LEGISLATION: Questions Arise About Environmental Sentencing

Instead of serving time in a local correctional facility, violators convicted of environmental crimes often find themselves being required to donate time, money or both to conservation groups or local environmental organizations. Ohio courts have required several business people to join the Sierra Club, and defendants in Maryland and California have been ordered to contribute to environmental groups.

While many people consider such non-traditional sentencing to be a plus for natural resources protection, some lawyers and academics disagree with the courts for compelling individuals, in effect, to advocate causes in which they might not believe. These critics call such compulsory support an abuse of judicial power and an infringement on individual rights.

"Some organizations and some political viewpoints are going to get favored over others, and they may well reflect the judge's particular political beliefs and not society's as a whole," George Washington University law professor Gregory Maggs told The Wall Street Journal.

Compulsory support for environmental groups may run afoul of the First Amendment by forcing defendants to aid organizations whose aims and goals they do not share, said lawyers studying this type of sentencing.

After two brothers pleaded guilty in a Baltimore federal court to violating federal hunting laws, the judge fined the men $1,000 each and ordered them to give up hunting for two years and to contribute $50 each to a wildlife protection group.

The judge ignored the views of the hunters, said Stephen Boynton, an attorney for a sportsmen's rights group. Rulings like these, he says, come "very close to impinging upon rights" that even convicted defendants do not give up.

Defendants often face a Hobson's Choice: either support an advocacy group whose views may be objectionable or go to jail. Obviously, such defendants will pick the non-jail alternative rather than stir up an issue over the sentence.

The sentencing stage is a particularly vulnerable time for convicted business owners and managers, especially if the defendants or their businesses have cash. And the defendants themselves manage to find enough spare time to "donate" to do-good environmental projects.

Judges view sentencing as "an opportunity to use the defendant's resources for good" when a defendant actually has resources, said University California at Los Angeles law professor Peter Arenella.

Forced contributions to advocacy groups, however, simply reflect the increasingly common use of community service in criminal sentencing. This strategy allows judges to say they are conserving prison space for hard-core offenders.

Defendants still tend to waive appeals of nontraditional sentencing, preferring to end the criminal proceeding, to get back to business and to get on with life. Two years ago, an Ohio judge sentenced the president of a rubber products firm to 20 days in jail and a three-year membership in the Sierra Club in connection with charges of illegal transportation and disposal of hazardous waste. The judge ordered the defendant to regularly attend all Sierra Club meetings or face the possibility of more jail time, according to Michael Marcus who heads the environmental crime unit of the Ohio attorney general's office.

Enforcement officials concede an element of coercion in forcing defendants to join environmental groups. The Sierra Club, for example, lobbies for strict environmental laws and fights government and businesses in court on a variety of pollution control issues. Nevertheless, prosecutors (and apparently judges) believe that rehabilitation includes educating the offender on what has happened to the environment.

"If you send somebody to prison for two years, sending them to a Sierra Club meeting for two years seems like less of an imposition on their freedom," said Marcus. Ohio legislators are now considering a bill that would increase the power of state court judges to fashion non-traditional sentences for environmental defendants.

Last year, a Washington, D.C. conservative group filed a complaint against an Ohio judge, accusing him of judicial misconduct for sentencing a Cincinnati businessman to join the Sierra Club. The state's high court summarily dismissed the complaint.

For its part, the Sierra Club feels lukewarm about court-ordered memberships, neither encouraging nor discouraging the sentences. The organization has no illusions about forced members being active participants or paying attention to the discussions at meetings.