In the summer of 1992, a little known government group, formally called the Advisory Working Group on Environmental Sanctions ("Advisory Group"), began developing recommended sentencing guidelines for organizations convicted of federal environmental offenses ("Working Draft"). On Mar. 5, 1993, the Advisory Group published its Working Draft for public comment seeking substantial input."
While preliminary and incomplete, the Working Draft should be of great concern to the regulated community. It provides the basis for developing guidelines for the sentencing of organizations convicted of federal environmental offenses. It proposes significant increases in the severity of criminal sanctions for organizations, and it contains detailed and elaborate requirements for auditing and monitoring environmental compliance. These proposals could set the standard by which the government measures and evaluates the quality of an organization's environmental compliance program.
Until 1987, federal courts had broad discretion in sentencing individuals and organizations convicted of most federal criminal offenses. The courts had so much discretion that individuals convicted of the same offense could receive widely disparate sentences: one could receive 20 years in prison and another simply be placed on probation. In 1984, Congress created the U.S. Sentencing Commission ("the Commission") as an independent federal agency to eliminate this disparity in sentencing, to develop and promulgate mandatory guidelines for sentencing, and to ensure fair and just punishment.
Three years after its creation, the Commission promulgated guidelines for the sentencing of individuals "Individual Guidelines"). These Guidelines set forth a formula for calculating the severity of a crime, assessing the criminal history of an individual and determining the mandatory period of incarceration. With very few exceptions, federal courts have been required to follow this formula and to impose the requisite period of incarceration. In this way, perceived problems associated with too much judicial discretion at sentencing were resolved.
In 1991, the Commission promulgated guidelines for the sentencing of organizations ("the Organizational Guidelines') which apply to all forms of corporations, partnerships, associations, unions, trusts, and pensions. The Organizational Guidelines set forth a detailed formula for determining the sentence for organizations convicted of most federal offenses. Because organizations cannot be imprisoned, the Organizational Guidelines focus on restitution, remediation, and financial penalties(1) as the primary criminal sanctions against organizations.
Under the Organizational Guidelines, provisions for calculating fines explicity excluded fines for environmental offenses. The Commission reasoned that environmental offenses created unique and complicated issues in sentencing and that it should study these issues further. The Commission created a special Advisory Group, which is comprised of 16 individuals with expertise in environmental and/or corporate criminal law. The group includes professionals from the Environmental Protection Agency (EPA), Dept. of Justice, academia, environmental groups, corporate legal departments, and private practice. This group has produced the Working Draft, which is now undergoing public comment and revision.
The Working Draft sets forth three major criminal sanctions for the sentencing of organizations convicted of federal environmental offenses. They are: remediation/resititution, fines, and probation.
Remediation/Restitution: The Working Draft does not set forth any special rules for considering and applying restitution/remediation for environmental crimes. Rather, it simply incorporates by reference the general restitution/remediation provisions in the Organizational Guidelines. Whenever practicable, the sentencing court must order the organization to remedy the harm caused by the offense. …