Environmental Justice in Criminal Sentencing

Tracy D. Hester
thester@bracepatt.com

Environmental justice has become a familiar – and contentious – component of environmental civil enforcement and permitting. This policy has now appeared in a new and more troubling arena: the calculation of sentences for federal environmental crimes. By characterizing populations protected under environmental justice policies as “vulnerable victims” under the Sentencing Guidelines, this tactic has upped the ante for defendants convicted of environmental crimes that affect minority communities. The injection of volatile racial issues into environmental criminal sentencing risks misapplication of the enhancement and poses difficult evidentiary and policy concerns.

The United States Sentencing Guidelines (Guidelines) set out the process to calculate recommended sentences for newly convicted defendants. The Guidelines use specific enhancing and mitigating factors to adjust the base level offense assigned to a crime, and they then translate these scores into a proposed sentence or fine. One important sentencing factor lies in enhancements for crimes meant to prey on the helpless and weak. Under Section 3A1.1b of the Guidelines: “If the defendant knew or should have know that a victim of the offense was a vulnerable victim, increase [the base level offense score] by 2 levels. If (A) subdivision (1) applies, and (B) the offense involved a large number of vulnerable victims, increase the offense level determined under subdivision (1) by 2 additional levels.” Guidelines, § 3A1.1(b) (2002) (“Hate Crimes or Vulnerable Victims”). The Application Notes for Section 3A1.1(b) explain that this enhancement applies if the victim is “unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” Id. at Application Note 1.

Some prosecutors have sought to classify environmental violations that potentially affect minority communities as crimes against “vulnerable victims.” This enhancement can have severe consequences in environmental cases. If, for example, an environmental violation resulted in the exposure of a minority community to a release of potentially hazardous substances, the defendant could face an upward adjustment of four levels. This increase can substantially lengthen the defendant’s final sentence.

The use of environmental justice for sentencing has arisen in two contexts. First, some recent sentencing decisions have addressed the use of untrained and undocumented workers for asbestos abatement. At least one case referred to an effort by the United States to include an upward enhancement for hiring such an abatement crew as a crime against “vulnerable victims.” See, e.g., U.S. v. Ho, – F.3d –, No. 01-20460 (5th Cir. Oct. 31, 2002). Cf. U.S. v. Bragg, 207 F.3d 394 (7th Cir. 2000) (using residents from homeless shelter as asbestos abatement crew merited enhancement for crime against vulnerable victim). Of course, this enhancement may also reflect the victims’ lack of economic or educational resources rather than their race. EPA policies, however, include purely socio-economic disparities as environmental justice concerns.

Other prosecutions have explicitly raised environmental justice issues during trial as well as sentencing. In U.S. v. Jackson and U.S. v. Peters, No. 1:98CR00129-001 (E.D. Tex., judgment imposed Aug. 14, 2002), on appeal, No. 02-41176 (5th Cir. 2002), the United States obtained convictions of a chemical plant’s manager and environmental manager for conspiracy to provide false reports of benzene releases as well as a failure to comply with benzene wastewater tank NESHAP requirements. During the trial, the prosecution called Samuel Coleman, the director of the Enforcement and Compliance Division of U.S. Environmental Protection Agency Region 6 in Dallas, as a witness. During his direct testimony, Mr. Coleman was asked whether the adjoining community affected by the misreported releases constituted an environmental justice zone. Mr. Coleman replied that it was, and his testimony later supported the introduction of EPA’s Environmental Justice Strategy as evidence. In both its opening and closing statements, the government referred to the status of the adjoining community as an environmental justice area. After Jackson and Peters were convicted, the sentencing report recommended an enhancement of their sentences for criminal acts affecting a vulnerable victim. Both defendants objected to this proposed enhancement, and they noted that “the upward adjustment based upon a proposed finding that a certain community was a ‘vulnerable victim’ under the Sentencing Guidelines raises additional complex issues.” Defendants’ Joint Motion for a 45-Day Extension to Object to Presentence Investigation Report at 2 (Aug. 24, 2000). At the sentencing hearing, the judge did not discuss this enhancement in his calculation of the final sentence.

Some environmental criminals will undoubtedly deserve greater sentences because they have committed crimes with full intent and knowledge of their victims’ vulnerability. Nonetheless, this enhancement should be used in environmental justice cases with great caution. Section 3A1.1(b) of the Guidelines focuses on criminals who knew or should have known of their victims’ powerlessness rather than defendants whose crimes merely happen to affect vulnerable persons. The Application Note for section 3A1.1(b) of the Guidelines explains that this subsection “usually applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have know of the victim’s unusual vulnerability. The adjustment would apply, for example, in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim. But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile . . ..” Id. at Application Note 2 (emphasis added).

Absent evidence that environmental criminals held a similar level of knowledge about their victims, a release to the environment is more apt to simply affect the “general public” rather than target a specific environmental justice community. To hold otherwise will risk automatically imposing greater sentences on some environmental defendants simply because their crimes took place near an environmental justice community. Defense counsel should note, however, that the Guidelines do not require proof that the defendants intentionally targeted the victims on account of their vulnerability. U.S. v. Bragg, supra, 207 F.3d at 400; U.S. v. Grimes, 173 F.3d 634, 637 (7th Cir. 1999).

The use of environmental justice as a sentence enhancement has made only a few initial appearances. Nonetheless, defense counsel should pay close attention to these issues during trial. For example, the methodology used to identify environmental justice areas remains hotly contested. Defense counsel may also want to challenge the introduction of such evidence as irrelevant and prejudicial absent proof of that the defendant knew, or should have known, that the crime focused on such victims or communities. With environmental justice as a policy goal and civil enforcement aim of the EPA and other federal agencies, environmental justice will likely grow in importance for future sentencing proceedings.