Discretion and the Criminalization.
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Discretion and the Criminalization.
The enforcement of federal environmental laws is complex. Prosecutors and judges play a critical role in determining which breaches to prosecute and what sanctions to impose. In the context of the Clean Water Act (“CWA”), discretion is employed within an institutional structure that includes marginal deterrence, criminal sanctions, substantial prosecutorial discretion, and judicial discretion limited by the Federal Sentencing Guidelines.
Following an explanation of the CWA’s institutional framework for enforcement, a discussion of the legal, economic, and criminal justice aspects of exercising discretion is presented.
It is stated that, while broad prosecutorial discretion is warranted on economic efficiency grounds, extending criminal consequences to results that lack offender intent or control will likely result in overcriminalization of environmental legislation.
Equally problematic, if court discretion is used to impose considerable downward deartures from the Federal Sentencing Guidelines, CWA enforcement will become trivialised.
Thus, aggressive prosecution risks causing over-deterrence and removing criminal sanctions’ moral stigma, whereas lenient criminal sanctioning weakens deterrence aims and diminishes the significance of breaching federal environmental law itself. The policy consequences of current punishment patterns, as well as future research needs, are also investigated.
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