Prosecutorial Discretion and Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014

Abstract

In a 2014 article entitled “Prosecutorial Discretion and Environmental Crime,” I presented empirical data developed by student researchers participating in the Environmental Crimes Project at the University of Michigan Law School. My 2014 article reported that 96 percent of defendants investigated by the United States Environmental Protection Agency and charged with federal environmental crimes from 2005 through 2010 engaged in conduct that involved at least one of the aggravating factors identified in my previous scholarship, namely significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations. On that basis, I concluded that prosecutors charged violations that included those aggravating factors in nearly every case over a six-year period—and that defendants who committed environmental violations that did not involve one of those aggravating factors were unlikely to face criminal charges. In this Article, I provide the latest data from the Environmental Crimes Project, which now includes defendants charged from 2005 through 2014. I again find that most defendants charged with federal environmental crimes committed violations that involved at least one of the four aggravating factors, with the levels even higher (98 percent of all defendants). I identify shifts in the data, the most notable of which are a dramatic drop in the number of cases and defendants charged during the last year of our data, a significant increase in the number of criminal charges brought under the Clean Air Act for non-asbestos abatement violations, and a nearly 40 percent increase in the percentage of defendants operating outside the regulatory system. I assess trends since Supreme Court decisions that restricted Clean Water Act jurisdiction and made federal sentencing guidelines advisory, and I analyze cases that fall outside my normative model and may pose questions about how prosecutors exercised their discretion. In addition, for the first time, I provide outcome data regarding environmental crime, which demonstrates that overall conviction rates are higher for environmental crime than in the federal system generally and for regulatory crime in particular, but are not as robust at trial. I also provide incarceration data, which shows that fewer environmental defendants are incarcerated than other regulatory crime defendants. I analyze whether there is any correlation between incarceration and the statutes charged, the presence of aggravating factors, or whether defendants plead guilty or are convicted after trial. The incarceration data shows a statistically significant correlation between the number of aggravating factors and whether a defendant is incarcerated. The incarceration data also shows a strong correlation between conviction at trial and incarceration, with defendants who are convicted at trial more than twice as likely to be sentenced to a period of incarceration than defendants who pleaded guilty.