Crimes against Nature: The New Vice Crusade Is Turning Justice Upside Down

By Henderson, Rick | Reason, December 1993 | Go to article overview

Crimes against Nature: The New Vice Crusade Is Turning Justice Upside Down


Henderson, Rick, Reason


In 1987 Charles Donahoo's company, Charlie's Wrecking and Salvage Inc., demolished a plastics plant, releasing one pound of asbestos fibers from insulation into the atmosphere. In 1989 Donahoo made history. For not telling regulators about the pound of fibers, he became the first person convicted of a felony under the Comprehensive Environmental Response, Compensation, and Liability Act, better known as Superfund. He was sentenced to three years in prison for that crime, plus another year under the 1970 Clean Air Act.

But Donahoo was lucky. The judge reduced his prison term to six months with three years of probation and fined him only $75. Had he been convicted a few months later, such leniency would have been impossible. In 1989 the U.S. Supreme Court upheld the authority of the U.S. Sentencing Commission to impose mandatory prison terms for what judges once regarded as regulatory infractions. If the commission's guidelines on environmental crimes had been in place when Donahoo was convicted, he would still be in prison today.

Donahoo's story, though particularly egregious, is not an isolated case. While most of the country was focused on the war on drugs, the Bush administration was creating a more lasting legacy, a new category of vice crime: the environmental offense. Like laws against drug use or prostitution, environmental prosecutions are meant not to protect persons or property but to send a message about values. So environmental-law enforcers are subject to continuing pressure to up the ante, to send a stronger message through more arrests and prosecutions, stiffer penalties, and a wider range of crimes.

Traditional criminal laws can punish deliberate actions to harm persons or property, such as poisoning a water supply or dumping debris on someone else's land. Civil codes can require cleanups and monetary damages in accident cases. But neither category of traditional law pays homage to green values. As then-Attorney General Richard Thornburgh told the annual meeting of the National District Attorneys Association in 1989, "A polluter is a criminal who has violated the rights and the sanctity of a living thing--the largest living organism in the known universe--the earth's environment."

By defining all pollution as a crime, Thornburgh's speech marked a turning point. Environmental law was (and still is) a highly technical, jargon-filled field, more akin to tax or insurance law than homicide or robbery prosecution. The goal, until recently, was to deter polluters and clean up messes in the most efficient possible way.

Indeed, when University of California-Irvine law professor Joseph DiMento surveyed state and federal law enforcers for a 1986 book on environmental compliance, more than half "reported that when criminal sanctions are available |in environmental cases~ the enforcer does not pursue them." DiMento concluded, "Successful careers in the law will only rarely be made from pursuing pollution control criminals."

But today Thornburgh's attitude is widely shared by both politicians and the general public. "Judges |considering an environmental prosecution~ once asked, 'Is this a criminal case?'" says Joseph G. (Jerry) Block, the head of the Justice Department's Environmental Crimes Section from 1988 to 1991. "That's different now. Their attitude is, 'Kill the bastards.'"

Although the Environmental Protection Agency hired its first criminal investigators in 1982, criminal prosecutions remained limited to unusual cases until the Bush administration. In fiscal 1983, 40 federal environmental criminal indictments were handed down. All led to plea bargains or convictions, with penalties totaling $341,000 and five years of prison time. By fiscal year 1992, however, the number of cases had increased five-fold--to 191 criminal indictments leading to 104 pleas or convictions, $163 million in criminal fines, and 34 years of prison time. Justice Department statistics show that 94 percent of all the fines and penalties ever imposed and 69 percent of the actual prison time that will be served for environmental crimes were handed down from fiscal 1989 through 1992.

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