contributions a candidate must raise in order to be eligible to receive a public subsidy are not really "matching" contributions. The amount the candidate receives from the State does not vary depending on the amount raised privately. Rather, the private contributions are a threshold the candidate must raise to prove the candidate is viable. All viable candidates are treated the same, regardless of the amounts they raise privately.
Minn. Stat. § 10A.323 .
The contributions must be from individuals eligible to vote in the state, counting only the first $50 received from each contributor. An individual may contribute more, up to $500 to a candidate for the legislature or $2,000 to a candidate for governor. But only the first $50 from each individual counts toward the threshold requirement. Each contributor must be eligible to vote in the state, but contributors to a candidate for the Legislature need not be residents of the legislative district.
The payment after the primary comes from the party account in the state elections campaign fund. The party account consists of the amounts designated by taxpayers for a particular political party. The amount of the checkoff is $5 per taxpayer. Its cost is paid by a transfer from the general fund to the state elections campaign fund, so checking off does not increase the amount the taxpayer pays or reduce the amount of the taxpayer's refund. The amounts checked off for each party are credited to the party's account and allocated among the various statewide and legislative offices in accordance with a statutory formula.
The amount allocated for legislative offices is further allocated to legislative districts in accordance with the amounts checked off for that party by taxpayers living in the district. Allocating the amounts back to the legislative districts from which it came was the result of a decision by the federal district court in the case of Bang v. Chase , 442 F. Supp. 758 (D. Minn. 1977), aff'd mem. sub nom. Bang v. Noreen , 436 U.S. 941 (1978). The court threw out the original allocation formula, which allocated the checkoff money back to legislative districts based on the political party's strength statewide. The court said the original formula discriminated against certain candidates based on their party affiliation, since the support for a particular party statewide had "no rational relation to the support for particular parties or for particular candidates within legislative districts." 442 F. Supp. at 768. The result of this court-mandated change in the formula was to provide the most public money to candidates where it was least needed, i.e., the most money goes to Democratic candidates in strong Democratic districts and to Republican candidates in strong Republican districts.
There is a limit on how much party account money a candidate may receive. Since the money only goes to candidates who have signed a spending limit agreement, they may not be paid from the party account more than their spending limit. Minn. Stat. § 10A.31 , subd. 6.
Most of the candidates who receive money from the party account also receive a payment of income tax checkoff money from the general account. The general account consists of amounts checked off by taxpayers who chose to distribute their money equally among all eligible candidates, rather than only to the candidates of one party. As with the checkoff to the party account, the checkoff to the general account is financed by an appropriation transfer from the general fund to the state elections campaign fund and has no impact on the amount paid by the taxpayer. To receive a payment from the general account a candidate must have signed a spending limit agreement, filed an affidavit of contributions, and had an opponent in either the primary or the general election. Minn. Stat. § 10A.31 , subd. 7(a)(1)-(3).
For elections from 1974 to 2000, the general account money was paid after the general election only to candidates who had received at least a certain number of votes in the general election. A candidate running statewide had to receive at least five percent of the votes cast in the general election for that office. Minn. Stat. § 10A.31 , subd. 7(a)(4). A candidate for the Legislature had to receive at least ten percent of the votes cast for that seat. Id. The timing of the payment meant that candidates did not have the general account money at the time when they needed to spend it -- before the election. They often borrowed money in anticipation of receiving the general account money after the election. This was a particular problem for Jesse Ventura in the election of 1998. He would be eligible to receive about $310,000 from the general account if he received at least five percent of the vote. His polling numbers were good, but as a first-time candidate, he had no track record. The major banks would not loan him the money. Finally, in mid-October, he found a small neighborhood bank willing to loan him the money. He spent it before the election, and won. In 2001, he persuaded the Legislature to change the payment of the general account money so that candidates would receive it immediately following the primary. Laws 2001, 1Sp. ch. 10, art. 18, § 2, coded as Minn. Stat. § 10A.31 , subd. 7. Rather than require that the candidate have received a certain number of votes, the law now requires only that the candidate be from one of the major parties. There is also a new requirement that the candidate spend or become obligated to spend at least half the general account money no later than the end of the final reporting period (17 days) before the general election. Id.
The money in the general account is divided equally among all eligible candidates, except that no candidate may be paid an amount from the general account that would cause the sum of the money from the party account plus the money from the general account to exceed 50 percent of the candidate's spending limit. Minn. Stat. § 10A.31 , subd. 7(b). Money not paid to a candidate because of the 50-percent limit is allocated back to all the other candidates until all have reached the 50-percent limit or the balance in the account is exhausted.
The amounts provided by the checkoff program have increased from time to time, in spite of the declining participation rate, because the Legislature has increased the dollar amount. The dollar amount began at $1, was increased to $2 in 1980, Laws 1980, ch. 587, art. 3, §§ 4-6, and increased to $5 in 1987. Laws 1987, ch. 268, art. 1, §§ 1-3.
By the 1990s, it was obvious that the checkoff alone, even if it were increased again at regular intervals, would not provide the public money needed to level the playing field in political campaigns. Another source was needed.
In 1993, as part of the negotiations over a major overhaul of the campaign finance system, Governor Carlson insisted on supplementing the general account with a permanent appropriation from the general fund. The amount agreed to was $1.5 million for each election. It was written into the statutes as a standing appropriation, so the Legislature would not need to reauthorize it every two years. Minn. Stat. § 10A.31 , subd. 4. Likewise, it was Governor Carlson who insisted on adding the 50-percent limit, so that this new public money would not be wasted on races that were not competitive.


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I agree with the Court that “the statute has an ambiguity,” ante, at 5, with respect to whether an alien who was coerced to assist in persecution is barred from obtaining asylum in the United States. I agree that the agency is entitled to answer that question. Ibid. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). And I agree that a remand is in order, to give the agency an opportunity to clarify whether its affirmative answer was premised on an erroneous view that this Court’s decision in Fedorenko v. United States, 449 U. S. 490 (1981), compelled it. Ante, at 11.
I would not agree to remand if I did not think that the agency has the option of adhering to its decision. The majority appears to leave that question undecided, ante, at 5 (reserving whether “a particular agency interpretation is reasonable”); two Justices forthrightly disagree and would require the agency to recognize at least some sort of duress exception, post, at 7 (Stevens, J., concurring in part and dissenting in part).
But good reasons for the agency’s current practice exist—reasons adequate to satisfy the requirement that an agency act reasonably in choosing among various possible constructions of an ambiguous statute. The statute does not mandate the rule precluding the duress defense but does not foreclose it either; the agency is free to retain that rule so long as the choice to do so is soundly reasoned, not based on irrelevant or arbitrary factors (like the Fedorenko precedent).
The primary contention to the contrary is, in short, that barring aliens who persecuted under duress would punish purely “nonculpable” conduct. That argument suffers from at least three unjustified leaps of logic.
First, it implicitly adopts a view of “culpability” that is neither the only view nor one necessarily applicable here. The culpability of one who harms another under coercion is, and has always been, a subject of intense debate, raising profound questions of moral philosophy and individual responsibility. (The so-called “Nuremberg defense” comes readily to mind.) At common law, duress was not an accepted defense to intentional killing, see 2 W. LaFave, Substantive Criminal Law §9.7(b), pp. 74–75 (2d ed. 2003); and in modern times, some states do not allow it as a defense to lesser crimes, see id., at 81–82, and n. 50. Notably, there is no historical support for the duress defense when a soldier follows a military order he knows to be unlawful. Id., §9.7(g), at 86; see also, e.g., Axtell’s Case, Kel. J. 13, 84 Eng. Rep. 1060 (1660); Prosecutor v. Erdemoviæ,  2 ICTY Jud. Rep. 1610, 1635 (Int’l Crim. Trib. for Former Yugoslavia). It is therefore far from clear that precluding a duress defense here would, as petitioner alleges, “disregard principles of blame . . . ‘universal and persistent’ in American law.” Brief for Petitioner 32 (quoting Morissette v. United States, 342 U. S. 246, 250 (1952)). All of this suggests that those who are coerced to commit wrong are at least sometimes “culpable” enough to be treated as criminals.
More importantly, this is not a criminal matter. This Court has long understood that an “order of deportation is not a punishment for crime.” Fong Yue Ting v. United States, 149 U. S. 698, 730 (1893). Asylum is a benefit accorded by grace, not by entitlement, and withholding that benefit from all who have intentionally harmed others—whether under coercion or not—is not unreasonable.
Second, petitioner assumes that the persecutor bar must have been intended merely to punish wrongdoing. But in the context of immigration law, “culpability” as a relevant factor in determining admissibility is only one facet of a more general consideration: desirability. And there may well be reasons to think that those who persecuted others, even under duress, would be relatively undesirable as immigrants. If, for example, the asylum laws grant entry to those who suffered the persecution, might it not be imprudent to also grant entry to the coerced persecutor, who may end up living in the same community as one of his victims? The Nation has a legitimate interest in preventing the importation of ethnic strife from remote parts of the world, and the agency may resolve the statutory ambiguity in a way that safeguards that interest.
Finally, even if culpability is the only relevant factor, and even if a narrow, criminal-law based view of culpability is the authoritative one, a bright-line rule excluding all persecutors—whether acting under coercion or not—might still be the best way for the agency to effectuate the statutory scheme. See generally Cox & Posner, Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809 (2007). Immigration judges already face the overwhelming task of attempting to recreate, by a limited number of witnesses speaking through (often poor-quality) translation, events that took place years ago in foreign, usually impoverished countries. See Dia v. Ashcroft, 353 F. 3d 228, 261–262 (CA3 2003) (en banc) (Alito, J., concurring in part and dissenting in part). Adding on top of that the burden of adjudicating claims of duress and coercion, which are extremely difficult to corroborate and necessarily pose questions of degree that require intensely fact-bound line-drawing, would increase the already inherently high risk of error. And the cost of error (viz., allowing uncoerced persecutors to remain in the country permanently) might reasonably be viewed by the agency as significantly greater than the cost of overinclusion under a bright-line rule (viz., denial of asylum to some coerced persecutors—who might anyway be entitled to protection under the Convention Against Torture, which includes no analogous persecutor bar).
It is worth noting that although the agency’s “objective effects” approach to the statute would seem to sweep beyond the duress scenario to encompass even an alien who had no idea that his actions would “objectively” assist in persecution, see Castańeda-Castillo v. Gonzales, 488 F. 3d 17, 20 (CA1 2007) (en banc), there is no reason why the agency cannot consider questions of knowledge separate and apart from questions of duress. Both can be said to relate to the mental state of the persecutor,* but they present different problems which can be grappled with separately. The agency need not provide an “all-embracing answer,” ibid., in the present case. It may evaluate problems one by one as they arise, and whatever it might decide about an unknowing persecutor is irrelevant to petitioner, who knew exactly what he was doing.
To be clear, I do not endorse any particular rule. It is to agency officials, not to the Members of this Court, that Congress has given discretion to choose among permissible interpretations of the statute. They deserve to be told clearly whether we are serious about allowing them to exercise that discretion, or are rather firing a warning shot across the bow.
* The rationale for the duress defense, however, is conventionally “not that the defendant … somehow loses his mental capacity to commit the crime in question,” but rather that “even though he has done the act the crime requires and has the mental state which the crime requires, his conduct … is excused.” 2 LaFave, supra, §9.7(a), at 73.

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Fundamental fairness is the common thread woven into all parts of the criminal justice system. Due process is required in all stages of a criminal prosecution, and its importance in plea bargaining should not be minimized. Because most criminal cases are resolved through plea bargaining, the means by which plea agreements are put together must be carefully considered by the trial court. To assure fundamental fairness of the bargaining process, it is essential for trial courts to ensure that plea agreements, and ultimately guilty pleas, are knowingly, voluntarily and intelligently (“KVI”) entered by defendants. This then should lead the zealous appellate attorney to scrutinize carefully what are commonly called by the federal district courts “locked plea agreements,” (sometimes called “tied plea agreements,” or “package deal agreements”). Sometimes the lock should be picked to release the defendant from a coerced plea agreement.
“As their name suggests, package deal plea bargains exist where the government accepts a defendant’s guilty plea on the condition that his co-defendant(s) also plead guilty.” United States v. Hodge, 412 F.3d 479 (2005). “The incentive to join such arrangements is straightforward: the government offers defendants a volume discount- a better deal than each could have gotten separately.” Id. citing United States v. Caro, 997 F.2d 657, 658 (9th Cir. 1992). “Of course, the benefits of such deals are seldom distributed evenly, and every defendant may not be equally interested in bargain shopping. Familial or fraternal coercion of putative confederates in package plea deals is a serious concern.” Id. citing United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990).
In general, locked plea agreements have been found to be constitutional. See United States v. Pollard, 959 F.2d 1011, 1021-22, (D.C.Cir. 1992), United States v. Marquez, 909 F.2d 738, 742 (2nd Cir. 1990); United States v. Seligsohn, 981 F.2d 1418, 1426 (3rd Cir. 1992). However, under certain circumstances they may violate a defendant’s rights. As observed by the Court in Hodge, “[t]hough reserving judgment on the question, the Supreme Court has warned that offers of leniency or adverse treatment for some person other than the accused might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.” Id. citing Bordenkircher v. Hayes, 434 U.S. 357, 365 n. 8 (1977).
More troubling is the element of coercion that may be present in certain locked plea deals. “Though allowed, package deal pleas pose special risks, particularly when a trial court is unaware that defendants’ pleas are tied together.” Hodge. These risks include undue influence of a co-defendant, and the coercive effect of having a spouse or relative subject to lengthy confinement. Imagine a married couple being jointly tried for a fraudulent scheme, or tax evasion, where they have small children at risk of having both parents serving lengthy prison terms. An innocent spouse may succumb to accepting a deal to protect the guilty spouse in order to protect their children from foster care. The First Circuit is considered to have “an extensive jurisprudence in this area.” Hodge. See United States v. Mescual-Cruz, 387 F.3d 1 (1st Cir. 2004)(package deal plea set aside when district court was uninformed of the packaging); United States v. Buckley, 847 F.2d 991 (1st Cir. 1988)(the district court should inquire of the defendant what benefit he expects to gain from the deal before accepting plea); United States v. Martinez-Molina, 64 F.3d 719 (1995)(the district court should take care to inquire whether anyone in addition to the prosecutor threatened or in any way coerced the defendant to take the packaged deal); United States v. Daniels, 821 F.2d 76 (1st Cir. 1987)(the district court should be particularly attuned to even mild expressions of reluctance to enter guilty plea based on a packaged plea bargain).
Not every Circuit has adopted a formal “special care colloquy” when it comes to locked plea bargains. But it has a practical efficiency that all should approve. If faced with a situation on appeal involving a locked plea bargain, closely scrutinize the record in a fashion similar to the “special care colloquy.” If the record doesn’t meet muster, you may have an important, if not winning appellate argument.
At a time when legal experts are taking deeper looks into the problems inherent with plea bargaining, the time may be getting riper to make the argument that locked plea bargains are on their face violate the notion of fundamental fairness, and are thus unconstitutional.

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Example No. 2: The police are actively looking to arrest Bob for the crime of murder. The police contact Bob’s sister at his residence. She knows from news reports that the police have an arrest warrant for her brother. Bob’s sister tells the police that he fled to Arizona on a motorcycle the previous day. Her misinformation temporarily throws investigators off of Bob’s trail. Her lies would constitute the Crime of Accessory After the Fact.
Knowledge & Intent. Defense counsel may attack evidence that his client “knew” that a felony had been committed when he assisted the perpetrator. Similarly, counsel may aggressively challenge any evidence that the defendant acted with the “intent” to help the perpetrator avoid arrest and punishment.
Because an Accessory must have a specific intent to help someone to avoid the justice system, “intoxication” and other factors relevant to his mental state may be admissible at the time of trial.
Identity of the Accessory. In many cases, defense counsel should aggressively challenge how the police identified the defendant, and the accuracy of any identification procedure utilized. The accuracy of photographic lineups, in field show-ups and live lineups can often be effectively challenged by an experienced criminal defense attorney.
Bill Haney is a former supervising attorney and homicide prosecutor in the Ventura County District Attorney’s Office. Ventura County is widely known to be an aggressive law enforcement jurisdiction. Police and prosecutors typically act harshly towards any person who aids a friend or family member following the commission of a felony. Although the charge is a “wobbler”, i.e., it may be prosecuted as a misdemeanor or a felony, those arrested for Accessory After the Fact will almost always be charged with a felony in Ventura County.
The Accessory charge under Penal Code Section 32 is often used by prosecutors to compel the friends, family members and lesser accomplices of criminal defendants to testify against them in court. For example, it is common for a murder suspect to seek help from friends or family members to destroy evidence or flee the jurisdiction. Law enforcement officials will attempt to track down the family member (the Accessory), arrest him or her, and offer leniency in exchange for testimony against the perpetrator. Leniency could mean a reduced jail sentence, a misdemeanor conviction, or a complete dismissal of the criminal case in exchange for cooperation.
If you or a loved one are offered a leniency agreement in exchange for cooperation, any such deal should be negotiated with the help of an experienced attorney. As a prosecutor, Mr. Haney was responsible for negotiating and drafting leniency agreements for the Ventura County District Attorney’s Office for a 10-year period. Accordingly, he has the knowledge and experience to ensure that your rights are protected.
Often times, Ventura County prosecutors will aggressively bring charges against multiple individuals after the commission of a violent crime. Prosecutors in Ventura County are known to cast a “wide net.” By aggressively investigating and attacking the prosecutor’s case, it is sometimes possible to demonstrate that the defendant is guilty of the lesser charge of Accessory After the Fact, and not the more serious charge of robbery, murder, etc. This can make a tremendous difference in sentencing alternatives. Accessory After the Fact is not a “strike” offense. Additionally, upon the successful completion of probation, a defendant has the ability to petition the court to reduce his felony conviction to a misdemeanor, and ultimately to expunge his conviction altogether.
Beware! There is often a very fine line between the prosecutor’s decision to charge someone as an Accessory After the Fact and the underlying crime committed by the felony offender. For example, if the prosecutor’s office believes that it has the evidence to prove that a get-away driver KNEW that a robbery was planned before the commission of the robbery/homicide, the office may charge the defendant with MURDER and not as an Accessory to Murder After the Fact. Murder can be punished with a life sentence, and even death in some circumstances. If the prosecutor lacks the evidence of pre-existing knowledge, the same get-away driver is subject to no more than a three-year local prison sentence under Penal Code Section 32! Only an experienced, veteran trial lawyer should be consulted in helping you evaluate such a case!
2The underlying crime must be a felony. Penal Code Section 32 does not apply if the defendant attempted to help someone avoid responsibility for a misdemeanor offense.
3Judicial Council of California Criminal Jury Instructions No. 440. (Jan. 2006); see also People v. Nuckles (2013) 56 CVal.4th 601 [defining elements of crime of Accessory After the Fact].
4People v. Cooper (1991) 53 Cal.3d 1158, 1160-1161.
5People v. Plengsangtip (2007) 148 Cal.App.4th 825.
6People v Duty (1969) 269 Cal.App.3d 97, 103-104; People v. Plengsangtip (2007) 148 Cal.App.4th 825 [affirmative falsehoods can give rise to Accessory After the Fact prosecution].
7People v. Wilson (2005) 36 Cal.4th 309, 331.
8Judicial Council of California Criminal Jury Instruction 3402.
9Judicial Council of California Criminal Jury Instruction 3402.
10Penal Code Section § 33.


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Kunal Chattopadhyay, a professor at Jadavpur University, is a member of Radical Socialist, an internationalist Marxist organization in India. This article republished with his permission, from the new anthology History and the Changing Horizon: Science, Environment and Social Systems, ed. Amit Bhattacharyya and Mahua Sarkar, Setu Prakashani, Kolkata and Delhi, in association with UGC-SAP Phase II, History Department, Jadavpur University. 2014.
This paper argues that while the environmentalist movements have often charged that Marxism has been productivist and has ignored the ecological concerns, the reality is more complex. The focus has actually been on Stalinist industrialization and similar processes. It will be necessary to look at the early Soviet period, when a wide ranging attempt was made at conservationism.
Between 1918 and 1929, through complex struggles, but with a good part of the new state apparatus supporting them, the partisans of ecological conservation scored major victories. What was achieved was well in advance of anything that existed in the capitalist countries. It was Stalin’s revolution from above, which ended the last traces of direct working class power and established a bureaucratic dictatorship, that also saw two waves of attacks on the conservationists. The relationship between state, party and scientists and environmental activists was transformed with the proclamation of dialectical materialism as super science over particular sciences.
The attack on Soviet biology and ecology, led by I. I. Prezent and T. D. Lysenko stressed that scientific theory had little use if it did not enhance economic competitiveness with the West or ideologically justify the growing dictatorship. By the mid-1930s, the idea of socialist conservationism was decisively defeated, but this was part of the transformation of the idea of socialism into a bureaucratic rule.
In other words, that Marxism meant a productivist approach has become a routine position even among the left. I exclude those on the left for whom any concern with the environment is petit-bourgeois or utopian.
The first problem such an approach comes up against is the set of extensive notes and writings of Marx and Engels. The present writer has discussed that dimension elsewhere, and a much more significant work exists, namely John Bellamy Foster’s Marx’s Ecology. In this paper we will be more concerned with the argument that twentieth century socialism had a purely productivist orientation, by looking at the experience of the Russian revolution.
In pre-revolutionary Russia there were three conservationist currents. Journals, societies, a semi-governmental commission, and a network of professional ties had linked them. One of these currents, which could be said to be anti-industry, anti-modernism, was represented by A. P. Semyonov-tian-shanskii, I. P. Borodin, and V.E. Timonov. They idealized an agrarian golden age when the earth had not been ruined by humans. They also tended to argue that humans had originally been children of nature, and by removing themselves from nature they were denying themselves the ability to satisfy human aesthetic needs. This current was profoundly influenced by neo-romanticism. Hugo Conwentz, the German conservationist, influenced Borodin.
A second position was utilitarian. The most important Western study, that of Douglas Weiner , uses a translated term – wise-use—to describe them. They were growth oriented and rather statist. They defined resources narrowly, based on the criteria of contemporary utility. For them, conservation was selective. Things and beings whose economic value was as yet unproved were excluded from their excluded from their concerns. The more extreme among them schematically divided life forms into useful and harmful categories, and desired the annihilation of the latter. They were not interested in maintaining the integrity of ecological systems. So they were willing to trim ecological issues to fit them into political and economic goals created without ecological considerations. One can mention here people like A. E. Fersen and the zoologist N. M. Kulagin.
The third position was taken by people like G. A. Kozhevnikov and V. V. Stanchinskii. They presented themselves as politically progressive scientific materialists. It has to be understood that in the context of pre-revolutionary Russia, this was an extremely radical stance. While by the early twentieth century one could be a sort of academic socialist or materialist, it was still hardly a stance likely to get governmental support. The desire of such people for planned and holistic ecological policies led them to become early allies of the Soviet power. These were also some of the key people who would try to resist Stalinist economic policies on ecological grounds.
In the West, the dominant views, including arguments of socialists, are based on Weiner’s writing. Weiner shows that he is opposed to the entire revolutionary socialist project, and makes little difference between Bolshevism and Stalinism. The Russian scholar Feliks Shtil’mark, who had done pioneering work in the Soviet era but had not been able to publish till the end of the USSR, wrote and published his own study after 1991. Shtil’mark argues that materialist scientists and activists were also motivated by deeply held ethical and aesthetic feelings about nature. This led them into a series of confrontations with Stalinism from the late 1920s.
A quarter century ago, presenting a paper on Soviet biology and physics in an international seminar organised by Jadavpur University, I had pointed to T.D. Lysenko and I. I. Prezent as the principal immediate culprits for the unscientific attacks on Soviet scientists in the name of Marxism. While studying soviet ecology, I discovered that even before their attacks on genetics, they had targeted ecologists.
The full story shows how a series of institutions were created, with sometimes enthusiastic support from sections of the Bolsheviks. It also shows how the creation of a new state apparatus led to conflicts over control. The most enlightened role was played by the Peoples’ Commissariat for Education or Narkompros, headed by Anatoly Lunacharsky, with the Narkomzem or Peoples’ Commissariat of Agriculture as its principal opponent. As long as, despite the one party state, there was scope for debate and opposition, it was possible to present and argue and lobby or fight for divergent positions. But from the late 1920s, opposition to the ‘general line’ increasingly became synonymous with counter-revolution. Thereafter, legitimate dissent had less and less space. Between 1929 and 1937, both romantic and materialist environmentalism were smashed.
In 1908, G. A. Kozhevnikov had proposed the setting up of territories where pristine nature would be preserved, since otherwise many species would be doomed to extinction. These were not plans for so-called eco-tourism. Termed zapovedniki, these were to be free of humans, both to protect species, and to study how the environment operated when civilisation was excluded. In defending these areas, he and his associates argued that monocrop agriculture was damaging nature. They pointed out that in monocultures the natural enemies of pests often cannot find appropriate niches to support themselves. A few private initiatives followed, with the support of well to do landowners like Fridrikh Eduardovich Fa’l’ts-Fein in Askania-Nova, in what later became Kherson Oblast.
This effort was soon to be shattered by the revolutions of 1917. In 1861, when the Russian Tsar Alexander II undertook the emancipation of the serfs, it was a move from above that tried to modernise Russia at minimum cost to the state and the ruling class. Consequently, peasants were given personal freedom, but for land, they had to make a further redemption payment. And not the entire land that they had cultivated as serfs were given to them through their communes.
Landlords retained, under direct ownership, in 1861, about 105,000,000 desiatins of land. Despite the growing crisis of the aristocracy, in 1905, they still had 52,104,000 desiatins. The Royal family alone owned, according to one leading Marxist commentator of the early twentieth century, seven million desiatins. In Kherson, as a matter of comparison, the average allotment for peasants was 0.90 acres, and for allotments of 2.9 to 5.8 acres, peasants had to pay redemption payment of 5 to 10 roubles.
Consequently, 18917 saw in Russia, the combination of a working class revolution, the feature of capitalism in its maturity, with a massive peasant war, a feature of the fall of feudalism and early era of bourgeois revolutions. Under such conditions, the initial hopes of the conservationists were dashed. Kozhevnikov, Fal’ts-Fein and others were part of a liberal conservationist movement.
The period between February and October saw a protracted dual power. Two institutions were created. One was a Provisional Government. It was an ad hoc creation, by liberal bourgeois and landlord figures, who wanted the monarchy to pay attention to it rather than to overthrow it, and who therefore even did not declare Russia to be a republic for several months. But the uprising that had toppled the tsar had been created by workers and soldiers, and they made no distinction between the liberal bourgeoisie and the nobility, but distrusted both. They trusted the socialists.
In the initial stages, with a far greater preponderance of intellectuals, the Marxist current that dominated was the Menshevik wing of the social Democrats. Even stronger, among the soldiers, very often peasants in uniform, were the Socialist Revolutionaries, the heirs of Russia’s famous “Narodnik” tradition, who talked about a peasant road to socialism. These two currents, however while setting up a Council of Workers and Soldiers Representatives (the Russian for council being Soviet), did not want power. Instead, they pleaded with the liberals and landlords to take power. But the workers and soldiers trusted only the Soviets.
As a result, while formally the Provisional Government was the government, in reality it had to get Soviet support for its actions. This created a fundamental instability. The peasantry was increasingly insistent that there should be a division of all the landed estates. To argue, in such a situation, that there were also ecological imperatives, would not have been easily understood, especially when the arguments came from people who were landowners themselves.
During the era of the Provisional Government, V. P. Semyonov-tian-shanskii put forward a plan for the creation of a countrywide network of zapovedniki. He suggested that 46 reserves should be created, basing themselves on a broad variety of geographical zones. But the peasant revolts of the autumn came as a blow to liberal policy. Concerned with taking over the landlords’ lands, the peasants did not bother to check whether the Provisional Government, a much hated entity, had promised some of that land for conservation.
After the October Revolution, the conservationists had to turn again to the new government. But it should be noted, that though Semyonov-tian-shanskii’s proposal lay buried for several years, under changed circumstances, and despite many of the destructive impulses of Stalinism on ecology, by the late 1970s almost 80 per cent of the sites he had listed had become protected territories.
The October revolution brought to power the Bolsheviks, originally in a government responsible to the Soviets. As not only landlord and bourgeois Russia, but even the bulk of the moderate socialist parties rejected soviet power, and even chose to support armed violence against it, the democratic life of the soviets died down. As a result, inclinations and ideas of individual Bolshevik leaders on various issues figure more prominently. While the Lenin cult was a creation of a later period, Lenin, as the Head of the Government, as well as one of the foremost party leaders, certainly exercised much influence. Conservationists also had the advantage of conscious support from Anatoly Lunacharskii, the Commissar for Education.
A brief discussion of Lenin’s ideas would be relevant here. Lenin’s view that Communism is Soviet power plus the electrification of the whole country has been often quoted. But this is a simplification, for it suggests a narrowly productivist orientation by citing what was after all a speech ranging from the Treaty of Riga to inner-party debates. But the formula involves certain elements that need to be understood. He saw socialism and the overcoming of class antagonisms as a rational process, once the working class held power, where planning and a scientific approach were vital. At the same time, he stressed that it was necessary to understand the forces and laws of nature, because any desire for the increase of productive forces and the growth of socialism had to take place by obeying those laws and acting in tune with them. He was therefore fully interested in cooperating with scientists as scientists, regardless of their political positions.
During Lenin’s last underground period, after the July Days, his readings included, according to Weiner, some amount of significant ecological material. In addition, as a diverse range of writers from Weiner to Paul le Blanc point out, Lenin had personal interests that tended to make him look favourably upon conservationists. He was well-known for preferring hiking and staying in nature. During his years in exile, he found relaxation in long hikes and treks in the Alps, the Jura, etc, rather than going to cinemas and so on.
All this does not prove, and it is not my intention to claim, that Lenin was therefore an expert in conservation or even that there can be something called the Leninist position on conservation. But the foregoing suggests why he responded favourably to approaches by scientists.
The Congress of Soviets in October (November) 1917, that had seized power, had also issued a Decree on Land, whose main text was drafted by Lenin, to which he had attached a whole series of peasant mandates published by the Executive Committee of the Peasants Soviets. This Decree had taken over all forests, waters and subsoil minerals in the name of the state. While the intention was to organise planned tapping of resources, the civil war that broke out from the early months of 1918 and the loss of a number of vital resources to the Whites meant that short-term measures predominated economic policies and actions. State-led plunder rather than planning underlay the so-called “war communism”.
Responding to the chaos, the council of Peoples’ Commissars, or Sovnarkom, issued a law On Forests. According to the Soviet historian Kravchuk, Lenin, who presided over the making of this law, was keenly aware of the need to protect the forests and referred to problems associated with deforestation after the emancipation of 1861, recorded by the economist Shcherbina. The law provided for the creation of a Central Administration of the Forests of the Republic entrusted with the responsibility of planned reforestation and sustained yield.
But by late 1918, fluctuating fortunes in the Civil War made all this little more than a promise for the future. The economy was controlled by the Supreme Council of the National Economy (VSNKh or Vesenkha), in order to centralise all resources for the moment. It was with the end of the civil war and the introduction of the New Economic Policy that the idea of a gradual progress to a planned economy returned. In 1923, a new Forest Code was adopted. Clearing of forests was restricted and made subject to clearance from the Provincial Land Administrations or the Central Forest Administration (in cases where the area under forests was below 35 per cent). The Act also provided for a category of protected forests including zapovedniki.
Running a vast country took more administrative complexity than the bare bones of theory, even when augmented by the experience of the Paris commune and the pre-October soviets, had suggested. Different Commissariats had to be created. And they had overlapping responsibilities. Initially, it was the commissariat of Agriculture that took most conservation and resource utilisation decisions. But in 1919, Nikolai Podiapolskii met both Lunacharskii and Lenin. This resulted in a shift. An agronomist and a deputy commissar of the Astrakhan branch of Narkompros, Podiapolskii wanted support for the creation of a zapovednik in the Volga delta. For this, he met Lunacharskii, his direct head.
Strongly supportive of what he heard, Lunacharskii in turn wrote a letter of introduction to Lenin. Having heard out Podiapolskii, Lenin told him that conservation had to be a priority for the entire republic, and requested him to draft a general decree on conservation. Within a day, a draft had been made, seen by Lenin, and returned via the Secretary of Vesenkha, Dr. V. D. Bonch-Bruevich. Lenin also suggested that the Executive Committee of Narkompos should give the final approval. He did so, according to an eye-witness, because the Commissariat was not involved with the exploitation of natural resources, and could examine ecological problems without a built-in bias.
Meanwhile, F. F. Shillinger, a game specialist, campaigned hard for a law to restrict hunting, so that moose and wild goats could be preserved. In 1920, his efforts also bore fruit, in a law On Hunting, drafted by Narkomzem. With this, however, was institutionalised a bifurcation of Soviet conservation for the next decade and a little beyond.
Between 1920 and 1922, a Department under Narkompros, the State Committee for the Protection of Monuments of Nature became the dominant institution for the conservation affairs.
Things changed with the end of the Civil War and the coming of the New Economic Policy. A forced policy of top-down state control had not been the original intention of the Bolsheviks, though once this was practised, and once a bureaucratic control grew up, many people clearly never gave up a hankering for a return to this. But the NEP meant a considerable restoration of the market, private property, and trading. Fiscal constraints now became much more evident. Between 1921 and 1923, budget cuts hit various social sectors. Working class responses included strikes, to which the growing party bureaucracy sought to respond in late 1923 by demanding that party members should inform about strikers. With this kind of situation, it was not surprising that budget cuts almost led to the elimination of the State Committee, as well as the Main Administration for Scientific Institutions, or Glavnauka.
Between 1923 and 1927, several zapovedniki were nonetheless set up. The State Planning Board, or Gosplan, issued its first set of control figures for the economy. This was followed by the first serious discussions about moving to a planned economy. It was perceived by many people, that non-sustainable growth was bad for the economy as well. By 1927, the moose, the sea otter, the European bison, the European red deer, the wolverine, wild cat, and other fauna were either seriously threatened or even extinct (the bison was recreated from specimens in zoos). But approaches differed. By 1928, both the Commissariat of Trade and the Commissariat of Agriculture were viewing the salvation of hunting in the form of a technological fix. They wanted to save animals in order to hunt them in an orderly manner. To do so, they advocated ranch breeding of commercial varieties, and the acclimatization of new species to supplement the indigenous, exhausted ones. In 1928, S.A. Sidorov, Curator of the aquarium at the Moscow Zoo, published a detailed account of the disappearance of species.
It would be totally erroneous to think, though, that only governmental agencies were at work. A number of societies or associations came up. They concluded the All-Russian society for Conservation (VOOP), the Central Bureau for the Study of Local Lore (TsBK) and others. The TsBK was in fact a mass organisation, with 2270 branches in the late 1920s, and nearly 60,000 members. Many of the activists of TsBK were also important figures in official conservationist agencies.
In the 1920s, the idea that building a communist society meant the creation of a society of associated producers was not yet dead. So it was not yet a straightforward state-directed, bureaucratic operation. Many local attempts at conservation developed. The All Russian Society for Conservation had a central organ, the Okhrana Prirody, which combined theoretical work and research reports with a wide range of more popular essays.
In 1925, the government, then partly directed by Alexei Rykov and Nikolai Bukharin, created a new committee for nature protection, the Gostkomitet. It had certain weaknesses. Placed under Glavnauka, it was thus in the third rung of the hierarchy (a Glav was a main committee or Administration under a Commissariat), and as such it could not approach the Council of Peoples’ commissars, but had to move through the Narkompros. But being under Narkompros, it had the support of Lunacharskii. Its leading body had a majority from Glavnauka, in other words it was dominated by scientists, and it had considerable funding.
In 1925-28, research in the zapovedniki were important. From 1923, ecologically representative cases were being selected. Two sets of zapovedniki existed – those selected by Narkompros and those selected by Narkomzem. Overall they covered about 1.5 million hectares of land. By 1929 they had expanded to nearly 4 million hectares.
Apart from these, there were other types of work being done regarding the ecology. In this paper, it will not be possible to discuss issues of public health and urban environment. But important strides were taken there as well. Let me make two crucial points in passing, precisely because I will not be discussing the issues at length. Anti-communist historiography simplifies the picture, and talks only about the exploitation of the peasants and the burdens on the workers. I do not dispute either.
However, it is worth noting that urban Russia in its Stalinist industrialization phase did not have the slums associated with Britain in the 19th century, or India, or much of Latin America, in the twentieth. And it is also worth noting that public health was improved significantly. It is a hoax, to compare the early Soviet Union with developed capitalism. Trotsky, hardly a friend of Stalin and Stalinism, had argued that Russia in 1917 stood halfway between the developed countries and the semi-colonial and colonial world, and had suggested in his History of the Russian Revolution that but for the October Revolution Russia would have slipped closer, after World War I, to semi-colonial status. From that position, the soviet industrialization, with all its flaws, and its bureaucratic bosses who rode on the backs of workers and peasants, did create a much improved urban environment. To ignore the consequences of bureaucratic planning, of Chernobyl, of what critics have called ecocide, would be to whitewash Stalinism. But to ignore the positive developments is also unacceptable.
Leaving that aside, though, other issues in ecology should also be briefly mentioned. V.I. Vernadsky achieved international renown both for his analysis of the biosphere, and as the founder of the science of geochemistry. In 1926 he published The Biosphere. He has been called the first person in history to come to grips with the real implications of the fact that the Earth is a self-contained sphere.
N.I. Vavilov, President of the Lenin Agricultural Academy, determined that there were a number of centres of plant diversity in the underdeveloped countries. Unlike the romantic conservationists, Vavilov called for a dialectical stance. The centres of plant diversity were, for him, the products of human culture. For decades now, Western agribusiness has recognised this, and has been returning to these genetic reservoirs, leading to a struggle for control.
Russian agronomists had been treating the forest as a community for a considerable period. But their focus had been on plants, with the assumption that the fauna had a lesser role to play. In the 1920s, this perspective changed, and Soviet ecologists came to appreciate much more the role of fauna in structuring the historical development of such communities in nature. This did not mean there was a total agreement. There were scholars who attempted faulty analogies between human societies and what they called plant societies. Others avoided this line of thinking. Important questions were asked and answers were sought, such as, how far these communities were closed systems, whether there were spaces for new entrants, whether they could be grouped into higher taxonomic units, etc.
The growing interest in such issues was reflected in the growth of the study of ecology in an institutionalized structure. Ecology courses began to be offered, in places as diverse as Tashkent, Moscow, Leningrad, and Kharkov. G.A. Kozhevnikov argued that building game farms was a very inadequate response to the threat to nature posed by industrial society. In Okhrana Prirody, he wrote an article, stressing that research in the zapovedniki should look at revealing the laws of the evolution of the organic world. In other words, at a time when the concepts were still in their early stages, he was moving towards the possibility of a synthesis of ecology, genetics, and evolutionary theory. And he warned categorically that one should not expect quick results.
He did try to explain that a stress on basic science research did not imply ignoring material needs. He was not a romantic, and his writings sought to present common grounds between materialist scientists and Marxists.  By the close of the 1920s, the zapovedniki were being used for the study of ecological communities. A crucial development took place in Askania-Nova in the Ukrainian steppes.
Askania originated as a huge land grant from Tsar Nicholas I to the duke of Anhalt-Cothen in 1828. Its last private owner was Fal’ts-Fein. At that stage it had sheep breeding, a zoo, an acclimatization park, and a part where the steppe was fenced off from human encroachment. But located close to Crimea, it faced terrible devastations during the Civil War. It was after the final Red victory that Dmitri Manuilskii, Commissar for Agriculture in the Ukraine, took over charge of the reserve. A Ukrainian decree of 1921 gave Askania a wide range of responsibilities.
Tension developed in the early stages between the economic imperatives indicated, and the scientific research orientation of a community of scientists. The proposal to turn Askania into a simple Sovkhoz (state farm) was contested openly by Kozhevnikov and other scientists. While this was blocked, especially after the Ukrainian commissariat for Education played a role similar to the Russian Narkompros, the tension did not go away, because the production sector retained a large amount of land, and tried to increase profits in a big way.
Between 1924 and 1928, the battle went on. In 1928, M. F. Ivanov proposed a reorganization that would increase the power and the extent of land under control of the Production Sector. In part, Ivanov did what would become popular in later years – he attacked the scientists (though he himself was a Professor) as elite people and appealed to the “people”. The other scientists hit back through a vigorous campaign. They showed that Ivanov was painting a false picture of the ecologists as people who wanted to turn the whole of Askania into a zapovednik. The most prominent role was played by Stanchinskii.  The Ukrainian Sovnarkom provided considerable support to the Scientific Sector, as well as putting it directly on the Ukrainian central budget.
Stanchinskii wanted to use Askania to develop materialist genetics. He was also interested in studying an eco-system as a whole, tracing the production of the primary biological producers of a given area through all their biotic pathways.  V. I. Vernadsky had outlined the chemical cycling and energy flows, or the transformation between matter and energy, carried out by living and non-living matter in complex exchanges. Taking off from that, Stanchinskii wanted to construct the dynamics of an ecosystem and relate it to mathematically expressed regularities. In contemporary terms, he was developing ecological energetic.
Invoking the Second Law of Thermodynamics, he argued that as one climbed up the rung on a ladder in which the living entities are placed, there would be less energy available. This was why there could be relatively few of the large predators. In order to study the entire problem, he set out to determine mathematically the energetic role of each species. He hoped that a successful study would enable humans to perform their economic activities in harmony with the ecosystem. This was to usher in a research programme that was unique for its time, not just in the USSR, but anywhere in the world. By contrast, reserves created by the Narkomzem of the RSFSR did very limited research, looking at the reserves as a space for the replenishment of decreasing stock.
The All Russian Conservation Congress itself deserves a full paper. So here, one can only sketch the bare bones. 124 delegates with voting rights were present, with 64 coming from the provinces and the rest, i.e., just under half, from Moscow and Leningrad. The delegates were in the main people with higher education, and were in their majority non-party. It is significant that the field of ecology was sufficiently moved from core political conflicts, so that while bureaucratic strangulation was ending debates in many other fields, this Congress saw free debates.
Some of the delegates, like M. P. Potemkin, Deputy President of Gostkomitet , warned that the Five Year Plan had set targets that threatened the ecology seriously. Seals, sea otters, whales, were being threatened, said Potemkin. A Congress resolution talked about the progressive decline of game and called for a game census, a game biology institute, and greater powers to Gostkomitet  Another debate was over logging and the clearing up of the steppes. It was revealed that the forest of an entire province was being “planned” into `abolition. But despite their stiff opposition, the ecologists were also compelled to shift the grounds and the discourse through which they articulated their concerns. Now they could no longer speak only of the benefits of pure scientific research. In the debate over Askania-Nova, Stanchinskii stressed that while the zapovedniki were scientific institutions, the rationale for them was economic.
Within a short while, the situation changed dramatically. As the targets of the Plan were raised and a crash course collectivization began, the ecologists faced an uncertain future. Okhrana prirody in 1930 had an article that cautioned about the ecological dangers of rapid and full-scale collectivization. Another article argued that increasing mechanization of agriculture following collectivization would lead to standardized and homogenized landscape, and warned that unless protective measures were taken promptly, there would be great destruction of life of various kind.
The early 1930s were not a good period for such critical voices and viewpoints. This was the period when the so-called cultural revolution was being launched. In the life sciences, there were a considerable number of attacks. Among scientists and philosophers of Marxist inclination, debates had been going on for a considerable period. Two major wings had formed – the Mechanists and the Deborinists.. The Deborinists were winning by the late 1920s. But a much cruder form of “Marxist”-scientist layer began forming from this point. Two figures who would play a devastating role in all aspects of Soviet biology were Trofim Denisovich Lysenko and Isai Izrailovich Prezent.
Most notorious for the attacks on genetics, Prezent and Lysenko had also attacked the ecologists. It is due to the general lack of awareness about the significance of ecology that this has been discussed much less than the attacks on people like Vavilov.
Present was a graduate of a three-year programme of the Faculty of Social Sciences who went on to specialize in the philosophy of the life sciences. Initially he had been a Deborinist, and had attacked neo-Lamarckianism. He had even received an initial backing from Vavilov, which however ended as Vavilov found him unsuitable for productive work. Prezent left the All-Union Institute of Plant Breeding, led by Vavilov, and attempted to create his own power base. By 1931, he had founded and was leading the kafedra [sub-department] of the Dialectics of Nature and Evolutionary Science at the Leningrad State University. Also, by 1930, he had become aware that Stalin was about to take on the Deborinists and had jumped away from them. In order to ideologically control scientists, measures were taken from top, and these were supplemented by drumming up a spurious “proletarian” anti-scientist (“anti bourgeois scientist”) campaign.
All plans for scientific work and educational programs were required to be presented to the Association of Natural Science of the Communist Academy. The previous organizer of the worker’s militia in Germany, E. Kol’man, became the Association’s Director in 1931. Kol’man was even ready to rework Newton’s Laws, and Boyle’s Law from the perspective of diamat. He asserted that biology in the USSR was swarming with saboteurs; geneticists were supporting eugenic measures, zoologists and botanists were resisting the creation of giant Soviet farms, ichthyologists were unnecessarily lowering the capacity of ponds and rivers.
At one level, a close study of names involved in the conflicts show that the fight for positions, and for gaining support for one’s position, led a number of “bourgeois” scientists to also throw in their lot with the campaigners for diamat. In other words, the struggle for position, for privilege, were parts of an ideological (in the sense that Marx condemned ideology) construction of a spurious Marxist biology. But Prezent brought in a degree of single-mindedness that won him greater backing than most others. For he was the campaigner, who, later in alliance with Lysenko as well, took up the position that readiness to blindly follow Stalin’s politics, and to alter one’s views accordingly, had become the single criterion of truth in biology.
The rise of Stalin had been sealed politically by the late 1920s. But as it had been argued – including by Trotsky in exile – there was a potential for opposition till the early 1930s. The publication of the Ryutin document shows that it had a good bit of support even at the leadership level. Between 1932 and 1937-38, all oppositional voices were smashed and vast numbers perished. Other Bolshevik leaders of the first generation had different views on Marxist philosophy and its relationship with science. But Trotsky and Bukharin, two of the intellectual leaders, had both supported the autonomy of distinct levels or spheres of knowledge. The rise of Diamat saw an end to that. And the rise of Stalin’s absolute power meant that strategists like Prezent were going to get the better of scholars like Vavilov and Stanchinskii (both would fall victims).
As the Five-Year Plan proceeded, over-optimistic demands for upward revision of targets increased. In the newly created Western Oblast, which included Smolensk province, for example, the target of turning the oblast into one vast granary meant disastrous deforestation. The collapse of the world capitalist economy, rather than the dawn of sense among Soviet planners, saved some of the forests, as the demand for timber went down. Yet this was also the time when ecologists were producing some of their major works. Weiner mentions that in 1931, Daniil Nikolaevich Kashkarov published his Environment and Community.
In 1933, the first All-Union Conservation Congress was held. By this time, the situation had changed much, compared to the All-Russian Congress a few years earlier. Of the 92 voting delegates to the congress, only just over one third had higher education, compared to three quarters for the 1929 Congress. Nearly two-fifths were party members this time. The major debate in this congress was over the fate of the zapovedniki. P. Smidovich, the Old Bolshevik who had long been associated with the ecologists, gave a guarded speech defending basic research. But a huge attack was launched by those who demanded that the needs of applied approach must dictate the work of the zapovedniki. A massive struggle had in fact opened up over the fate of Askania-Nova, outside the Conference. Stanchinskii, the moving spirit of Askania-Nova, was accused of many sins, one of which was the mathematisation of biology. But the core struggle was over whether Askania should be converted into a stock-breeding station or retained as an ecological research place.
One of the issues in conflict was, for Prezent, ecological research meant large-scale acclimatization of exotic life forms. Stanchinskii used sophisticated dialectical explanations to argue that what was desired was a search for optimal conditions, not a huge growth that would lead to exotics becoming pests. This was clearly not what the authorities wanted to hear. By this date the campaign was one that did not seek at all to convince the ecologists, but to convince the party-state authorities that the ecologists were bourgeois scientists obstructing the growth of socialism and true socialist science. In 1934, Stanchinskii was arrested. I have seen only one study of the archives after they were opened to scholars, so the precise role of Lysenko and Prezent are still a little uncertain.
However, Sergei Medvedev, colleague of Stanchinskii who was also arrested, wrote to Semenov-tian-shanskii about the role of Prezent. Stanchinskii’s confession under torture included the comments: “the theoretical problems of ecology and biocenology that I posited were completely removed from economic exigencies …”, He said that his wrecking activities included fencing off 5400 hectares of the steppe.
Why did Prezent and Lysenko adopt their strategy? At this remove it is difficult to provide a full explanation. I have argued however that they represented a social layer seeking to capture positions. It seems that neither of them had much knowledge of mathematics. So they could not police ecology as long as it was mathematically modelled. This included other works, such as Alpatov’s work on the role of densities in the regulation of animal population. This might also explain one aspect of their attack on genetics.
The career of Stanchinskii, however, exemplifies not only the problems with Stalinism but also the positive developments in the early Soviet Union. The high status given to science, and to ecology within science, particularly when formulated in terms of energetic, put Soviet ecology in the 1920s and all the way till 1932-3 miles and years ahead of its counterparts anywhere else. Indeed, his career would not have been possible without the opportunities provided by the expansion of education and the opening of so many science research institutions.
 Douglas R. Weiner, Models of Nature. University of Pittsburgh Press, Pittsburgh, Pa. 2000.
 An interesting aside – Weiner is unhappy with their position. He would like to speculate that even though their opposition was based on ecological issues, this was really protective colouration for a struggle against collectivization and proletarianization. This is at par with his view that though Lenin supported ecological conservation, he was “really” a proponent of the “wise-use” or utilitarian position.
 The present writer makes a clear distinction between revolutionary democratic socialism, with which Lenin was associated, though in the period 1918-1922, it is possible to show him, or other Bolsheviks, making errors under tremendous pressures; and Stalinism. See on this, for my own positions, Kunal Chattopadhyay, The Marxism of Leon Trotsky, Kolkata, Progressive Publishers, 2006, especially chapter 7. See also Leon Trotsky, “Stalinism and Bolshevism,” in Kunal Chattopadhyay and Paul Le Blanc (Eds), Leon Trotsky: Writings in Exile, Pluto Press, London. 2012, 67-83. For later Marxist discussions of the Soviet bureaucracy, see Ernest Mandel, Power and Money: A Marxist Theory of Bureaucracy, Verso, London 1992.. For a historical study looking at the transformation from Bolshevism to Stalinism see Soma Marik (note 12).
 See Kunal Chattopadhyay, ‘Trotsky, Lenin, and the Stalinist General Line’,http://kunal-radicalblogger.blogspot.in/2006/09/trotsky-lenin-and-stalinist-general.html. This was written for a Greek Marxist periodical, and the English exists only in the form of the above mentioned blog.
 Iu. P. Kravchuk, ‘V. I. Lenin o lesakh’, Okhrana prirody Moldavii, 1970, no.8, p.14.
 Weiner p. 69 uses a language that suggests he is skeptical about the sincerity of Kozhevnikov’s use of materialist philosophy. This is part of his recurrent sub-text, where he tries to flatten as much as possible the differences between Stalinism, and Marxism on one hand; and on the other hand present as much gap as possible between the scientists and Marxism. Given the subsequent debasement of Marxism, its transformation into a state ideology of a bureaucratic elite, and the ecological disasters of the Soviet Union, this is something that many readers will accept. But it suggests that the scientists of the 1920s were hypocrites. Even though stated in a subdued way, this ends up, surprisingly, accepting or tacitly supporting the Stalinist attack on the scientists.
 Apart from Weiner, detailed biographical discussions on Stanchinskii will be found in a Russian language study, N.T. Nechaeva and V.S. Shishkin, “V poiskakh estestvennykh system (nauchloe nasledie V. V. Stanchinskogo) [ In search of natural systems (the scientific heritage of V. V. Stanchinskii), Voprosy Istorii Estestvoz-naniya I Tekhniki 2 (1994): 87-97.
 Biotic components are living things that shape an ecosystem. Abiotic components are the non-living components of an organism’s environment, such as temperature, light, moisture, air currents, The biotic components include autotrophs (or producers), heterotrophs or consumers, and detrivores or decomposers. Plants, animals and fungi/bacteria represent the three categories.
 In 1927, the Fifteenth Congress of the CPSU (B) expelled the United Opposition. Soon after, Stalin rounded on Bukharin, Rykov and Tomsky, and by 1929 they were routed.
 Trudy Pervogo Vserossiiskogo. s”ezda po okhrane prirody, Moscow, 19309. Pp192-3.
 [[Kunal Chattopadhyay, Class Struggle among the Molecules: The Rise of “Proletarian Science”; Michael Lowy, ‘Stalinist Ideology and Science’, in Tariq Ali (Ed), The Stalinist Legacy, Harmondsworth, Penguin, 1984.
 For the purges, see Robert Conquest, The Great Terror: A Reassessment. Oxford University press, Oxford, New York, etc. 2008. This is a reissue of his earlier study, with an introduction based on the archival material from the former USSR.
 On this see further David Joravsky, The Lysenko Affair, Cambridge, Harvard University Press, 1970.
 The bureaucratic system was so extensive in Stalinist USSR that even minor figures had pages and pages of documents attached for the charges, the “confessions” extracted if any, the ‘confrontations’ and denunciations, etc. This is explained at length by Conquest in the introduction to the 2008 edition of his book.
 See Vladimir E Boreiko, Istoriia zapovednogo dela v Ukraine, Seriia: Istoriia okhrany prirody no.2, Kiev: Kievskii ekologo-kulturnyi tsentr and Tsentr okhrany dikoi prirody SoES, 1995, pp. 82-83.
 Ibid p. 84, citing the Ukrainian KGB archives.
 Maxim Gorky, Belomor, 1936, cited in Chris Williams, Ecology and Socialism, Chicago, Haymarket, 2010, p.187 .

matches: V. V. V. V. V. V.


The Climate Investigations Center has sued the U.S. Department of Energy to force the release of records pertaining to Southern Company’s “clean coal” power plant in Kemper County, Mississippi.
In a lawsuit filed late last week in federal District Court in Washington, D.C., CIC noted that it has waited almost a year for the release of records spanning a period in the late nineties through 2010 during which the technology deployed at Kemper was being developed and the plant was planned and construction took place.
CIC’s Freedom of Information Act request notes that Southern Company subsidiaries Mississippi Power and Southern Company Services were granted a total of $293 million in DOE funds, as well as hundreds of millions in tax credits from the Internal Revenue Service, to defray the enormous cost of what eventually became a 582 megawatt power facility.
DOE originally agreed to fund a coal project in Orlando, Florida that was about half the size of Kemper. While the Orlando facility was to employ a first-of-its-kind technology that would burn coal more cleanly than older plants, it was not designed to capture carbon dioxide from the plant’s waste stream.
Kemper theoretically will remove 65 percent of the carbon dioxide from the waste stream, compress it, and send it through a pipeline for injection into old oil fields to boost production – a process called Enhanced Oil Recovery.
However, Kemper’s gasifier, which is supposed to turn cheap, low-grade lignite coal into synthetic gas that would then be burned to produce electricity, failed to operate during tests that began this past fall.
On February 2nd, Mississippi Power notified the Securities and Exchange Commission that after some six years of construction and five months of tests, the gasifier still doesn’t work, and the company now doesn’t expect the plant to come on line as a bona-fide coal-burning CCS facility until the third quarter of 2016.
The filing also acknowledged that the additional delay will add $142 million to the project’s costs, bringing its total price tag to $6.64 billion.
CIC hopes its FOIA to the Department of Energy will shed more light on a project that seems to have gone terribly wrong, producing double digit increases in electricity rates and, so far, not actually burning any coal – cleanly or otherwise. The plant’s turbines, which finally began generating electricity in the summer of 2015, are running on natural gas.
Perhaps that is temporary. But if it isn’t, Kemper will be first of its kind in another way – the most expensive natural gas plant per kilowatt ever built.
The plant’s chequered history raises urgent questions about the federal government’s substantial investment in carbon capture and sequestration technology, which has so far failed everywhere it’s been tried, and the wisdom of funding projects like Kemper and Edwardsport, in Illinois, that haven’t worked.
The CIC’s FOIA seeks to illuminate why DOE handed Southern Company such a large sum for such a speculative technology, and why it approved the relocation of the plant from the populous area around Orlando to the poorest county in Mississippi where it would be part of a service territory containing only 186,000 ratepayers. Those ratepayers will have to foot much of the bill for a $6.6 billion coal plant – a sum larger than the 2015 budget for the entire state.
More details as we hear back from the Department of Energy.
Energy Offices of Hearing and Appeals.
and 28 U.S.C. § 1331.
journalist Dan Zegart, regularly brief reporters and policy-makers on their research findings.
fulfilling the mission of CIC.
by the Executive Branch of the United States, and is an agency within the meaning of FOIA.
Plaintiff seeks access through FOIA.
media, policy-makers, or the public with information that is the subject of the request.
one of nine exemptions contained within the statute. 5 U.S.C. §§ 552(a), (b).
well as instructions for appeal.
the records requested. 5 U.S.C. § 552(a)(4)(B).
if Plaintiff substantially prevails in this action. 5 U.S.C. § 522(a)(4)(E).
DOE, FE, and NETL Possess Information Responsive to CIC’s FOIA Request.
companies based on certain criteria under the Clean Coal Power Initiative.
demonstrate advances in coal gasification systems as part of phase two of the CCPI program.
activities in Orlando were canceled.
which had been spent in Orlando. This left another $270 million for costs in Kemper County.
proposed facility as well as moving the demonstration project from Florida to Mississippi.
a wholly-owned subsidiary of Southern Company, and Kellogg, Brown and Root (KBR).
received from the modified Cooperative Agreement.
the modification of the original Cooperative Agreement between DOE and Southern Company.
DOE’s National Energy Technology Laboratory or the Power Systems Development Facility . . .
Rogers, Lanny Griffith, and Bob Wood.
offered as a timetable for further production.
responsive documents made available as they were collected by DOE.
24. On August 6, 2015 NETL Chief Counsel provided a second partial response.
identifying records for discretionary release.
for the application of those exemption and the redactions made.
and for the decision not to release records requested in the initial March 29, 2015 FOIA request.
Information Services, Department of Energy sent a letter to Mr. Zegart stating that part of Mr.
determination letter has been received from FE.
enclosures, some of which had been redacted purportedly under FOIA Exemption 4 and 6.
Additionally, NETL stated that it was continuing to collect responsive documents.
DOE Office of Hearings and Appeals Wrongful Application of FOIA Exemptions.
FOIA within the time specified by law.
exemption applied, or release the information in the Cooperative Agreement discussed on appeal.
and Southern Company participants under FOIA Exemption 6.
since expired, and Defendant’s actions in withholding records is in violation of 5 U.S.C. § 552.
36. Paragraphs 1-35 above are incorporated by references as if set forth fully herein.
administrative remedies with respect to Plaintiff’s Freedom of Information Act request.
to FOIA requests within 20 working days. 5 U.S.C. § 552(a)(6)(A)(i).
for the records . . .” under 5 U.S.C. § 552(a)(3)(C).
person making the request.” 5 U.S.C. § 552 (a)(6)(F). Defendants have failed in this regard.
and national policy takes shape.
CIC’s FOIA request and appeal.
U.S.C. § 522(b)(4) (Exemption 4).
under 5 U.S.C. § 522(b)(5) (Exemption 5).
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 522(b)(6).
may be withheld under FOIA Exemptions 4, 5, and 6.
responsive to Plaintiffs’ FOIA request violates 5 U.S.C. § 552(a)(3)(A).
the Defendants illegally failed to respond to Plaintiff’s FOIA request.
under a claim of exemption.
pursuant to 5 U.S.C. §552(a)(4)(E).
5) Provide such other and further relief as the Court deems just and proper.


§ 18-29-702.1 Above-ground sanitary drainage and vent pipe.
Above-ground soil, waste and vent pipe shall conform to the respective standard listed in Table § 18-29-702.1. The use of polyvinyl chloride (PVC) plastic pipe shall be limited to buildings three stories or less in height intended for family occupancy. The use of DWV copper tubing shall not be permitted in any structure or plumbing system.
§ 18-29-702.2 Underground building drainage and vent pipe.
Underground building sanitary drainage and vent pipe shall conform to the respective standard listed in Table § 18-29-702.2 except that polyvinyl chloride (PVC) shall not be allowed.
§ 18-29-702.3 Building sewer pipe.
Building sewer pipe shall conform to the respective standard listed in Table § 18-29-702.3 except that polyvinyl chloride (PVC) shall not be allowed for underground building and vent pipe except for subsurface soil drainage. The use of cast-iron pipe will be allowed in the public way.
Pipe fittings shall be approved for installation with the piping material installed and shall conform to the respective pipe standard listed in Table § 18-29-702.4.
§ 18-29-702.5 Chemical waste system.
A chemical waste system shall be completely separated from the sanitary drainage system. The chemical waste shall be treated in accordance with Section § 18-29-803.2 before discharging to the sanitary drainage system. Separate drainage systems for chemical wastes and vent pipes shall be of an approved material that is resistant to corrosion and degradation for the concentrations of chemicals involved.
All glass pipe shall be of corrosion resistant pre- stressed low expansion borosilicate glass. Couplings shall be made with gasketing of equal corrosion resistant characteristics.
Padded hangers for horizontal runs shall be used and be properly supported. All riser clamps for vertical line shall be padded with resilient rubber or equally resilient material.
Wall thickness of the glass pipe and fitting shall follow the specifications in Table § 18-29-702.5.1.
The pipe to be buried shall be of heavy schedule. Below grade compression couplings shall have an outer shell of A1SI 300 series stainless steel or material of equal corrosion resistance. All piping and fittings shall be free of scratches. Underground piping, fittings and compression couplings shall be protected from direct contact with the earth or backfill material.
§ 18-29-702.6 Safe pan material and construction.
All safe pan material and construction shall meet the requirements set forth in Sections § 18-29-702.6.1 through§ 18-29-702.6.2.
PVC safe pans or liners shall be 30 ml or 40 ml.
All safe pans shall be constructed with preformed dam corners, shall be watertight, adequately reinforced and provided with a drain opening designed to make a watertight joint. PVC safe pans and liners shall be solvent welded together with the proper cement.


Failure to file FinCEN form 114 (the FBAR) can be far more severe if the failure to file is found to be willful. A finding of a willful failure to file carries a penalty of up to the greater of $100,000 or 50% of the account balance. This penalty is in addition to the tax, interest, and an accuracy penalty of between 20% and 40%. The test for willfulness is whether there was a voluntary, intentional violation of a known legal duty. The IRS has the burden of proof, but in a FBAR case, the only thing the prosecution must show is that the person knew they had obligation to report. If there is a finding of willfulness, there is a strong potential criminal prosecution of the case. If the failure to file is found to be non-willful, the penalty is potentially $10,000. Prison time is still possible for the non-willful taxpayer, but unlikely.
Failure to file an income tax return - IRC § 7203 – not filing a required return in a timely manner. A person who fails to file a tax return is subject to a prison term of up to one year and a fine of up to $100,000.
Filing a false return - IRC § 7206(1) – filing a return containing false information. Filing a false return subjects a person to a prison term of up to three years and a fine of up to $250,000.
Tax evasion - IRC §7201 – willfully attempting in any manner to evade paying tax. A person convicted of tax evasion is subject to a prison term of up to five years and a fine of up to $250,000.
Tax perjury - IRC §7206(1) – willfully signing false returns under penalty of perjury. A person convicted of perjury is subject to a prison term of up to five years and a fine of up to $250,000.
Tax obstruction - IRC §7212(a) – corruptly impairing the lawful function of the IRS. A person convicted of obstruction of justice is subject to a prison term of up to and not more than 10 years or a fine of up to $250,000.
Conspiracy - 18 U.S.C. §371 – conspiring to commit one of the above crimes or impairing the IRS from enforcement. A person convicted of conspiracy to commit one of the above offenses or to defraud the United States is subject to a prison term of not more than five years and a fine of up to $250,000.
Willfully failing to file an FBAR - 31 U.S.C. § 5322 – Knowing of the obligation to file the FBAR and not doing so. Failing to file an FBAR subjects a person to a prison term of up to ten years and criminal penalties of up to $500,000.
Willfully filing a false FBAR - 31 U.S.C. § 5322 – Filing a FBAR with inaccurate information. Failing to file an FBAR subjects a person to a prison term of up to ten years and criminal penalties of up to $500,000.
A “statute of limitations” is a law which defines the time within which a legal action may be brought against a person or entity for an act or omission. Once that period of time has run out it is said that the statute of limitations has “tolled” which means you are exempt from having a legal action, civil or criminal filed against you. With regard to tax matters, the statute of limitations is the time period that the government can come back against you criminally or civilly regarding issues concerning your tax returns. For example, if you fail to file your 1040 or 1040A, neither the three-year statute of limitations on assessment of tax and penalties, nor the 10-year statute of limitations on collection of such assessments, starts to run until you file your tax returns.
With respect to FBAR penalties, if you fail to file Form 8938 or fail to report a specified foreign financial asset that you are required to report, the statute of limitations for the tax year may remain open for all or a part of your income tax return until 3 years after the date on which you actually file Form 8938. In other words, if you never file the delinquent return, the statute of limitations never starts to run. This period can be extended if you do not include in your gross income an amount relating to one or more specified foreign financial assets. If the amount you omit is more than $5,000, any tax you owe for the tax year can be assessed at any time within 6 years after you filed your return.
If a completed form 3520 is not filed by the due date, including extensions, the time for assessment of any tax imposed with respect to any event or period to which the information required to be reported in Parts I through III of such Form 3520 relates, will not expire before the third anniversary of the date on which the required information is reported. So, again if you never file the delinquent return the statute of limitations does not start to run.
Have more questions regarding FBAR penalties? Please call our office today.