Discretion and the criminalization of environmental law

Duke Environmental Law and Policy Forum

Volumn 15, Issue 1, 2004, Pages 1-64

  Babbitt, Charles J ^a   Cory, Dennis C ^a   Kruchek, Beth L ^b  

^a UNIVERSITY OF ARIZONA   (United States)

^b Division 2 ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION;

EID: 17244364081     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (428)

1. See generally Burton Atkins & Mark Pogrebin, Discretionary Decision-Making and the Administration of Justice, in The Invisible Justice System (Burton Atkins ed., 1982).
2. Arthur Rossett, Discretion, Severity, and Legality in Criminal Justice, in The Invisible Justice System 16, 18 (Burton Atkins ed., 1982).
3. Burton Atkins & Mark Pogrebin, supra note 1, at 3.
4. See generally Jane Barrett, Sentencing Environmental Crimes under the United States Sentencing Guidelines: A Sentencing Lottery, 22 Envtl. L. 1421 (1992).
5. Keith A. Onsdorff, The Double Standard of Prosecutorial Discretion in Environmental Cases: Why Adopting Objective Standards is Crucial to Affirming the Rule of Law, 158 N.J. L.J. 255, 256 (1999).
6. David A. Barker put it this way: Overly broad statutes do not just ease the burden of proof at trial, they increase the chance that prosecutors will get convictions while avoiding trial altogether. As Professor Stuntz explains, this occurs for two reasons. First, the ease of proof at trial will alter the defendant's plea-bargaining calculus. Without access to highly litigable issues such as subjective mental state as to a complicated statute, or the reasonableness of reliance on advice of counsel, both the prospects for government victory go up, and the expected length and cost of the trial go down, further eroding the defendant's bargaining position.
7. David A. Barker, Environmental Crimes, Prosecutorial Discretion, and the Civil/Criminal Line, 88 Va. L. Rev. 1387, 1412 (2002).
8. Richard Caplan, U.S. Public Interest Research Group, Permit To Pollute: How The Government's Lax Enforcement of The Clean Water Act is Poisoning Our Waters (2002).
9. Keith A. Onsdorff, supra note 5, at 257.
10. In general, legislatures and courts rarely have taken steps to interfere with the prosecutorial exercise of discretion in the charging function; as a result, particularly in regard to review autonomy, prosecutors act with nearly unfettered independence. Many justifications have been articulated for this maximization of the prosecutor's decision-making. Those advanced or identified by courts, other public officials, and commentators can be grouped in four categories: constitutional separation of powers theories, grounded in the commonly-held view that the prosecutorial function lies in the executive branch of government; deference to prosecutorial expertise; administrative necessity; and individualized justice. According to the proponents of broad discretion, the positive public benefits derived from it dictate that the most appropriate mechanism for monitoring and curbing abuse of the charging function is the electoral process, not legal regulation.
11. Peter Krug, Prosecutorial Discretion and its Limits, 50 Am. J. Comp. L. 643, 645 (2002).
12. For the ethical rules of federal prosecutors, see Citizens Protection Act of 1998, 28 U.S.C. § 530(B) (2000).
13. We analyze both the EPA's (administrative and investigative) discretion and DOJ's (truly "prosecutorial") discretion together as "prosecutorial discretion."
14. In determining whether to charge and what to charge, the prosecutor must assess whether a particular set of facts fits within the criminal code, weighing the strengths of the case and determining whether the alleged perpetrator is guilty or innocent. Even when the circumstances point to guilt, prosecutors must consider the sufficiency of the evidence to sustain a conviction. And even if the evidence proves sufficient, the determination must be made whether criminal sanctions are appropriate or criminal prosecution is in the community's best interest. Shelby A.?? Dickerson Moore, Questioning the Autonomy of Prosecutorial Charging Decisions: Recognizing the Need to Exercise Discretion-Knowing There Will Be Consequences for Crossing the Line, 60 La. L. Rev. 371, 376 (2000).
15. Peter Krug, supra note 9, at 645.
16. Karen M. McGaffey et al., Enforcement, in The Clean Water Act Handbook 196 (Parthenia B. Evans ed., 1994).
17. Karen M. McGaffey et al., supra note 14, at 196.
18. Ibid. Id.
19. Ibid. Id.
20. This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. See United States v. Batchelder, 442 U.S.?? 114, 123-124 (1979); United States v. Nixon, 418 U.S. 683, 693 (1974); Vaca v. Sipes, 386 U.S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454, 456 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement. The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balance of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency's construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute. Heckler v Chaney,470 U.S, 821, 832 (1985).??
21. See generally Joshua D. Yount, The Rule of Lenity and Environmental Crime, 1997 U. Chi. Legal F. 607, 620 (1997) (discussing how prosecutions under criminal environmental statutes are similar to those used in traditional common law).
22. See id. at 623 ("[A]mbiguity permits selective and arbitrary enforcement. In the environmental realm, where enforcement is committed to agencies accustomed to administering civil provisions with nearly unfettered discretion, protection from overzealous, unpredictable, and politically motivated prosecutions is necessary.").
23. See Barker, supra note 6, at 1412 (discussing these overly broad criminal statutes that outlaw much more conduct than is desired to see prosecuted).
24. See, e.g., id. (discussing the abuses possible in typical law enforcement situations as a result of these type of environmental laws that give broad prosecutorial discretion).
25. See Timothy Lynch, Polluting Our Principles: Environmental Prosecutions and the Bill of Rights, 15 Temp. Envtl. L. & Tech. J. 161, 180 (1996) (discussing removal of intent).
26. See Kepten D. Carmichael, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 Ind. L.J. 729, 740 (1996) (discussing the large number of "public welfare offenses" in environmental area that are a form of strict criminal liability).
27. See id. at 749-50 (discussing responsible corporate officer doctrine as involving corporate executives who are responsible for the activities regulated by public welfare statutes).
28. See Barker, supra note 6, at 1413 (discussing how eliminating a relevant element such as knowledge makes environmental statutes overly broad and gives broad prosecutorial power).
29. See Timothy Lynch, supra note 23, at 165. (citing Don J. DeBenedictis, Hazardous Advice, A.B.A. J., Sept. 1991, at 16: "The explosion of vaguely written environmental rules has spawned a notorious civil liability minefield for the business community. The criminalization of violations of those regulations is making the terrain so treacherous that even lawyers are having difficulty remaining on the right side of the law.").
30. See David A. Barker, supra note 6, at 1412.??
31. [The] pretextual crime problem is potentially applicable to environmental crimes. EPA inspectors regularly show up for inspections without a warrant and simply ask for consent to inspect the facilities since consensual searches do not require warrants. Once the inspector has shown his credentials and is lawfully admitted to the property, anything in "plain view" is admissible evidence, and could quickly turn a routine inspection into a preliminary tour for a full-blown criminal investigation.
32. Id. at 1419-20.
33. See, e.g.,?? Timothy Lynch, supra note 23. To see how this might be achieved, consider the case of the Oregon Environmental Crimes Act ("OECA"), which includes language aimed at constraining prosecutorial discretion: [S]ection 468.961 of the Oregon Revised Statutes requires that the Attorney General, together with local district attorneys, develop legally prescribed guidelines for prosecution. Furthermore, prosecutors bringing a felony charge under the OECA must submit certification to the court that they followed the guidelines.
34. See Gregory A. Zafiris, Comment, Limiting Prosecutorial Discretion under the Oregon Environmental Crimes Act: A New Solution to an Old Problem. 24 Envtl. L. 1674 (1994).
35. See David A. Barker, supra note 6, at 1396-1401.
36. See, e.g., Barrett, A. supra note 4.
37. 922 F.2d 54 (1st Cir. 1991).
38. Id. at 56.
39. See id.
40. Id. at 57.
41. Id. at 56.
42. Dennis Cory & Anna Rita Germani, Criminal Sanctions for Agricultural Violations of the Clean Water Act, 4 Water Pol'y 491 (2002).
43. United States Environmental Protection Agency, FY 1996 End of Year Enforcement & Compliance Assurance Report (1997).
44. See Peter H. Raven & Linda R. Berg, Environment 513-15 (3d ed. 2001).
45. Dennis Cory & Anna Rita Germani, supra note 38, at 505.
46. See generally Rachel Glickman et al., Environmental Crimes, 40 Am. Crim. L. Rev. 413, 421 (2003) (discussing how some courts have inferred the knowledge requirement in utilizing the corporate officer doctrine).
47. See id. (discussing how individual liability can be imposed on officers who have authority to correct violation as opposed to those who actually committed act).
48. United States v. Iverson, 162 F.3d 1015, 1024 (9th Cir. 1998) ("In 1987, after the Supreme Court decided Park, Congress revised and replaced the criminal provisions of the CWA. (Most importantly, Congress made a violation of the CWA a felony, rather than misdemeanor.)").
49. Id.; 33 U.S.C. § 1319 (2000).
50. See U.S Environmental Protection Agency, Water Enforcement Bulleton: October 1998 - June 1999 Cases In Review 37 (1999) (discussing United States v. Johnson, 1999 U.S. Dist. LEXIS 12380) available at http://www.epa.gov.
51. Press Release, U.S. Environmental Protection Agency, Nevada Dairy Sentenced for Clean Water Act Offense (May 6, 1999) available at http://www.epa.gov [hereinafter EPA, Nevada Dairy].
52. U.S. Environmental Protection Agency, Fecal Coliform, at http:// www.epa.gov/maiahtml/fecal.html (last visited Nov. 30, 2004).
53. See Standards for the Use or Disposal of Sewage Sludge, 58 Fed. Reg. 9259 (Feb. 19, 1993) (to be codified at 40 C.F.R. pts. 257, 403 & 503) (stating that cadmium, mercury and polychlorinated biphenyls can bioaccumulate and "may produce toxic effects in aquatic life");
54. EPA, Nevada Dairy, supra, note 47.
55. Barrett, A. supra note 4, at 1422;
56. John M. Walker, Jr., Loosening the Administrative Handcuffs: Discretion and Responsibility Under the Guidelines, 59 Brook. L. Rev. 551, 551 (1993).
57. Sentencing Reform Act of 1984, Pub. L. No. 980-473, 98 Stat. 1987, (codified as amended at 18 U.S.C. §§ 2551 - 3742, 991 - 998).
58. U.S. Sentencing Guidelines Manual § 2Q1.1-2Q2.1 (1998).
59. These ranges are six months or 25% of the minimum, unless the minimum exceeds thirty years. 28 U.S.C. § 994(b)(2) (2000).
60. Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act, Pub. L. No. 108-21 (2003).
61. See David M. Zlotnick, The War Within the War on Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L. Rev. 211, 230-36 (2004) (discussing the Feeney Amendment).
62. William H. Rehnquist, 2003 Year-end Report on the Federal Judiciary Jan. 1. 2004, available at http:// www.supremecourtus.gov/publicinfo/year-end/2003year-endreport.html (last visited Dec. 16, 2004).
63. Ibid. Id.
64. Anthony M. Kennedy, Address at the American Bar Ass'n. Annual Meeting (Aug. 9, 2003), available at http:// www.supremecourtus.gov/publicinfo/speeches/sp_08-09-03.html (last visited Dec. 16, 2004).
65. Susan F. Mandiberg & Susan L. Smith, Crimes Against the Environment 552 (1997).
66. Ibid. Id.
67. Id. at 529-30;
68. see Gary S. Lincenberg, Sentencing of Environmental Crimes, in The Environmental Crimes Case: From Pretrial Proceedings to Sentencing Guidelines 118-121 (Gary S. Lincenberg & David S. Krakoff eds., 1999).
69. See David Zlotnick, supra note 56, at 218.
70. This discussion of Allen H. Frey's case was taken from the EPA's Summary of Criminal Prosecutions, available at http:// cfpub.epa.gov/compliance/criminal∥osecution/index.cfm (last visited Dec. 11, 2004). The case was docketed as United States v. Frey, No. CR: 99-0497 (E.D. Pa. June 16, 1999).
71. This discussion of Harry E. Washut's case was taken from the EPA's Summary of Criminal Prosecutions, available at http:// cfpub.epa.gov/compliance/criminal∥osecution/index.cfm (last visited Dec. 11, 2004). The case was docketed as United States v. Buffalo Valley Resort, Inc. No. CR: 98-01 (D. Wyo. Sept. 14, 1998).
72. This discussion of Leon Baker's case was taken from the EPA's Summary of Criminal Prosecutions, available at http://cfpub.epa.gov/ compliance/criminal∥osecution/index.cfm (last visited Dec. 11, 2004). The case was docketed as United States v. Baker, No. CR: 98-2007 (W.D. Ark. Mar. 12, 1998).
73. 33 U.S.C. § 1319(c)(1)(B) (2000).
74. Susan F. Mandiberg & Susan L. Smith, supra note 60, at 544.
75. See id. at 536, 544.
76. 33 U.S.C. § 1344 (2000).
77. 33 U.S.C. § 1251(a) (2000).
78. 33 U.S.C. § 1344 (2000);
79. see also David Getches, Water Law in a Nutshell, 379-88 (3d ed. 1997) (1984).
80. 33 U.S.C. § 1344 (2000);
81. David Getches, supra note 72, at 386.
82. Id. at 380.
83. Id.; 33 U.S.C. § 1342 (2000);
84. see also 33 U.S.C. § 1362(14) (2000) (defining point source as "any discernible, confined and discrete conveyance").
85. Thomas F.P. Sullivan, The Environmental Law Handbook 284 (16th ed. 2001).
86. David Getches, supra note 72, at 383-85.
87. Joseph L. Sax et al., The Legal Control of Water Resources: Cases and Materials 898 (3d ed. 2000).
88. Ibid. Id.
89. McGaffey et al., supra note 14, at 207-08.
90. Id; see also 33 U.S.C. § 1319(c)(2) (imposing larger fines and longer terms of incarceration for criminal violations that are knowing as compared to merely negligent); Mandiberg & Smith, supra note 60, at 151-52 (indicating that negligent violations result in only misdemeanor liability, while knowing violations constitute a felony).
91. The Act provides that the federal government will defer to the state's enforcement for 30 days. 33 U.S.C. § 1319(a)(1).
92. Id. § 1319(a)(3)
93. 33 U.S.C. § 1365.
94. U.S. Dep't. of Justice, U.S. Attorney's Manual tit. 5, § 11.112 (2003).
95. See generally U.S. Dep't. of Justice in Cooperation with the Nat'l Ass'n of Attorneys General, Guidelines for Joint State/Federal Civil Envtl Enforcement Litigation (2003), available at http:// www.naag.org/issues/pdf/env-joint_enf_guidelines-full.pdf.
96. Id. at 325.
97. U.S. Envtl Protection Agency, Office of Compliance and Enforcement, Civil Penalty Policy for Section 311 (b)(3) and Section 311(j) of The Clean Water Act 3 (1998), available at http://www.epa.gov/ compliance/resources/policies/civil/cwa/311pen.pdf [hereinafter Civil Penalty Policy].
98. Susan F. Mandiberg & Susan L. Smith, supra note 60, at 506.
99. See generally Dennic Cory & Anna Rita Germani, supra note 38.
100. Sullivan, supra note 76, at 305.
101. Susan F. Mandeberg & Susan L. Smith, supra note 60, at 14.
102. Id. at 323.
103. See, e.g., Civil Penalty Policy, supra note 88, at 1 (providing "general guidelines on administrative civil penalty pleading practices under Sections 311(b) and (j) of the Clean Water Act"); see also 33 U.S.C. § 1319(g)(1) (indicating that the EPA Administrator or Army Corps of Engineers Secretary may assess a civil penalty).
104. McGaffey, A. et al., supra note 14, at 213; see also 33 U.S.C. § 1319(g)(3) (requiring that the agency consider factors that include the seriousness of the violation, the defendant's history of prior violations, their degree of culpability, and the benefit derived from the violation).
105. Ibid. Id.
106. See Civil Penalty Policy, supra note 88, at 5-19 (articulating the official procedure for determining the minimum settlement amount in a civil case arising under section 311 of the Clean Water Act); see also 33 U.S.C. § 1321(b)(6)(c) (requiring that public notice be given prior to the issuance of a Class II penalty for an illegal oil spill).
107. 33 U.S.C. § 1319(a)(1), (3).
108. Sullivan, supra note 76, at 304.
109. See 33 U.S.C. § 1319(a) (setting out the requirements of a compliance order).
110. 33 U.S.C. § 1319(g)(3).
111. Administrative penalties are found in two parts of the Act: section 309, which deals with permit violations generally and is codified at 33 U.S.C. § 1319(g)(2), and section 311, which deals with the discharge of oil and hazardous substances, and is codified at 33 U.S.C. 1321(b)(6). Under these sections, penalties are divided into two classes. Class I violations may be assessed a penalty up to $10,000 per violation, but no more than $25,000 in the aggregate. Class II violations may be assessed up to $10,000 per day, but no more than $125,000 total. Violators who receive a Class II penalty cannot be subject to a civil judicial action for the same underlying violation. U.S. Environmental Protection Agency, Penalties for Oil Discharge, at http://www.epa.gov/oilspill/ penalty.htm#Administrative (last visited December 9, 2004).
112. The Senate Report accompanying the 1987 Amendments suggests that administrative enforcement was intended for use in smaller cases, for uncontested offenses, and for past violations. See S. Rep. No. 99-50, at 25-27 (1985) referenced in 1987 U.S.S.C.A.N. 5, 5 (discussing the purposes of creating administrative enforcement concurrent with civil enforcement).
113. See Dennis Cory & Anna Rita Germani, supra note 38.
114. 33 U.S.C. § 1319(d); see also 33 U.S.C. § 1321(b)(8) (indicating that in determining the amount of the penalty, the agency must consider the seriousness of the violation, its economic benefit to the violator, their culpability and history of violations, the success of any efforts to mitigate the harm, and the economic impact to the violator that the penalty would have); Civil Penalty Policy, supra note 88 (identifying the factors that may be considered in establishing acceptable amounts for settlement of civil penalties).
115. Civil Penalty Policy, supra note 88, at 4.
116. Id. at 72. Although the names are different, the choices made at each level are very similar. We will therefore consider them both under the umbrella of "prosecutorial discretion."
117. McGaffey, A. supra note 14, at 196.
118. See, e.g., Civil Penalty Policy, supra note 88, at 10 (noting that a sophisticated offender is assumed to have a greater degree of culpability, resulting in increased fines);
119. Both DOJ and EPA guidelines are published with warnings that are for internal use only and do not have the force of law. Courts have consistently held that these guidelines are intended to convey no legal rights. See, e.g., United States v. Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999).
120. Devaney Memo, supra note 109.
121. See id. The Devaney Memo is one of only two EPA guidance documents covering criminal prosecution. Moreover, EPA's website indicates that the Memo "establishes case selection criteria for case investigated by EPA's Office of Criminal Enforcement, Criminal Investigation Division." U.S. Environment Protection Agency, Criminal Enforcement: Policies and Guidelines, at http://www.epa.gov/ Compliance/resources/policies/criminal/index.html (last visited Dec. 16, 2004).
122. Devaney Memo, supra note 109, a 3.
123. See id.
124. See id.
125. Id. at 4.
126. Id. at 4-5.
127. 2000 United States Attorneys' Manual. supra note 109, at § 9-27.000.
128. Id. § 9-27.200.
129. Ibid. Id.
130. Ibid. Id.
131. Sullivan, A. supra note 76, at 73.
132. Peter Krug, supra note 9, at 645.
133. Imbler v. Pachtman, 424 U.S. 409 (1976).
134. The "Hyde Amendment," codified at 18 U.S.C § 3006(A), provides that: "[A] court, in any criminal case may award to a prevailing party a reasonable attorney's fee and other litigation expenses, where the court finds that the [government's] position ... was vexatious, frivolous, or in bad faith, unless ... [it] finds that special circumstances make such an award unjust.
135. It is entirely possible that additional guidance exists, but is not available to the public. In Jordan v. United States Department of Justice, 591 F.2d 753 (D.C. Cir. 1978), the court held that for purposes of the Freedom of Information Act, 5 U.S.C. § 552, documents relating to the exercise of prosecutorial discretion by the United States Attorney are not "administrative staff manuals," releasable to the public under § 552(a)(2).
136. Jennifer F. Reinganum, Plea Bargaining and Prosecutorial Discretion 78 Am. Econ. Rev. 713, 713 (1998).
137. To be sure, § 1319(a)(1) requires that the Administrator, on finding a violation, respond with a compliance order or sanction within thirty days. 33 U.S.C. § 1319(a)(1). This could be identified as a limitation on the discretion to decline enforcement. In practice, however, it is not clear that this provision acts as a substantial constraint. See William H. Rogers, Jr. Environmental Law: Air and Water 591-592 (1986) ("The compulsion in the process does not take hold, of course, until there has been a "finding" of a violation, and most courts are reluctant to force the EPA's hand on the matter.").
138. See supra note 18, quoting Heckler v. Chaney, 470 U.S. 821 (1985).
139. McGaffey, A. et al., supra note 14, at 196.
140. Ibid. Id.
141. See Mandiberg, A. & Smith, A. supra note 60, at 585.
142. 18 U.S.C. § 3552(a); Fed. R. Crim. P. 32(b)(1).
143. Fed. R. Crim. P. 32(b)(4).
144. Fed. R. Crim. P. 32(b)(4).
145. See Mandiberg, A. & Smith, A. supra note 60, at 587.
146. Ibid. Id.
147. See Fed. R. Crim. P. 32(b)(4).
148. Mandiberg, A. & Smith, A. supra note 60, at 587.
149. See Fed. R. Crim. P. 32(b)(4).
150. Fed. R. Crim. P. 32(b)(6)(A).
151. Fed. R. Crim. P. 32(b)(6)(B).
152. See Mandiberg, A. & Smith, A. supra note 60, at 588.
153. See Fed. R. Crim. P. 32(b)(6)(C).
154. Mandiberg, A. & Smith, A. supra note 60, at 589.
155. Ibid. Id.
156. 18 U.S.C. § 3553(c).
157. 18 U.S.C. § 3742;
158. see Mandiberg, A. & Smith, A. supra note 60, at 591 ("Applications of the Guidelines are reviewed de novo as to legal issues and on a clearly erroneous standard as to factual issues. Mixed questions of law and fact are reviewed under the clearly erroneous standard.")
159. See generally Joesph E. Cole, Environmental Criminal Liability: What Federal Officials Know (or Should Know) Can Hurt Them, 54 A.F.L. Rev. 1 (2004).
160. See Wayne R. LaFave, Substantive Criminal Law 340 (2d ed. 2003) ("For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant's acts or omissions be accompanied by one or more types of fault (intention, knowledge, recklessness, or-more rarely-negligence).").
161. See id. at 341 ("Doubtless with many such crimes the legislature is aiming at bad people and expects that the prosecuting officials, in the exercise of their broad discretion to prosecute or not to prosecute, will use the statute only against those persons of bad reputation who probably actually did have the hard-to-prove bad mind, letting others go who, from their generally good reputation, probably had no such bad mental state.")
162. Id. at 382.
163. Suppose a criminal statute contains the elements ABC; suppose further that C is hard to prove, but prosecutors believe they know when it exists. Legislatures can make it easier to convict offenders by adding new crime AB, leaving it to prosecutors to decide when C is present and when it is not.
164. William Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 531 (2001).
165. LaFave, A. supra note 150, at 14.
166. United States v. Cordoba-Hincapie, 825 F. Supp. 485, 492 (E.D.N.Y. 1993) (citing Blackstone's Commentaries).
167. See LaFave, A. supra note 150, at 340-41 ("Usually, but not always, the statutory crime-without-fault carries a relatively light penalty-generally of the misdemeanor variety. Often, this statutory crime has been created in order to help the prosecution cope with a situation wherein intention, knowledge, recklessness, or negligence is hard to prove, making convictions difficult to obtain unless the fault element is omitted.").
168. It is not clear that all of the environmental crimes are public welfare offenses. See Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 Envtl. L. 1165, 1203-04 (1995) (stating that environmental law is comprised of both "public welfare offenses" as well as "innocent activity offenses").
169. See Cole, A. supra note 149, at 6.
170. See LaFave, A. supra note 150, at 353 (stating that some criminal statutes generally containing no language of fault, specifically impose criminal liability upon the employer for the bad conduct of his employee).
171. Steven F. Gifis, Barron's Law Dictionary 543 (1996).
172. Alan O. Sykes, The Economics of Vicarious Liability, 93 Yale L.J. 1231, 1235 (1984) ("Empirically, principals are usually better risk bearers than their agents. Agents are often individuals of limited means who may be quite risk averse as to the prospect of even modest financial losses. Principals, by contrast, are often wealthier individuals, and intuition suggests that aversion to risk of a given magnitude often declines as wealth increases.").
173. It is argued that this is the case with public welfare offenses and the CWA.
174. See Jed Handelsman, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age, 110 Yale L.J. 333 (2000).
175. W. Page Keeton et al., Prosser and Keeton on Torts 500 (5th ed. 1984) ("Not only the torts of servants and slaves, or even wives, but those of inanimate objects were charged against their owner.").
176. Gary T. Schwartz, The Hidden and Fundamental Issue of Employer Vicarious Liability, 69 S. Cal. L. Rev. 1739, 1746 (1996) ("[Vicarious liability] seems to have entered the common law of England only around 1700 through a series of opinions, most of them authored by Justice Holt.").
177. Id. at 1745. (stating that "there is now a consensus among those Americans who think about tort law that vicarious liability is an essential element in the tort system. Any idea of repealing vicarious liability would seem to us preposterous, inconceivable," but going on to argue that repeal is, in fact, conceivable).
178. The consensus may be summarily stated: to punish conduct without reference to the actor's state of mind is both inefficacious and unjust. It is inefficacious because conduct unaccompanied by awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventative or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.
179. Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 109.
180. LaFave, A. supra note 150, at 388.
181. See Allen Michaels, Constitutional Innocence, 112 Harv. L. Rev. 828, 844 (1999).
182. Id. at 831.
183. Susan F. Mandiberg, supra note 156, 1177-78 (1995).
184. See generally Nancy Frank, From Criminal Law to Regulation: A Historical Analysis of Health and Safety Law (1986).
185. This discrepancy gave rise to the new classifications of crimes as either "mala in se" (intrinsically morally wrong) and "mala prohibita" (wrong merely because it has been prohibited). See id. at 176-77, 208 (discussing mala prohibita and mala in se).
186. See id. at 208 (quoting a working paper by Louis Schwartz and Paula Markowitz: "Use of penal sanctions to enforce regulation involves substantial risk that a person may be subjected to conviction, disgrace, and punishment although he did not know that his conduct was wrongful.").
187. Kathleen F. Brickey, The Rhetoric of Environmental Crime: Culpability, Discretion, and Structural Reform, 84 Iowa L. Rev. 115, 117 (1998) ("Every student of the criminal law knows that ignorance of the law is no excuse.").
188. Richard G. Singer & John Q. LaFond, Criminal Law ExAmples and Explanations 84, 100 (2d ed. 2001).
189. See Susan F. Mandiberg, supra note 156, at 1185 (stating that some early courts used utilitarian reasoning to find regulatory crimes to be strict liability)
190. A. Frank, supra note 171, at 223-24 (noting that legal scholars in the 1930s, 1940s, and 1950s rejected strict liability).
191. Susan F. Mandiberg, supra note 156, at 1167.
192. 342 U.S. 246 (1953).
193. See Susan F. Mandiberg, supra note 156, at 1203.
194. But see Allen Michaels, supra note 168, at 828 (rejecting the "mistake-of-fact/mistake-of-law" distinction, and arguing instead for an underlying principle of "constitutional innocence")
195. Susan F. Mandiberg, supra note 156, at 1242.
196. Ibid. Id.
197. David C. Fortney, Thinking Outside the Black Box: Tailored Enforcement in Environmental Criminal Law, 81 TEx. L. REv. 1609, 1611 (2003).
198. See Amiad Kushner, Applying the Responsible Corporate Officer Doctrine Outside the Public Welfare Context, 93 J. Crim. L. & Criminology 681, 706-07 (2003) (discussing RCO doctrine, vicarious liability, and the CWA).
199. Where the offense is also a public welfare offense, the agent will be presumed to have known the law.
200. United States v. Park, 421 U.S. 658, 673-74 (1975).
201. Ellen S. Podgor & Jerold H. Isreal, White Collar Crime in a Nutshell 32-33 (2d ed. 1997).
202. Id. at 53.
203. United States v. Dotterweich, 320 U.S. 277, 280 (1943).
204. Id. at 281.
205. Office of Consumer Litigation, United States Department of Justice, The Federal Food, Drug, and Cosmetic Act (FDCA), at http:// www.usdoj.gov/civil/ocl/monograph/fdca.htm (last visited November 15, 2004).
206. Dean C. Miller, Hazardous Acts: Awareness of Pitfalls is Essential for Corporate Officers to Avoid Jail Time, Colo. J., at http:// www.dgslaw.com/articles/111114.html (November 15, 2004).
207. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified as amended at 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998.
208. See 18 U.S.C. § 3551 (1988); U.S. Sentencing Guidelines Manual (1988).
209. U.S. Sentencing Guidelines Manual, ch. 3, pt. D, introductory comment to n. 3.
210. A. Walker, supra note 51, at 551, 553.
211. See 28 U.S.C. § 994(b)(2) (stating maximum range of imprisonment shall not exceed the minimum in such range by more than the greater of 25% or 6 months).
212. A. Walker, supra note 51, at 553.
213. Jose A. Cabranes, A Failed Utopian Experiment, Nat'l L.J., July 27, 1992, at 17.
214. Ibid. Id.
215. Jose A. Cabranes, Sentencing Guidelines, a Dismal Failure, N.Y.L.J., Feb. 11, 1992, at 2.
216. William W. Schwarzer, Judicial Discretion in Sentencing, 159 Practicing Law Inst. Crim. 15, 20 (1991).
217. Ibid. Id.
218. Ibid. Id.
219. Id. at 28.
220. Charles J. Ogletree, The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 Harv. L. Rev. 1938, 1953 (1989).
221. Id. at 1960.
222. Ibid. Id.
223. Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1705 (1992).
224. Id. at 1687.
225. Id. at 1726-27.
226. Id. at 1718.
227. Steve Y. Koh, Note, Reestablishing the Federal Judge's Role in Sentencing, 101 Yale L.J. 1109, 1124 (1992).
228. Ibid. Id.
229. Ibid. Id.
230. Id. at 1134.
231. Daniel Freed, supra note 210, at 1705.
232. See, e.g., Shari L. Kaufman, The Federal Sentencing Guidelines: A Formulaic and Impersonal Approach to Dispensing Justice, Nev. Law., Sept. 1999, at 18, 20.
233. Stewart Dalzell, One Cheer for the Guidelines, 40 Vill. L. Rev. 317, 317 (1995).
234. Id. at 328.
235. Id. at 322-23
236. (quoting Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration, 101 Yale L.J. 2043, 2044 (1992)).
237. Stewart Dalzell, supra note 220, at 323.
238. Id. at 322.
239. Id. at 324-25.
240. Id. at 325
241. (quoting Sir Leon Radzinowicz & Joan King, The Growth of Crime: The International Experience 327-28 (1977)) (internal quotations omitted).
242. A. Walker, supra note 51, at 558.
243. Ibid. Id.
244. Ibid. Id.
245. see also A. Koon v. United States, 518 U.S. 81, 92 (1996) (allowing for judicial discretion in the implementation of the Guidelines).
246. Honorable Patti B. Saris, Below the Radar Screens: Have the Sentencing Guidelines Eliminated Disparity? One Judge's Perspective, 30 Suffolk U. L. Rev. 1907, 1929 (1997).
247. Id. at 1062;
248. see also Ian Weinstein, The Discontinuous Tradition of Sentencing Discretion: Koon's Failure to Recognize the Reshaping of Judicial Discretion Under the Guidelines, 79 B.U. L. Rev. 493, 549 (1999) (noting that judges use their limited discretion to individualize in only approximately 10% of the cases, while 70% are sentenced within their sentencing range).
249. Paul H. Robinson, The Federal Sentencing Guidelines: Ten Years Later 91 NW. U. L. Rev. 1231, 1235 (1997).
250. Ibid. Id.
251. Ibid. Id.
252. Ibid. Id.
253. Ibid. Id.
254. Ibid. Id.
255. Thomas N. Whiteside, The Reality of Federal Sentencing: Beyond the Criticism, 91 Nw. U. L. Rev. 1574, 1591 (1997).
256. Thomas N. Whiteside, The Reality of Federal Sentencing: Beyond the Criticism, 91 Nw. U. L. Rev. 1574, 1591 (1997). 257 Id. at 1593.
257. Id. at 1596.
258. Id. at 1593.
259. Frank O. Bowman, III, The Quality of Mercy Must be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 Wis. L. Rev. 679, 713-14 (1996).
260. Id. at 686.
261. Id. at 686.
262. Id. at 680.
263. Roy K. Little, Proportionality as an Ethical Precept for Prosecutors in their Investigative Role, 68 Fordham L. Rev. 723,770 n.139 (1999).
264. William W. Schwarzer, supra note 203, at 27-28.
265. Shari L. Kaufman, supra note 219, at 20 (1999).
266. Lisa Rebello, Note, Sentencing Under the Federal Sentencing Guidelines: Five Years of "Guided Discretion⇆1i], 26 Suffolk U. L. Rev. 1031, 1037 (1992).
267. Ryan M. Zenga, Note, Retroactive Law or Punishment for a New Offense?-The Ex Post Facto Implications of Amending the Statutory Provision Governing Violations of Supervised Release, 19 W. New Eng. L. Rev. 499, 505 (1997).
268. Molly Treadway Johnson & Scott A. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey (1997) available at http://www.fjc.gov/public/Pdf.nsf/lookup/ gssurvey.pdf/$File/gssurvey.pdf.
269. Id. at 3.
270. Ibid. Id.
271. Id. at 3-4.
272. Id. at 4.
273. The current federal sentencing guidelines only apply to individual offenders and not to corporations or professional organizations. Although organizational guidelines have been proposed, see generally Robert L. Kracht, Comment, A Critical Analysis of the Proposed Sentencing Guidelines for Organizations Convicted of Environmental Crimes, 40 Vill. L. Rev. 513 (1995) (examining guidelines proposed by the Advisory Working Group on Environmental Sanctions), we limit our discussion in this paper only to those guidelines that have the force of law.
274. See Douglas A. Berman, Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines 76 Notre Dame L. Rev. 21 (2000-2001) (criticizing the prevailing jurisprudential attitude towards departure).
275. See Barbara S. Barrett, Sentencing Guidelines: Recommendations for Sentencing Reform, 57 Mo. L. Rev. 1077, 1078 (1992) (positing guidelines as "the best way to achieve proportionality and uniformity").
276. See Benjamin S. Sharp, Environmental Enforcement Excess: Overcriminalization and Too Severe Punishment, C617 A.L.I.-A.B.A. 179, 186 (1991).
277. Judson W. Starr & Thomas J. Kelly, Jr., Environmental Crimes and the Sentencing Guidelines: The Time Has Come ... and it is Hard Time, 20 Envtl. L. Rep. 10096, 10096 (1990).
278. Ibid. Id
279. Id. at 10097.
280. Ibid. Id.
281. See Helen J. Brunner, Environmental Criminal Enforcement: A Retrospective View, 22 Envtl. L. 1315, 1341 (1992) (noting that "the cases are still not viewed as traditional crimes" and asserting that the pursuit of corporate officers has led to a reluctance "to impose the harsher sanctions that the sentencing guidelines demand").
282. Id. at 1340.
283. See Barbara S. Barrett, supra note 4, at 1428-29 (alleging that in some circumstances, key determinations are left "entirely to the discretion of the district judge").
284. Id. at 1429.
285. Id. at 1448.
286. See Helen J. Brunner, supra note 264, at 1315 (reviewing the history of the EPA regarding criminal investigations).
287. See generally Mark A. Cohen, Environmental Crime and Punishment: Legal/Economic Theory and Empirical Evidence on Enforcement of Federal Environmental Statutes, 82 J. Crim. L. & Criminology 1054 (1992).
288. Ibid. Id.
289. Ibid. Id.
290. For a discussion of optimal penalties and an exposition on the use of expected penalties in deterrence, see generally id. at 1063-63 and Steven C. Hackett, Evironmental and Natural Resources Economics 147-49 (1st ed. 1998).
291. Gary Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1968).
292. Louis L. Wilde, Criminal Choice, Non-monetary Sanctions, and Marginal Deterrence: Normative Analysis, 12 Int'l Rev. L. & Econ. 333, 333 (1992) (citing R.A. Carr-Hill & N.H. Stern, Crime, the Police and Criminal Statistics (1979)).
293. Ibid. Id.
294. Steven Shavell, A Note on Marginal Deterrence, 12 Int'l Rev. L. & Econ. 345, 345 (1992).
295. The classic situation is described in an old English proverb, of unknown origin, first recorded in John Ray, A Collection of English Proverbs (1678): "As good be hanged for a sheep as a lamb." Imagme a thief has an opportunity to carry off one animal from a flock. If the penalty is the same for which-ever animal he chooses, he might as well take the most valuable.
296. See David Friedman & William Sjostromn, Hanged for a Sheep-The Economics of Marginal Deterrence, 22 J. Legal Stud.Tud. 345, 345-47 (1993) (examining how the setting of punishment effects criminal agency).
297. George J. Stigler, The Optimum Enforcement of Laws, 78 J. Pol. Econ. 526 (1970).
298. George J. Stigler, The Optimum Enforcement of Laws, 78 J. Pol. Econ. 526 (1970).
299. Early writers have discussed the notion as well. In 1770, Cesare Beccaria argued that "the severity of punishment itself emboldens men to commit the very wrongs it is supposed to prevent; they are driven to commit additional crimes to avoid the punishment for single one." Cesare Beccaria, On Crimes and Punishments, (Henry Paolucci trans., 1st ed. 1963). Similarly, in 1789, Jeremy Bentham stated that an object of punishment is "to induce a man to choose always the least mischievous of two offences; therefore where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less."
300. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in The Utilitarians 171 (1961).
301. David Friedman & William Sjostrom, supra note 277, at 345-47.
302. Dilip Mookherjee and I.P.L. Ping derive similar results showing that when the level of an activity is a continuous variable and individuals derive heterogeneous benefits the result should be that "marginal expected penalties be everywhere less than marginal harm, but that there
303. A potentially important caveat for this result has been demonstrated in John Henderson & John P. Palmer, Does More Deterrence Require More Punishment? [Or Should the Punishment Fit the Crime?], 13 Eur. J. L. & Econ. 143 (2002). When the regulated community has heterogeneous tastes and preferences across violators, aggregation can lead to a backward-bending expansion path in the production of deterrence. Under these conditions, it may not be optimal for the punishment to fit the crime, Id. at 154. The authors cite the example of the crime of assassinating a political leader. Id. at 155. While this result is clearly of theoretical interest, such an outcome seems unlikely in the context of enforcing federal environmental law.
304. See 33 U,S.C. § 1342;
305. see also 33 U.S.C. §§ 1362(12)(A) and (14).
306. Karen M. McGaffey et al., supra note 14, at 196 (discussing methods of enforcement and related case law).
307. See 33 U.S.C. §§ 1319(c)(1) and 1319(c)(4).
308. A. Mandiberg & A. Smith, supra note 60,13 (1997).
309. For a comprehensive discussion of the law and economics of criminal sanctions, see generally Steve Shavell, Foundations of Economic Analysis of Law, chs. 20-24 (2003).
310. See generally id. at 540-68.
311. See id.
312. See id.
313. See id.
314. 33 U.S.C. § 1319(c)(4).
315. See, e.g., U.S. Environmental Protection Agency, Criminal Enforcement Highlights FY-2004, available at http://www.epa.gov/ compliance/resources/reports/endofyear/eoy2004/ 2004criminalhighlights.html (showing enforcement actions for fiscal year 2004).
316. See generally Steve Shavell, supra note 287, at 540-568.
317. 33 U.S.C. §1319(c)(1)(A).
318. See supra note 104 and accompanying Table.
319. Three other justifications have traditionally been given for imposing criminal sanctions on acts with the potential to do significant harm: (1) incapacitation, preventing individuals from engaging in undesirable acts by removing them from society; (2) rehabilitation, attempting to induce a reduction in a person's propensity to commit undesirable acts; and (3) retribution, the desire of individuals to see wrong doers punished. See generally William Spelman, Criminal Iincapacitation (1994) (discussing incapacitation);
320. Richard A. Wright, In Defense of Prisons (1994) (discussing rehabilitation);
321. Jack Hirshleifer, Natural Economy Versus Political Economy, 1 J. Soc. & Biological Structures 319 (1978) (discussing retribution).
322. Louis Kaplow, A Note on the Optimal Use of Nonmonetary Sanctions, 42 J. Pub. Econ. 245, 245-47 (1990). With other factors held constant, it is likely that fault-based liability will reduce socially costly punishment. A comprehensive evaluation of the relative merits of strict liability and negligence liability rules is well beyond the scope of this discussion. A variety of complicating factors would have to be considered in such an analysis including attitudes toward risk aversion, the judgment-proof problem, administrative and enforcement costs, incentives for settlement, and legal error. For a comprehensive discussion, see Shavell, supra note 277.
323. An interesting, and perhaps troubling, sociological implication of cost-effective deterrence involves the relationship between a person's wealth and sanctions. If an individual's wealth is above the threshold at which deterrence with monetary sanctions will be adequate, the sanction should be entirely monetary. Given the threshold level, as wealth decreases, the need for and magnitude of non-monetary sanctions increases. See Steven Shavell, Criminal Law and the Optimal Use of Non-monetary Sanctions as a Deterrent, 85 Colum. L. Rev. 1232, 1236-38 (1985).
324. Mark A. Cohen, supra note 270, at 1104.
325. Mark A. Cohen, Theories of Punishment and Empirical Trends in Corporate Criminal Sanctions, 17 Managerial & Decision Econ. 399 (1996).
326. Winston Harrington, Enforcement Leverage when Penalties Are Restricted, 37 J. Pub. Econ. 29, 29 (1988).
327. When a violation is discovered, by far the most common response is for the agency to send a notice of violation (NOV) and then take no further action. See generally U.S. E.P.A., Profile of Nine State and Local Air Pollution Agencies (1998). Moreover, when penalties are imposed, the average size of the penalty is much smaller than compliance costs. The magnitude of this discrepancy is illustrated in a survey of state enforcement activity over the decade from 1973 to 1983 conducted by Winston Harrington. Harrington, supra note 302, at 30.
328. Winston Harrington, supra note 302, at 31.
329. See U.S. Environmental Protection Agency, Characterization of Air Pollution Control Equipment Operation and Maintenance Problems (1981).
330. Winston Harrington, supra note 302.
331. Restricted penalties often characterize environmental enforcement. For example, under the CWA, limits are placed on fines, see supra Table 1, and the Federal Sentencing Guidelines impose constraints on criminal sanctions. In theory, however, the EPA probably does possess sufficient power to force compliance with regulations. An example of a draconian measure might be seeking an injunction to shutdown a non-compliant plant completely. In practice, there is considerable reluctance to pursue extreme sanctions because it is costly and the outcome is uncertain. See generally Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (1982).
332. Anthony Heyes & Neil Rickman, Regulatory Dealing-Revisiting the Harrington Paradox, 72 J. Pub. Econ. 361 (1999).
333. See Winston Harrington, supra note 302, at 48-52.
334. See, e.g., Anthony Heyes & Neil Rickman, supra note 308, at 361.
335. Id. at 372.
336. See generally id. at 372-73.
337. Naturally, there are other explanations of compliance without penalties. Informal sanctions such as facing bad publicity, being forced to attend time-consuming meetings, or conducting additional maintenance operations may also play an important role. See generally Paul Downing, Environmental Economics anf Policy (1984).
338. See Mark A. Cohen, supra note 270, at 1102-04.
339. See generally Steven Shavell, supra note 277, at 492-514.
340. See generally A. Lincenberg, supra note 62, at 114-18.
341. Ratana Chuenpagdee et al., Environmental Damage Schedules: Community Judgments of Importance and Assessment of Losses, 77 Land Econ. 1 (2001).
342. Brian R. Binger et al., Contingent Valuation Methodology in the Natural Resource Damage Regulation Process: Choice Theory and the Embedding Phenomenon, 35 Nat. Resources J. 443 (1995);
343. Daniel Kahneman et al., Economic Preferences or Attitude Expression? An Analysis of Dollar Responses to Public Issues, 19 J. Risk & Uncertainty 220 (1999).
344. Jack L. Knetsch et al., Reference States, Fairness, and Choice of Measure to Value Environmental Changes, in Environment, Ethics and Behavior: The Psychology of Environmental Valuation and Degradation (Max H. Bazerman et al. eds., 1997);
345. Jack L. Knetsch, Environmental Policy Implications of Disparities Between Willingness to Pay and Compensation Demanded Measures of Value 18 J. Envtl. Econ. & Mgmt. 227 (1990). In an effort to appraise the validity of contingent valuation ("CV") measures of economic value, a distinguished panel of social scientists, chaired by two Nobel Laureates, was established by the National Oceanic and Atmospheric Association ("NOAA") to critically evaluate the validity of CV measures of nonuse value.
346. See Report of the NOAA Panel on Contingent Valuation, 58 Fed. Reg. 4602-14 (January 15, 1993). The report was highly critical; For a rebuttal see Discussion Paper 96-20 published by Resources for the Future:
347. Richard T. Carson et al., Was the NOAA Panel Correct About Contingent Valuation? (1996).
348. Daniel Kahneman et al., Shared Outrage and Erratic Awards: The Psychology of Punitive Damages, 16 J. Risk & Uncertainty 49 (1998);
349. Murray B. Rutherford et al., Assessing Environmental Losses: Judgments of Importance and Damage Schedules, 22 Harv. Envtl. L. Rev. 51, 56-61 (1998).
350. A recent study confirms the general, recent legal trend of the continuous increase in criminal penalties; that is, the trend toward fines and total penalties for corporations or organizations, convicted of federal crimes, being higher under the sentencing guidelines than they were previously well documented. Cindy Alexander et al., Regulating Corporate Criminal Sanctions: Federal Guidelines and the Sentencing of Public Firms, 42 J. L. & Econ. 393 (1999).
351. For a discussion and illustration of the use of fines and imprisonment, see Thomas J. Micell, The Economic Approach to Law, 292-93 (2004).
352. For a full explication, see A. Mitchell Polinsky & Steven Shavell, The Optimal Use of Fines and Imprisonment, 24 J. of Pub. Econ. 89 (1984).
353. Or at least that no such good can be known.
354. In this context, happiness is specifically understood as the satisfaction of preferences.
355. Exactly whose aggregate happiness is not always clear. The boundaries of the relevant community are not a matter of consensus. According to some utilitarians, for example, the happiness of animals is also to be considered in calculating the aggregate happiness. See generally Peter Singer, Animal Liberation (2001).
356. See Concise Routledge Encyclopedia of Philosophy 909 (2000) (discussing utilitarianism);
357. Allen Buchanan, Ethics, Efficiency, and the Market 55 (1988) (discussing utilitarianism).
358. See generally Allen Buchanan, supra note 326, at 55.
359. Today, scholars commonly distinguish between two forms of utilitarianism: act-utilitarianism and rule-utilitarianism. According to act-utilitarianism, an act is just "if and only if, it would produce the best consequences among all the acts the agent can perform." According to rule-utilitarianism, acts are right "if, and only if, they are prescribed by rules which are in turn justified by the consequences of their being adopted or conformed to." Rule utilitarianism attempts to account for the seeming impossibility of building general moral principles like honesty and procedural fairness from instantaneous cost-benefit judgments. Fred R. Berger, Happiness, Justice, and Freedom 64 (1984).
360. See, e.g., Richard A. Posner, The Economics of Justice 80 (1981) ("The main point, however, is that the specific distribution of wealth is a mere by-product of the distribution rights that is itself derived from the wealth-maximization principle. A just distribution of wealth need not be posited.").
361. While one can imagine economic arguments accounting for rules prohibiting certain means ex post facto (for instance, that fear of arbitrary law enforcement chills the market), economics is unconcerned with justice per se.
362. Christine L. Wettach, Mens Rea and the "Heightened Criminal Liability" Imposed on Violators of the Clean Water Act, 15 Stan. Envtl. L.J. 377, 399-400 (1996).
363. Id. at 399.
364. Hanousek v. United States, 528 U.S. 1102, 1102 (2000) (Thomas, J., dissenting from denial of certiorari).
365. See generally United States v. Park, 421 U.S. 658 (1975)
366. Kushner, supra note 185.
367. United States v. MacDonald& Watson Oil Co., 933 F.3d 35, 55 (1st Cir. 1991).
368. In this system of separated powers, each branch is supposed to check the others. That does not happen. Instead, the story of American criminal law is a story of tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes, and growing marginalization of judges, who alone are likely to opt for narrower liability rules rather than broader ones. Stuntz, supra note 152, at 5 10.
369. David A. Barker, supra note 6, at 1418.
370. See infra Part II.B.
371. See infra Part II.C.
372. See infra Part II.C.
373. Shari L. Kaufman, supra note 219, at 18.
374. A. Koh, supra note 214, at 1124.
375. Jane Barrett, supra note 4, at 1423. A white-collar crime is a nonviolent crime, usually involving cheating and dishonesty in commercial matters. Black's Law Dictionary 1590 (7th ed. 1999).
376. Jane Barrett, supra note 4, at 1426.
377. Id. at 1427-29;
378. see also Panel I: Environmental Ethics, 21 Ecology L.Q. 417, 424-25 (1994) ("It is rare for an environmental criminal to serve any time for an environmental crime.").
379. Jane Barrett, supra note 4, at 1428.
380. Id. at 1428.
381. Id. at 1429.
382. See Cindy Johnson, Note, For Better or Worse: Alternatives to Jail Time for Environmental Crimes, 26 New Eng. J. on Crim. & Civ. Confinement 265, 297 (2000).
383. See id. at 277-78.
384. A. Sharp, supra note 259, at 181.
385. See Paula de Prez, Excuses, Excuses: The Ritual Trivialisation of Environmental Prosecutions, 12 J. Envtl. L. 65, 75 (2000).
386. A. Sharp, supra note 259, at 185.
387. Ibid. Id.
388. See id. at 186 (discussing how environmental offenders usually receive an incarceration sentence when convicted).
389. See A. Freed, supra note 210, at 1726-27;
390. Jack Weinstein, Note, A Trial Judge's Second Impression of the Federal Sentencing Guidelines, 66 S. Cal. L. Rev. 357, 364-65 (1992);
391. see also Paula de Prez, supra note 352, at 72-75.
392. 961 F.2d 462 (4th Cir. 1992).
393. Id. at 468.
394. Ibid. Id.
395. No. 90-38-S (E.D. Ky. Jan. 7, 1991).
396. Ibid. Id.
397. David B. Spence, Paradox Lost: Logic, Morality, and the Foundations of Environmental Law in the 21st Century, 20 Colum. J. Envtl. L. 145, 173 (1995)
398. (quoting Donald A. Carr, Prosecutors Out of Control, ECO, June 1993, at 56).
399. See Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law 83 Geo. L.J. 2407, 2452 (1995) (discussing the significance of incarceration in determining penalties for environmental offenses).
400. Paula De Prez, supra note 352, at 65.
401. Id. at 76.
402. See generally Alexander et al., supra note 321, at 416 (arguing that corporations pay higher criminal fines since the adoption of the Guidelines).
403. See Lauren A. Lundin, Sentencing Trends in Environmental Law: An "Informed" Public Response, 5 Fordham Envtl. L.J. 42, 48-51 (1993) (discussing how Guidelines now allow first-offenders to be subject to criminal sanctions, and how various factors can lead to enhancement of the base offense).
404. Id. at 50-51.
405. Ibid. Id.
406. Id. at 48-51.
407. Office of Enforcement and Compliance Assurance, United Statts Environmental Protection Agency, Pub. No. 300-R-00-005, Annual Report on Enforcement and Compliance Assurance Accomplishment in 1999, 6 (2000) [hereinafter 1999 Compliance Assurance] (on file with Duke Environmental Law & Policy Forum)
408. United States Environmental Protection Agency, FY 2003 End of Year Enforcement & Compliance Assurance Results, 3, 12 (2003), available at http://www.epa.gov/compliance/resources/reports/endofyear/ [hereinafter 2003 Compliance Assurance].
409. 1999 Compliance Assurance, supra note 371,at 5.
410. 2003 Compliance Assurance, supra note 372, at 12.
411. The amount of criminal fines collected in 2002 by the EPA declined approximately 34% or almost eight million dollars from the previous year. Kenneth Reich & Seth Handy, Environmental Crimes: Penalties are Down but the Beat Goes on, 34 A.B.A. SEC. Env't, Energy, & Resources Newsl. 10, 10-11 (2003).
412. See 2003 Compliance Assurance, supra note 372, at 12 (showing a decrease in the number of defendants charged in 2002 and 2003 with the decline in 2003 being much greater).
413. A. Sharp, supra note 259, at 185.
414. 18 U.S.C. § 3553(b);
415. U.S.S.G. § 5K2.0.
416. For a summary of departures approved and disapproved by appellate courts, see United States Sentencing Commission, Guideline Departures 1989-1999 (2000).
417. It is important to note that if a specific statute prescribes different minimum or maximum term of imprisonment, the guideline range is consequently adjusted to fit the statutory provisions. See U.S.S.G. § 5G1.1.
418. U.S.S.G. § 5E.
419. U.S.S.G. § 5B.
420. U.S.S.G. § 5D.
421. U.S.S.G. § 5C.
422. The 1994 EPA Guidance directs agents to focus on violators causing "significant environmental harm" which is defined by four factors: (1) actual harm that has an identifiable and significant harmful impact on human health or the environment; (2) the threat of significant harm by an actual or threatened discharge, release or emission; (3) the failure to report an actual discharge, release, or emission, coupled with actual or threatened environmental harm; and (4) a single violation that represents a "trend or common attitude within the regulated community." See Steven P. Solow, Preventing an Environmental Violation from Becoming a Criminal Case, 18 Nat. Resources & Envtl 19, 20 (2004).
423. Id. at 21.
424. See Joseph W. Martini & Karen Mignone, Minimizing Client Exposure to Criminal Enforcement for Environmental Violations, 18 Nat. Ressourcess & Env't, 27, 31 (2004).
425. See id. (discussing the "significant opportunity for counsel of entity to participate in the process with the goal of persuading the authorities that a particular case is not worthy of criminal prosecution").
426. Jean Barrett, supra note 4, at 1421.
427. See generally Alexander et al., supra note 321, at 418 (arguing that corporations pay higher criminal fines since adoption of the Guidelines).
428. See supra notes 372 and 373 and accompanying text.