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Sentencing the Green-Collar Offender: Punishment, Culpability, and Environmental Crime

NCJ Number
Journal of Criminal Law and Criminology Volume: 95 Issue: 1 Dated: Fall 2004 Pages: 133-276
Michael M. O'Hear
Date Published
144 pages
This article presents the first comprehensive analysis of Federal sentencing for environmental crimes.
The article has both descriptive and prescriptive objectives. Descriptively it shows how the environmental criminal enforcement system may cast a net that draws in violators with low culpability, whose conduct is relatively blameless as measured by harm, dangerousness, and intent. Although an empirical analysis of sentencing data indicates such violators are unlikely to receive lengthy prison terms consistently, such violators are at the mercy of a judge who may or may not use his/her discretion to "depart" from a prescribed sentencing range in order to render a just sentence. On the other hand, the defendant with high culpability may receive the same lenient sentence that may be accorded defendants with low culpability. On the prescriptive side, this article proposes a broad reform agenda for the environmental sentencing guidelines. It argues that the guidelines should make sentence length proportionate to culpability; that they should mandate a broad inquiry into such factors as harm, dangerousness, and intent; and that, in certain limited circumstances, the defendant's defensible misunderstanding of the law should result in sentence mitigation. 9 tables, 692 notes, and appended proposal for revised environmental guideline to replace Sections 2Q1.1, 1.2, and 1.3 and a listing of appellate cases and decisions that interpret environmental guidelines