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Journal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability anronmental CrimeMichael M.Ơ HearFollow this and additional works at: https://scholarlyconunons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice CommonsRecommended CitationMichael M. O'Hear, Sentencing the Green-Collar Offender: P Sentencing the Green-Collar Offender- Punishment Culpability anunishment, Culpability, and Environmental Crime, 9S J. Crim. L. & Criminology 133(2004-2005)This Criminal Law Is brought to you far free and open acceSentencing the Green-Collar Offender- Punishment Culpability an
ss by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Cnmmolcgy by an authoJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability an004 by Northwestern University, School of LawVol. 95, No. IPrinted in U.S.A.SENTENCING THE GREEN-COLLAR OFFENDER: PUNISHMENT, CULPABILITY, AND ENVIRONMENTAL CRIMEMICHAEL M. O’HEAR’Federal law regulates waste management and pollution emissions through an intricate system of administrative rules and p Sentencing the Green-Collar Offender- Punishment Culpability anermits.* 1 Violations of these legal requirements may result not only in civil money penalties, but also in criminal prosecution.2 Indeed, criminal enSentencing the Green-Collar Offender- Punishment Culpability an
forcement—an unusual occurrence in environmental law until well into the 1980s—has steadily increased in frequency for two decades.3 The phenomenon haJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability ans.4Associate Professor, Marquette University Law School (michael.ohear@ marquette.edu). J.D., Yale Law School, 1996; B.A., Yale College, 1991. Thanks to Jason Czamezki, Daniel Freed, Eric Goldman, Christine Hurt, Joseph Kearney, Greg O’Meara, Stephanie Stem, Sandra Guerra Thompson, and Ronald Wright Sentencing the Green-Collar Offender- Punishment Culpability an for helpful comments on an earlier draft. Thanks also to Marquette University Law School, which supported this work with a generous research grant, aSentencing the Green-Collar Offender- Punishment Culpability an
nd to Donald Conty and Kristin Eisenbraun for their diligent research assistance.1For a brief summary of the federal environmental regulatory regime, Journal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability anber of defendants prosecuted in criminal environmental cases increased by more than ten-fold between 1984 and 2001. See infra Pan I.B and text accompanying note 70.'' Recent books on the subject include Ronald G. Burns & Michael J. Lynch, Environmental Crime: a Sourcebook (2004); Environmental Crime Sentencing the Green-Collar Offender- Punishment Culpability an: Enforcement, Policy, and Social Responsibility (Mary Clifford ed., 1998); Environmental Crime and Criminality: Theoretical and Practical Issues (SalSentencing the Green-Collar Offender- Punishment Culpability an
ly M. Edwards et al. eds., 1996). Recent articles on environmental criminal law include J. Michael Bradford, Environmental Crimes, 45 s. Tex. L. Rev. Journal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability anractices]’, Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 Tul. L. Rev. 487 (1996); Kathleen F. Brickey, The Rhetoric of Environmental Crime: Culpability, Discretion, and Structural Reform, 84 1OWA L. Rev. 115 (1998) [hereina Sentencing the Green-Collar Offender- Punishment Culpability anfter Brickey, Rhetoric]-, Colin Crawford,133134MICHAEL M. o ’HEAR[Vol. 95In particular, scholars have debated the mens rea requirements for environmenSentencing the Green-Collar Offender- Punishment Culpability an
tal crime, with some arguing that these requirements should be made more stringent so as to reduce the risk of convicting environmental defendants forJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability anocess has virtually escaped scholarly attention: sentencing.6 This gap in the literature is surprising and unfortunate for atCriminal Penalties for Creating a Toxic Environment: Mens Rea, Environmental Criminal Liability Standards, and the Neurotoxicity Hypothesis, 27 B.c. Envtl. Aff. L. Rev. 341 (2 Sentencing the Green-Collar Offender- Punishment Culpability an000); Michael Dore & Rosemary E. Ramsay, Limiting the Designated Felon Rule: The Proper Role of the Responsible Corporate Officer Doctrine in the CrimSentencing the Green-Collar Offender- Punishment Culpability an
inal Enforcement of New Jersey's Environmental Laws, 53 Rutgers L. Rev. 181 (2000); Jeremy Firestone, Enforcement of Pollution Laws and Regulations: AJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability an01, 20 Va. Envtl. LJ. 47 (2001); Andrew c. Hanson, Section 309(c) of the Clean Water Act: Using the Model Penal Code to Clarify Mental State in Water Pollution Crimes, 20 Pace Envtl. L. Rev. 731(2003); Elizabeth M. Jalley et al., Environmental Crimes, 39 Am. Crim. L. Rev. 403 (2002); Paul D. Kamenár Sentencing the Green-Collar Offender- Punishment Culpability an, The Environmental Sentencing Guidelines Are Fatally Flawed and Unreasonable, 8 Md. J. Contemp. Legal Issues 97 (1997); Alfred J. Kuffler, ProsecutioSentencing the Green-Collar Offender- Punishment Culpability an
n of Maritime Environmental Crimes Versus OPA-9ƠS Priority for Response and Spill Prevention: A Collision Avoidance Proposal, 75 Tul. L. Rev. 1623 (20Journal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability aneo. L.J. 2407 (1995) [hereinafter Lazarus, Integration]-, Richard J. Lazarus, Mens Rea in Environmental Criminal Law: Reading Supreme Court Tea Leaves, 7 Fordham Envtl. L.J. 861 (1996) [hereinafter Lazarus, Tea Leaves]-, Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: T Sentencing the Green-Collar Offender- Punishment Culpability anhe Environmental Example, 25 Envtl. L. 1165 (1995) [hereinafter Mandiberg, Mental State]-, Susan F. Mandibcrg, Fault Lines in the Clean Water Act: CriSentencing the Green-Collar Offender- Punishment Culpability an
minal Enforcement, Continuing Violations, and Mental State, 33 Envtl. L. 173 (2003); Susan F. Mandiberg, Moral Issues in Environmental Crime, 7 FordhaJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability an the Rational Polluter: Rethinking the Role of Rational Actor Models in Environmental Law, 89 Cal. L. Rev. 917 (2001); Thomas Richard Uiselt, What a Criminal Needs to Know Under Section 309(c) of the Clean Water Act: How Far Does "Knowingly" Travel?, 8 Envtl. Law. 303 (2002); David A. Barker, Note, Sentencing the Green-Collar Offender- Punishment Culpability anEnvironmental Crimes, Prosecutorial Discretion, and the Civil/Criminal Divide, 88 Va. L. Rf.v. 1387 (2002); David c. Fortney, Note, Thinking Outside tSentencing the Green-Collar Offender- Punishment Culpability an
he "Black Box": Tailored Enforcement in Environmental Criminal Law, 81 Tex. L. Rev. 1609(2003).5See, e.g., Hanson, supra note 4, at 764-67; Lazarus, IJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability an Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 Tul. Envtl. L.J. 187, 256 (1993). For a more complete description of the scholarly debate over mens rea for environmental crimes, see infra Part III.6The most significant scholarly work on environmental sentencing has been that of Professor Sentencing the Green-Collar Offender- Punishment Culpability anMark Cohen. See, e.g., Mark A. Cohen, Corporate Crime and Punishment: A Study of Social Harm and Sentencing Practice in the Federal Courts, 1984-1987,Sentencing the Green-Collar Offender- Punishment Culpability an
26 Am. Crim. L. Rev. 605 (1989) [hereinafter Cohen, Corporate Crime]-, Mark A. Cohen,2004]ENVIRONMENTAL CRT ME135least three reasons. First, in a worJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and Envir Sentencing the Green-Collar Offender- Punishment Culpability anues are much more likely to be litigated in environmental cases than the finer points of the substantive law, such as the mens rea requirements.Second, the past decade has witnessed a remarkable growth in the volume of both the published case law and the publicly available empirical data on environm Sentencing the Green-Collar Offender- Punishment Culpability anental sentencing. These developments stem from the implementation of the United States Sentencing Guidelines, which haveJournal of Criminal Law and CriminologyVolume 95Issue I FullArticle 3Fall 2004Sentencing the Green-Collar Offender: Punishment, Culpability, and EnvirGọi ngay
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