Environmental Crime Prosecution:  Results of a National Survey.

                  
Series: NIJ Research in Brief
Published: November 1994
23 pages
49, 656 bytes

NCJ150310 (Based on full research report
NCJ 150043)

Environmental Crime Prosecution:  Results of a
National Survey

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Issues and Findings

Discussed in this Brief: The results of a
nationwide survey of local prosecutors in large
jurisdictions (populations more than 250,000) and
interviews with criminal justice and regulatory
personnel in 7 sites regarding environmental crime
prosecution in their communities.

Key issues: Local environmental crime prosecutions
increased dramatically between 1990 and the first
half of 1992. Since this field has become more
specialized, the researchers sought data on the
processes and factors local prosecutors use when
deciding if and how to prosecute environmental
crimes.

Key findings: 

o Approximately half of the large jurisdiction
prosecutors' offices surveyed operate special
environmental prosecution units.

o Over half of the offices assign full-time
prosecutors to environmental offenses and over
three quarters assign part-time prosecutors to
these cases.

o Most offices have seen a rise in environmental
crime cases over the survey period.

o The most common environmental offenses prosecuted
involve illegal waste disposal; the most common
substances involved in these offenses are hazardous
wastes.

o The most important factors in deciding to
prosecute environmental offenses are the degree of
harm posed by the offense and the criminal intent
of the offender. 

o The most significant factor for rejecting the
prosecution of environmental offenses is
insufficient evidence or inability to recognize
appropriate evidence; the least significant factor
for rejection of the prosecution is lack of
resources.

o Less than half of the local prosecutor offices
believed they can enroll in training to qualify as
experts in environmental investigation and
prosecution. 

Almost all surveyed and interviewed indicated a
need for increased technical assistance and
training to improve the performance of
environmental prosecution unit personnel. The
creation of local prosecutor-led environmental task
forces may be the best way to bring together needed
expertise and resources to prosecute environmental
crime. 

Target audience: Local and Federal prosecutors,
attorney generals, environmental regulatory
specialists, health department officials, and
researchers.
----------------

Specialization in discrete crime areas is not a new
practice for local prosecutors. Over the past two
decades, America's district attorneys, particularly
in offices representing densely populated
jurisdictions, have gravitated to specialized
prosecutorial services in such areas as narcotics
trafficking, domestic violence, and child abuse.
Specialization has resulted, largely, as a response
to the public's growing perception of these actions
as "criminal" and as an organizational answer to
the burgeoning volume of reports of such behavior.
After years of growing pains in identifying
critical needs, defining boundaries of
responsibility, and seeking the best methods for
prosecuting these types of cases, many prosecutors
have become specialists in these areas. 

Environmental crime prosecution, a field that mixes
elements of law, public health, and science,
emerged as a new area of such specialization, and
this study, sponsored by the National Institute of
Justice, sought to determine the status of
environmental crime prosecution at the local level
throughout the United States. 

Virtually all individuals surveyed during this
study regarded environmental crimes as essentially
criminal activity. Prosecutors, investigators, and
other task force personnel employed basic law
enforcement techniques in the investigation and
prosecution of these crimes. The approach was to
simplify the cases using basic law enforcement
techniques. Some prosecutors viewed these cases as
"who done it" crimes; others said they are similar
to other types of criminal cases, differing only in
the amount of involvement by scientific experts. 

As with other criminal prosecutions, prosecutors
are now willing to proceed in environmental cases
with only circumstantial evidence. This is an
important development for environmental prosecutors
who, in the past, were reluctant to prosecute a
case without direct evidence.

The study involved a national survey of prosecutors
and interviews with prosecutors, law enforcement,
and regulatory personnel at seven sites. This
Research in Brief summarizes the research
methodology, highlights the findings, and analyzes
the status of environmental crime prosecution in
the United States.
Survey methodology

The purpose of the survey covering the 
21/2-year period 1990-June 1992 was to collect and
analyze data to identify major patterns of action,
preferences, and perceptions for a total analysis
of factors relating to the outcome of local
environmental crime prosecutions. It was
anticipated that survey results would facilitate
(1) an explanation of differences in local
prosecution program implementation and prosecution
outcomes among jurisdictions, (2) a listing of
explanatory factors, and (3) a rating of the
relative importance of each of the factors as they
relate to the effective prosecution of
environmental crime at the local level. It was
expected that the level of complexity/
sophistication of environmental crime units in
District Attorneys' offices would range over the
spectrum from very low to very high.

The survey instrument was devised by the American
Prosecutors Research Institute's (APRI's) Research
Center and the National Environmental Crime
Prosecution Center (NECPC), with assistance from
the project's Environmental Crime Advisory
Committee. The questionnaire depended mainly on
closed-ended, scaled queries in which response
ranges could be reliably structured but also
included an open-ended format to provide a wide
range of responses. 

Based upon prior knowledge of the level of
environmental offense prosecutions within local
prosecutors' offices, the researchers expected the
highest level of prosecution activity to be
concentrated in larger jurisdictions. Consequently,
2 separate questionnaires were designed: 1 for
rural/suburban jurisdictions serving populations up
to 250,000 and 1 for offices representing
jurisdictional populations over 250,000. 

The first questionnaire, sent to a random sample of
offices representing populations between under
1,000 and 250,000, was selected from the National
District Attorneys Association's (NDAA's) master
list. The questionnaire contained general inquiries
on the level of environmental criminality, volume
of environmental prosecutions, and reasons for the
absence of such prosecutions. The second, much more
detailed questionnaire, posed questions in these
categories: (1) organizational structure of the
office, (2) extent of environmental offense
prosecution, (3) offense characteristics, (4)
offense identification, (5) decisions to prosecute
environmental offenses, (6) ability/willingness to
prosecute environmental offenses, (7) evidentiary 
standards/technical needs, and (8) plea and trial
issues. 

This questionnaire was mailed to all local
prosecutors' offices representing jurisdictional
populations of over 250,000. Content and format of
the questionnaire were constructed with the
assistance of local prosecutors advising NDAA
within the organization's Environmental Protection
Committee. These representatives served as the core
group for pretesting of instruments.

Initial mailings were followed by multistage mail
and telephone contacts to maximize response rates.
As predicted, the highest response rates came from
those prosecutors' offices representing
jurisdictions of over 250,000 (100 of 178 or 56
percent).1 Since response rates for the smaller
jurisdictions were low (248 of 882 or 28 percent)
they are not analyzed here. However, this low
response rate for small jurisdictions may be an
indication of a lack of environmental crime
prosecutions in these regions.

Survey results

Thirty-two States responded to the large
jurisdiction survey. The highest concentration of
responses by State were California (15), Florida
(11), New York (9), New Jersey (8) and Texas (7).2
This section focuses on these results.

Among several key survey findings were the data
showing that local district attorneys were
performing the majority of environmental
prosecutions. During the first 6 months of 1992,
district attorneys accounted for 882 environmental
crime prosecutions in jurisdictions whose
populations exceeded 250,000. 

Survey results also point to the large increase in
local environmental prosecutions between 1990 and
1992. The following sections highlight the data
revealed by the survey.

Organizational structure

Data were collected regarding the organizational
structure of prosecutor offices in large
jurisdictions:

o Roughly half of the 100 offices responding to
this question reported the existence of special
prosecution units within their organizational
structure.

o Thirty of 63 offices (48 percent) reported that
they did not assign full-time prosecutors to
specifically prosecute environmental offenses. 

o Twenty-three of 63 offices (37 percent) did
report the assignment of at least 1 full-time
prosecutor to environmental offenses, and 9 (14
percent) reported the assignment of between 2 and 4
full-time assistant prosecutors. 

o Thirty-three of 73 offices (45 percent) reported
the assignment of at least 1 part-time prosecutor,
15 (21 percent) reported the assignment of 2 per
office, 8 (12 percent) reported the assignment of
between 2 and 4, and 2 (2 percent) reported the
assignment of between 16 and 18 part-time
prosecutors per office. 

Similarly, the assignment of full-time
investigators to environmental offenses was found
to be low with 41 (67 percent of the 61 offices
responding to this question) refraining from
assigning any full-time investigators and 9 (15
percent) assigning 1 per office. A higher
percentage (43 percent) of 70 responding offices
assigned part-time investigators: 21 (30 percent)
reported the assignment of at least 1 part-time
investigator, and 10 (13 percent) reported the
assignment of between 2 and 9 per office.
Fifty-seven of the 97 offices responding to this
question (59 percent) reported that they relied on
other law enforcement agencies to assign
investigators to handle environmental offense
investigations.

The vast majority of offices responding were found
to assign active roles to prosecutors and demand
that they assume a continuous role in cases to be
prosecuted, from case initiation to disposition.
Sixty-eight of 95 responding offices (71 percent)
indicated that prosecutors in their offices were
routinely active participants in the investigative
processes of environmental offense cases.
Furthermore, 71 of 87 responding offices (82
percent) added that all environmental offense cases
were prosecuted vertically. Offices were split on
the issue of task force participation with 42 of 96
responding offices (44 percent) acknowledging
office participation in environmental crime task
forces and 54 (56 percent) reporting
nonparticipation.

Extent of environmental offense prosecutions

To assess the volume of environmental offense
prosecutions carried out, offices were asked to
report the number of criminal and civil
environmental offense prosecutions for 1990, 1991,
and the first 6 months of 1992. Results show a
steady rise in these prosecutions, with pronounced
increases for criminal cases.

As exhibit 1 illustrates, civil cases rose 11
percent between 1990 and 1991 from 286 to 318 and
then escalated 48 percent to 470 cases in the first
6 months of 1992. The surge in criminal
prosecutions during the same time period is
significantly more striking. Between 1990 and 1991,
criminal prosecutions of environmental offenses in
the sample nearly doubled from 381 to 756--a 98
percent increase. In the first 6 months of 1992,
criminal prosecutions eclipsed those for all of
1991, rising from 756 to 882, a 17-percent increase
and a 132-percent increase over the criminal
prosecution total for 1990.

Looking at these figures from a different
perspective, the number of environmental cases
prosecuted yearly per office can be examined. Data
show a sharp decline in offices prosecuting no
environmental criminal cases per year and, overall,
a gradual increase in offices prosecuting more
criminal cases throughout the 2-year time period
studied. In 1990, 39 percent of 70 responding
offices prosecuted no environmental criminal
violations, and 57 percent prosecuted no
environmental civil violations. In contrast, only
16 percent had prosecuted more than 10 criminal
cases that year, and 9 percent had prosecuted more
than 10 civil cases. 

By 1991, the number of offices (78 responded to
this question) prosecuting no criminal cases had
declined to 27 percent while a noticeable increase
had occurred in the prosecution of criminal cases,
especially in those offices prosecuting over 10
criminal cases for the year. In the first 6 months
of 1992, only 19 percent of the 78 responding
offices prosecuted no criminal cases; there were
minimal increases in criminal cases in those
offices prosecuting over 10 cases annually.
Of special note in this comparative analysis is the
change in the mean, median, and maximum number of
criminal and civil environmental prosecutions among
the three time periods and the implications of
these changes. While the medians for yearly case
totals changed little for both criminal and civil
case categories, mean and maximum case prosecutions
changed dramatically. Since medians represent the
50th percentile of collected case data, they are
less likely to be affected by extreme cases (i.e.,
small numbers of offices representing high
environmental case volume) and are more reliable as
representations of averages in instances where the
ranges are wide. While neither criminal case nor
civil case medians varied widely, the mean and
maximum number of criminal and civil cases changed
radically. The most dramatic example is the
criminal case maximums, which rose from 79 in 1990,
to 100 in 1991, to 154 in the first half of 1992.
In other words, while most offices progressively
prosecuted more environmental cases a relatively
small number of offices significantly increased
their criminal prosecution totals in 1991 and the
first half of 1992, and it is these offices that
had a measurable impact on the total number of
cases reported for the post-1990 time periods.

Offense characteristics

To discern the principal characteristics of
environmental cases prosecuted by local
prosecutors, respondents were asked about the types
of offenses prosecuted and the types of wastes
involved in the offenses. The types of offenses
were categorized as:

o Improper dumping/disposal of solid, hazardous,
medical/infectious or "other" wastes (disposal
violations).

o Improper hauling/transporting of such wastes
(transportation violations).

o Improper storage/stockpiling of such wastes
(storage violations).

o Improper treatment of such wastes (treatment
violations) and other violations.

Responses revealed that, overall, disposal
violation prosecutions dominated within the
caseloads of survey respondents. Slightly more than
half of the 76 responding offices reported that
over 50 percent of their prosecuted cases involved
disposal violations (see exhibit 2). Furthermore,
within this group one-third reported that over 90
percent of cases prosecuted were for disposal
violations. In contrast, only 6 percent of the 63
responding offices indicated that transportation
violations accounted for more than half of their
prosecuted cases. The majority of the respondents
(64 percent) reported that transportation
violations accounted for a small portion (between 0
and 15 percent) of their total environmental
offense prosecutions. Similar findings were
reported for prosecutions for storage violations;
69 percent of the 63 responding offices said these
cases made up between 0 and 15 percent of their
environmental prosecutions. Treatment and other
violations represented negligible percentages of
total environmental prosecutions (Treatment--5
percent; Other--1 percent).

To discern the types of wastes involved in
prosecuted violations, the survey used the
categories defined by the Resource Conservation and
Recovery Act (RCRA): hazardous, solid,
medical/infectious, and other. Results show that
the typical case prosecuted by the surveyed offices
was for violations associated with wastes
considered to be hazardous. Nearly half of the
respondents reported that more than 50 percent of
their prosecutions involve hazardous wastes. This
percentage drops significantly for solid waste
violation prosecutions (slightly more than
one-quarter indicated that this category accounted
for more than 50 percent of their environmental
prosecution caseloads), and less than 3 percent
reported that medical/infectious waste violations
accounted for more than half of their caseloads.

Offense identification

The survey explored the manner in which
environmental offenses were identified by local
prosecutors' offices. Results may have implications
for developing awareness and reporting strategies
to assist local prosecutors in addressing more
environmental offenses. Respondents were asked to
indicate the most common methods of identifying
offenses at the local level--referrals from
environmental agencies, referrals from local law
enforcement, emergency responses, citizen reports,
proactive investigation by trained detectives, and
other. Of the 217 common methods reported, 75
responses (35 percent) indicated referrals from
environment agencies as the most common
identification method, with referrals from local
law enforcement following closely behind (61 or 28
percent). Emergency response and citizen reports
each registered only 14 percent and proactive
investigations was identified as a most common
method among only 7 percent of respondents.

Followup questions revealed a general lack of
prosecuter involvement in community programs
designed to help residents recognize and report
environmental offenses. When asked if prosecutors
had created programs in community awareness, public
relations, or education to develop the public's
ability to recognize and report offenses, only 18
of 95 responding offices (19 percent) answered
affirmatively. In addition, only 9 (10 percent)
reported developing environmental crime hotlines.
This situation may partially explain the survey's
findings of a low percentage of environmental crime
referrals by citizens. 

Finally, prosecutors were asked to what degree
local health agencies were responsive to
prosecution needs for technical assistance in their
investigations. Sixty of 97 responding offices (62
percent) reported that health agencies were
responsive, and only 10 (10 percent) said the
agencies were unresponsive.

Decisions to prosecute 

The process by which prosecutors decide to charge
environmental violations criminally was identified
as important because of the technical knowledge
needed to determine the level of harm caused by
pollutants, the often uncertain circumstances
surrounding determination of criminal intent, and
the discretion that local prosecutors possess in
deciding this issue. The survey revealed that only
13 offices (13 percent) have instituted specific
procedural guidelines for the decisionmaking
processes. 

Exhibit 2 illustrates what prosecutors felt were
the most significant factors in their decision to
prosecute environmental offenses criminally.
Prosecutors ranked the degree of environmental harm
as the most important factor, with 92 percent of
the 96 responding offices either agreeing or
strongly agreeing. The degree of criminal intent of
the offender and the offender's record also were
reported to play an important part in the decision
to prosecute criminally. 

Respondents were also asked about the alternative
aspect of this issue: What are the most important
reasons for rejecting the option to prosecute
criminally? Insufficient evidence was the most
significant factor cited in decisions to reject
criminal prosecution (76 percent of 100 responding
offices). Only 16 percent said lack of resources
was an important determinant. Another significant
reason for rejecting local criminal prosecution was
referral of cases to Federal and State agencies: 27
percent of local prosecutors surveyed said they
referred cases out of their offices, and 17 percent
said Federal and State agencies actively sought
cases from local prosecutors.

Respondents reported a higher level of willingness
to charge corporate directors and officers (76
percent) and management-level employees (73
percent) than to charge lower level employees (45
percent). Given that some offenses are the
culmination of criminal directives handed down to
lower level personnel, strong evidence against
these offenders may be used as a device to elicit
testimony against the upper level criminal
architects. Forty-two percent of the responding
prosecutors said they had granted immunity to an
employee in exchange for testimony against
corporate officers and managers, while 58 percent
indicated that they had never done so.

Forty percent of the 100 responding offices
confirmed that they had the option of using civil
proceedings in prosecuting environmental offenses.
Of those with civil jurisdiction, 37 of 40
responding offices (93 percent) believed that the
appropriateness of alternative civil statutes is a
significant factor in the decision of whether to
prosecute criminally. Twenty-four of 40 responding
offices (61 percent) responded that they were more
likely to proceed with a civil case if the
prosecution target was a corporate/business entity.

Seventy percent of 100 responding offices found
that case priority was fundamentally determined by
the level of harm or threat of harm involved in the
respective cases. One in three indicated that the
high profile of the offender was a factor and 22
percent noted the type of environmental offense
(i.e., hazardous waste, solid waste) was a factor.
Only 22 percent of the sample reported that they
had a preference for environmental cases that could
be investigated and prosecuted inexpensively.

Ability and willingness to prosecute

Traditionally, effective environmental prosecution
strategies and programs have been contingent on the
amount of system and public support offered and the
technical expertise and resources available to
prosecutors. 

Prosecutors pursuing environmental crime cases were
asked if they received a sufficient level of
support from the D.A. and staff, local government,
regulatory system, local law enforcement, local
judiciary, and the community. As anticipated, the
greatest percentage of 99 respondents agreed that
sufficient support was received from the DA's
office (70 percent agreeing or strongly agreeing).
Otherwise, prosecutors expressed similar levels of
adequate support from local governments, regulatory
agencies, and the community (61 percent, 58
percent, and 56 percent respectively). Respondents
said the lowest level of support came from local
law enforcement and the local judiciary (48 percent
and 39 percent respectively). However, a large
percentage of prosecutors had no opinion about
support from the local judiciary (35 percent) and
the community (30 percent). These responses most
likely reflect a lack of awareness of the level of
support from these two sources. 

The survey also attempted to gauge the extent of
resources available to local prosecutors to carry
out their duties effectively as environmental
prosecutors. Many expressed a general need for
additional resources to conduct their work
satisfactorily. Eighty-three percent of respondents
asserted that more resources are needed, 53 percent
believed that internal competition for office
resources adversely affects their environmental
prosecution programs, and 42 percent contended that
resources for the investigation and prosecution of
environmental crimes in their jurisdictions were
compromised by competing community economic
interests. Almost all respondents (96 percent)
agreed that technical assistance and training are
important to the performance of environmental
prosecution unit investigators.

To explore the range of alternative sources for
local prosecutors to supplement environmental
prosecutions, respondents were asked about the
potential for retention of fines/penalties and
forfeited assets. Only 33 percent of the 99
jurisdictions sampled were permitted by State law
to retain all or a portion of fines and penalties
generated by environmental cases. Forty-three
percent, however, stated that there were
alternatives available by which they could retain
such fines/penalties. A majority of the sampled
jurisdictions (59 percent) were found to be
authorized under State law to seek asset forfeiture
for environmental crimes. 

Evidentiary standards and technical needs

Since the prosecution of environmental offenses on
the local level often requires a high level of
technical knowledge, specific survey questions
concerned evidentiary standards and the use of
expert witnesses.

Prosecutors were asked to assess the environmental
regulations and laws in their jurisdictions that
governed prosecutorial actions. While 58 percent of
the 93 responding offices said that criminal
statutes governing environmental offenses in their
respective jurisdictions were effective, 69 percent
believed that environmental laws should be
consolidated into more comprehensive statutory
schemes. Over one-third viewed current statutes as
overly complex while another third considered them
adequate in terms of complexity. 

Local prosecutors generally believed that the use
of expert witnesses in environmental prosecutions
was quite effective, with 72 percent of 93
responding offices indicating that expert witness
testimony had influenced court decisions and 87
percent reporting that expert testimony had been
useful in helping to determine the facts of an
incident. A large portion of the respondents (70
percent) contended that their offices were willing
to spend the necessary money to hire expert
witnesses but, as exhibit 3 demonstrates, only 39
percent of prosecutors reported that training and
education was available to investigators,
detectives, and other law enforcement personnel to
transform them into special-area "experts."

Ninety-three respondents expressed a critical need
for the development of a centralized source for
available expert witnesses. Only 12 respondents (13
percent) revealed that their offices had created
pools of environmental crime experts. Furthermore,
91 percent of the total sample expressed a need for
national and regional lists of experts in a
multitude of environmental crime areas.

Plea and trial issues

The final section of the survey questionnaire
explored plea and trial issues. Only 28 percent of
69 respondents believed that the courts were
willing to impose terms of incarceration in these
cases. Sixty percent of 69 respondents claimed that
outside pressures to prosecute environmental
offenses (i.e., pressures by environmental interest
groups, community groups, media) can result in the
filing of environmental cases. One in four believed
that there is significant pressure by business/
labor groups to downgrade criminal charges in these
cases. Most of the 69 respondents (85 percent)
believed that the environmental offender's offer to
remediate or make restitution had an impact on case
disposition. Sixty-eight percent had no opinion on
whether EPA/State debarment policies had an effect
on obtaining environmental pleas. 

Discussion of results

There is no doubt that environmental crime can
affect all types of jurisdictions, regardless of
geographic size or population density. Prosecutors
in this field find they must nurture relationships
with the broad range of government agencies
necessary for prosecutorial success. And they are
required to muster support from a criminal justice
system and a public that can be, at times,
ambivalent about the environmental protection
cause. 

Policy and decision to prosecute

Through traditional prosecutorial discretion, the
local prosecutor can decide which cases will be
prosecuted and which types of charge will be made.
This discretion gives the prosecutor the power and
responsibility for making public policy decisions
that reflect certain priorities, such as public
health and safety. Their decisions influence the
way laws are enforced and, in turn, shape the
behavior of individual citizens. In deciding
whether to prosecute environmental offenses, local
prosecutors must not only be alert to factors
common in conventional cases (e.g., criminal
intent, reliability of evidence) but also factors
that are important in newly emerging offense areas
(e.g., potential public reaction, allocation of
resources sufficient to prosecute cases
effectively).

Environmental prosecutors must be technically
skilled enough to accurately determine criminal
intent associated with activities such as the
improper disposal and treatment of hazardous
wastes. In this they rely on the abilities of
criminal and regulatory investigators, with whom
they have close interaction. As both the
community's attorney against crime and a protector
of public welfare, the environmental prosecutor
will inevitably consider the degree of harm or
threat of harm posed by the offense as a
significant factor in the decision to prosecute as
was born out in this survey. 

By and large, local prosecutors said they believed
they had community support for their prosecutions
because the public has become more aware of the
effects of environmental crime and the
accomplishments of local environmental prosecutors.
But with this support comes a certain loss of
discretion: the extent of harm created by the
offense, the pressure of publicity, and the
influence of complaining victims can all limit the
prosecutor's discretion in potentially volatile
cases. As the survey results of local prosecutors
showed, the cumulative effect of these elements to
prosecute generally neutralizes any pressures that
arise from business/labor groups to withhold
prosecution. 

Prosecutors seemed to be less optimistic about the
level of support received from local police and the
judiciary. Neither professional group was perceived
by respondents as possessing the necessary
sensitivity to the consequences of environmental
violations. Respondents characterized local police
as an important source of original reports but a
source whose potential has not been completely
realized.

Resources--or more precisely, the lack of
resources--was cited as a factor in the decision of
whether to charge in less serious cases. Local
environmental prosecutors pointed out that they
often must compete with other specialized units for
limited funds, and they are often blocked by State
law from retaining fines generated by environmental
cases. Nonetheless, it appears that rejecting
prosecution primarily for these reasons was rare.
There was a common fear, however, that without
requisite resources to execute their dual public
health and law enforcement mandates, local
prosecutors would make balancing public harm versus
prosecution costs a routine part of the
decisionmaking processes.

Plea bargaining and trial issues

The local environmental prosecutor is obligated to
prepare each case as if trial were inevitable. This
is necessary to offset the plea negotiating
strengths of the defense attorney and to ensure
technical effectiveness in the courtroom if the
case does come to trial. Some of those surveyed
stated that environmental prosecutors have a moral
responsibility to discount plea bargaining efforts
and see that the public receives its money's worth.
Rejecting plea agreements is viewed, intuitively,
as strengthening the environmental prosecutions by
transmitting the unqualified message that local
environmental crime is intolerable. If a plea
agreement is anticipated, however, a tightly
prepared environmental case may attempt to convince
the defendant that remediation is the most
financially desirable alternative.

Upon coming to trial, the environmental crime case
can seriously test the communicative skills of the
average prosecutor. Environmental prosecutors at
the local level find themselves responsible for
understanding complicated technical aspects of risk
assessment, chemical properties, and sampling
analysis and demystifying all of this to the
satisfaction of judge and jurors alike. 

Compounding the difficulties are the handicaps the
average environmental prosecutor encounters:
inadequate funds for laboratory analysis,
insufficient training in trial techniques, and
deficiencies in effectively identifying expert
witnesses. Prosecutors surveyed, though, have not
succumbed to these setbacks. They have instead
moved to even the odds by: (1) mastering the use of
visual aids to simplify lengthy, esoteric
descriptions of chemical properties and processes,
(2) working with expert witnesses and regulators to
mesh their testimony with the capabilities of
juries to comprehend, and (3) supplying judges with
juror instructions tailored specifically to
environmental offenses.  

Limitations of the prosecutors' offices

Prosecutors noted several limitations that
significantly impede effective case management in
the environmental prosecution field. These
limitations affect case outcome, prosecutor
workload, and success of enforcement.

Prosecutors stressed the need for a network of
experts to support the investigative requirements
of an environmental crime case. Many jurisdictions
referred to these networks as task forces,
traditionally composed of law enforcement and
regulatory personnel. Within the environmental
prosecution field, however, such task forces must
include experts from other fields in order to
present witness testimony on scientific or
environmental matters. Problems that may arise
within these task forces (communications among
members, obtaining and preserving evidence,
confidentiality, and anticipating the needs of the
prosecution) are easily overcome through training. 

Many environmental crime prosecutors articulated
the need for better environmental crime statutes.
They particularly stressed the need for stronger
laws and laws that are consolidated in a more
coherent statutory scheme. Many also mentioned the
lack of model environmental crime legislation,
which limits uniform and comprehensive enforcement.

Future offense patterns and local prosecutor
response

Environmental crime prosecution at the local level
is currently at a crossroads. Having progressed in
urban areas from the embryonic years where skills
were largely self-taught and offenders were
relatively unsophisticated, local prosecutors must
now face evolving criminal behavior that--unless
sufficient training and technical support services
are available--could rapidly out-pace prosecutor
capabilities. Evidence from this study indicates
that local prosecutors will face more environmental
offenders considering the growth in numbers of
prosecutions over the 2 1/2-year survey period and
in numbers of attorneys proficient in potent
defense strategies. 

If past prosecutorial patterns hold true, local
environmental prosecutors will be called upon
primarily to prosecute incidents of illegal
disposal of hazardous wastes. Research tells us
that the countless small quantity waste generators
(SQG's) located throughout urban America are, for a
number of reasons, more likely to dispose of their
wastes criminally than are the large quantity waste
generators. Recently implemented amendments to the
Resource Conservation and Recovery Act place more
restrictive standards on SQG's than any they have
experienced before, making it extremely expensive
for many to comply with the law. Since
environmental crimes are in essence crimes of
"opportunity"--crimes in which offenders actively
search out and capitalize on conditions conducive
to successful crime commission--it is anticipated
that a greater number of experienced opportunists
will hatch inventive methods to dispose, transport,
store, or treat hazardous materials illegally and
evade detection.

According to responses, there is good reason to be
alert to those entrepreneurs who would exploit the
plight of SQG's, and sometimes the plight of the
average citizen clearing yard debris, in a stagnant
economy. These fairly mundane "bread and butter
cases" as one respondent put it, can be deceiving
because seasoned offenders tend to assess shrewdly
the possible harm criminal laws can pose to them.
Offenders are likely to avoid jurisdictions where
enforcement is strong and prosecution effective;
thus displacement of these offenses from urban
areas where enforcement may be tight into other
less populated settings is likely. While survey
results from local prosecutors' offices under
250,000 were inconclusive, they did offer some
insight into what may be a pattern of a rising
number of environmental crime prosecutions in rural
and suburban America.

Need for technical training

It is incumbent upon local environmental
prosecutors to enhance their competitive
technologies to keep pace and surpass those of
tomorrow's environmental criminals. Two major
findings culled from this study indicate the urgent
need for improved technical abilities: 

o Practically all those surveyed expressed a need
for increased technical assistance and training to
upgrade the performance of environmental
prosecution unit personnel.

o Less than half believed they can enroll in
training to qualify as experts in environmental
investigation and prosecution. 

These opinions were expressed by urban prosecutors,
many of whom are in the forefront of environmental
crime prosecution. Similar needs are likely in
suburban and rural jurisdictions. Some of the most
important topics that demand training and technical
assistance on the local level include the
following:

o Trial skills that incorporate the use of
demonstrative evidence to simplify what can be
complex technical concepts and to dramatize the
seriousness of the offenses committed. For example,
instruction is needed on the utilization of
three-dimensional computer animation to reenact
disposal crime scenes, criminal acts, and the flow
of disposed wastes.

o The effective use of expert witnesses in the
courtroom and the admissibility of scientific
evidence at trial. Substantiating the level of
public harm posed by illegally disposed wastes may
be a key factor in the decision to charge and in
the severity of penalties imposed. 

o The efficacy of the full scope of sentencing
options--options that offer differential treatment
to situational offenders and career offenders.
Training conducted by experienced local prosecutors
can acquaint environmental prosecutor novices with
the building of professional relationships that
facilitate sensible sanctioning (i.e., local
judge-prosecutor-probation officer exchanges that
recommend reasonable penalties related to case
circumstances). Education on the use of sanctions,
such as the public acknowledgment of wrong-doing in
the local media and employment termination of
offending corporate executives, can help steer less
experienced prosecutors in these directions when
more punitive actions are either inappropriate or
unlikely to be imposed.

o The constructive use of task force models to
advance the mission of environmental prosecutions.
Especially in metropolitan areas, efforts have been
made to form prosecutor-led environmental task
forces. These efforts are at a stage of development
comparable to where prosecutor-led narcotics task
forces were approximately a decade ago. As the pace
of environmental crime quickens in urban areas and
spreads to suburban/rural regions, the call for
effective crime control will intensify. Based upon
the best information to date, environmental task
forces at the local level may be the most logical
method for addressing these concerns and it is
reasonable to expect a growing desire to form more
of these task forces in the near future.

To make sure existing task forces reach their full
potential, today's environmental task force leaders
must develop public awareness programs. As the
national survey has shown, only a minority of
present task forces have public awareness and
education programs, yet other results in the study
have stressed the integral part community support
plays in the success of local environmental task
force programs. Those offices that lag in this area
will need to develop wider influence through
community interaction programs that teach how to
identify and report environmental crimes and
promote awareness of task force accomplishments.
Environmental prosecutors who have established such
community-oriented environmental crime task forces
can help task force leaders of tomorrow reassess
the traditional boundaries of the environmental
prosecutor's role and, in doing so, help reinforce
constructive collaboration with the public.

Cooperation is essential. Without communication,
consideration, and cross-training, environmental
crime investigations may commence but rarely lead
to successful prosecution. Therefore, cooperation
among local task force members, as well as a
greater partnership between local, State, and
Federal environmental crime prosecutors, would
result in expanded and more effective environmental
crime enforcement.
----------------
Sidebar 

The Typical Environmental Prosecutor

Based on the survey results, a profile can be
constructed of a typical environmental prosecutor:
the typical prosecutor specializing in
environmental crime works in an office representing
an urban jurisdiction, is assigned full-time to
environmental crime prosecutions, and prosecutes
each case vertically (i.e., being active in each
case from its early stages of investigation through
to disposition). The most common cases faced by the
environmental prosecutor involve the illegal
disposal of hazardous wastes that are as likely to
be referred to the office by local law enforcement
as they are to come from environmental regulatory
agencies. 

During the decisionmaking process leading to
charging, the average environmental prosecutor
places the greatest weight on the degree of harm
posed by the offense and on the offender's criminal
intent. If the environmental prosecutor decides not
to prosecute, it is usually because of a lack of
evidence or the inability to recognize appropriate
evidence. In the mind of the average environmental
prosecutor, pressures exerted by business/labor
groups to withhold criminal prosecutions are
generally outweighed by other pressures such as
those exerted by the general public to execute
criminal prosecution. The typical environmental
prosecutor on the local level, however, is apt to
proceed with a civil case if the prosecution target
is a corporate/business. At trial the typical
environmental prosecutor is very reliant on expert
witness testimony for successful dispositions.

Environmental prosecutors often exhibit a degree of
frustration stemming from a perceived lack of
appreciation for their work and an overall lack of
resources to improve technical skills. They may
feel supported by their office, local regulatory
agencies, and the public but are less certain of
support from police and the judiciary. Further, the
average environmental prosecutor feels handicapped
in achieving professional goals due to fierce
internal competition for sparse funds and a limited
range of educational and technical assistance
sources.
-----------
Sidebar 

Other Publications on Environmental Crime

Local Prosecution of Environmental Crime, NIJ
Issues and Practices, by Theodore M. Hammett and
Joel Epstein, 1993, 112 pages.

NCJ 143270

This document describes the experience of five
local prosecutors' offices in prosecuting
environmental crime (Alameda County, California;
Cook County, Illinois; Jefferson and Gilpin
Counties, Colorado; Los Angeles County, 
California; and Monmouth County, New Jersey) that
have made prosecution of environmental crime a
major priority.  It discusses their approaches and
the obstacles they face.

Prosecuting Environmental Crime: Los Angeles
County, NIJ Program 
Focus, by Theodore M. Hammett and Joel Epstein,
1993, 16 pages.
NCJ 141868

This document examines the Los Angeles County
Environmental Crimes Strike Force--a collaborative
approach to investigating and prosecuting
environmental crime.  It explains the program's
history and strategy and the roles of key health
and law enforcement agencies.

Law Enforcement Response to Environmental Crime,
NIJ Issues and Practices, by Joel Epstein, Esq.,
Theodore M. Hammett, with the assistance of Laura
Collins, 1994, 92 pages.
NCJ 151399 

This document describes the results of a national
telephone survey and site visits to three
jurisdictions that have made a strong commitment to
enforcement of environmental crime. The report
describes strategies that law enforcement,
environmental, and regulatory agencies can adopt to
enhance their responses to environmental crime.
For more information or to obtain these free
publications, write the National Criminal Justice
Reference Service (NCJRS), Box 6000, Rockville, MD
20850, or call 800-851-3420.
--------------

Sidebar 

Task Force Concept: Integral to Environmental Crime
Specialization

Over half of the large jurisdictions surveyed
reported that they operate special units dedicated
to environmental crime. Their past experiences
spotlight some pitfalls and serve as a roadmap to
managers of fledgling units or those aspiring to
such a role. The formative years of these units
paint a sobering picture of hurdles that
environmental prosecutors were compelled to
overcome on their way to establishing themselves as
experts. Relying primarily on self-education, these
prosecutors have looked at ways to convince the
public and the criminal justice system of the
equation between environmental violations and
criminal behavior. 

Obtaining a respected identity within the criminal
justice system was another task. Environmental
prosecuting units had to distinguish themselves
from the larger units and establish a separate
presence. This led to the adoption of an
organizational concept that now stands as the heart
of many environmental crime investigations and
prosecutions: the local environmental crime task
force. About half of those surveyed were found to
be part of these nontraditional arrangements
wherein personnel from both law enforcement and
regulatory agencies are assembled to capitalize on
unique skills and decrease enforcement duplication.
While past research has revealed that such
operations can be pivotal in the success of
environmental crime prosecutions, the present study
probed to uncover those elements most important to
such success. 

Interviewees stressed the significance of an "open
system" approach within the task force that in some
ways modified traditional role definitions of
investigator and prosecutor. In order to ensure a
high level of case quality, interdependence and
rapport building among criminal investigators,
environmental regulators, and prosecutors are
necessary. Since environmental task forces can be
composed of individuals representing disparate
enforcement philosophies emanating from distinct
governmental levels (local governments, State, and
Federal) as well as from distinct enforcement
disciplines (criminal and regulatory), it is
essential that task force leaders cultivate a
climate for professional collaboration. Since the
most typical environmental task force cases demand
protracted investigations, personnel selection
methods that accurately identify the
characteristics of candidates compatible with this
type of work are necessary.

Practical training programs on the stages of
environmental task force development, thoughtful
personnel selection practices, and trust-building
policies can help overcome these problems and
transform proponents of regulatory/law enforcement
ideologies into members of a cohesive team.
Experienced task force managers from urban DA's
offices could act as facilitators of these programs
and provide much needed illumination to what
promises to be a new wave of aspiring task force
leaders.
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