CLIMATE CHANGE AND THE CRIMINAL JUSTICE SYSTEM.

• Author: Levenson, Laurie L.

1. Introduction 335 II. Crimes in a Climate Change Era 340 A. Crimes Impacted by Climate Change 340 1. Immigration-Related Offenses 340 2. Weather-Event Theft Crimes and Crimes Against Persons 345 a. Looting and Property Crimes 346 b. Crimes Against Persons 350 3. Fraud Crimes 354 4. National Security Offenses 359 5. Novel Crimes--Disinformation Campaigns and Criminal Negligence 362 B. The Criminal Justice System, its Operation, and its Infrastructure are Woefully Ill-Prepared to Address Climate Disasters 365 III.Planning for the Impact of Climate Change on Correctional Facilities 366 A. Constitutional Challenges to Prison Conditions 368 B. Increased Violence in Prisons and Jails 369 C. Increased Costs for Correctional Facilities 371 IV. Climate Change's Impact on Traditional Criminal Law Doctrines 373 A. Necessity Defense 373 B. Duress 375 C. Causation 376 V. Conclusion 377 A. Initial Suggestions 377 1. Further Study of the Effect and Cost of Climate Change on Criminal Justice 377 2. Efforts to Measure the Cost of Major Development Projects to the Criminal Justice System 378 3. Creation of Task Forces Targeted at Addressing Climate Change Disruptions to the Criminal Justice 378 4. Development of Operation Plans to Address Extreme Weather Events 378 5. Reallocation of Resources to Prioritize Charges Against Companies Contributing to Climate Change.... 379 6. Research and Funding of Programs Designed to Reduce the Impact of Climate Change on the Criminal Justice System 379 7. Formation of Specialized Prosecutor Units to Respond to Climate Events and Their Impact on Arrests and Prosecutions 380 8. Enactment of Laws to Address the Causes of Climate Change 380 9. Integration of Lessons about Climate Change into the Criminal Law Curriculum 380 10. Release of Studies on the Impact of Climate Change on Correctional Institutions 381 B. Worry Less and Do More 381 I. INTRODUCTION

   "2019 was the second-hottest year ever, closing out the warmest decade." (1)

   The headlines are frightening, and the facts are even worse. The world is in the throes of a climate change crisis that will have an impact on every aspect of our society. (2) For the last four years, the Trump administration sought to downplay the climate threat. (3) As a result, valuable time has been lost in domestic and global efforts to confront its challenges. (4) The Biden administration has set addressing climate change as one of its top priorities, although early policies are focused on revamping America's energy sources and market operations. (5) Climate change is at long last being characterized as an issue of national security, (6) and President Biden's selection of former Secretary of State John Kerry as his "climate envoy" signals a restored focus on the seriousness of climate change. (7)

   While the Biden administration has given a great deal of attention to issues of infrastructure sustainability, considerably less attention is focused on the impact of climate change on our criminal justice system. Now that climate change is a renewed priority for America, the country must address the significant demands climate change is placing on the criminal justice system. This Article anticipates how climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities. Consideration of these challenges must be at the forefront of new environmental policies. The criminal justice system cannot be left behind in the race to address climate change.

   Despite former President Trump's rhetoric to the contrary, (8) climate change is real. (9) "Earth's climate is now changing faster than at any point in the history of modern civilization, primarily as a result of human activities." (10) According to the National Aeronautics and Space Administration, the global temperature has risen 2.0[degrees]F since the late nineteenth century. (11) Most of the warming occurred in the past thirty-five years, with the five warmest years on record taking place since 2010. (12) The sea level is rising 3.3 millimeters per year, the ice sheets are melting at a rate of 428 gigatonnes (13) per year, and carbon dioxide has risen to 415 parts per million. (14) The Intergovernmental Panel on Climate Change reports that "[scientific evidence for warming of the climate system is unequivocal." (15)

   "The current warming trend is of particular significance because most of it is extremely likely (greater than 95 percent probability) to be the result of human activity since the mid-20th century," (16) and the likelihood is that the impact of climate change on our environment will not only continue but accelerate. For example, the global sea level rose about eight inches in the last century, but in the last two decades, that rate of increase has nearly doubled. (17) Additionally, climate change is causing more extreme weather events, such as intense storms, droughts, wildfires, heat waves, and more frequent and more intense hurricanes. (18) The rise in temperature alone will mean that the Central Valley of California, where many of California's prisons are located, will have temperatures of at least 100[degrees]F during the summer. (19) In recent times, temperatures as high as 116[degrees]F have been recorded there. (20)

   As temperatures continue to rise, so too will the challenges to the criminal justice system posed by climate change. Climate change can affect everyone in the criminal justice system--from law enforcement to defendants to judges to jurors--and it does not take much imagination to anticipate the additional problems for prison administrations when inmates are housed in sweltering heat or flooded correctional institutions. In other jurisdictions, climate events may directly impact the ability of courts to remain open.

   In fact, a range of climate-related changes are already impacting American society. Flooding, intense winter storms, hurricanes, tsunamis, cyclones, and oppressive heat waves are all well documented. (21) But the reports addressing climate change have yet to include discussions of how the changes in our world environment will impact the criminal justice system. (22) Scientists are doing their jobs. Now, it is time for lawyers and legislators to do theirs by conducting a thorough examination of how climate change will affect the criminal justice system and what steps are needed to ameliorate its impacts.

   This Article addresses three ways in which climate change poses challenges for the criminal justice system. First, climate change will impact the types of crimes that the criminal justice system will confront. For example, eco-migration is likely to lead to an increase in immigration offenses, while increased environmental regulations may lead to more fraud on the government. Second, climate change will impact our prison and jail systems, including where and under what conditions inmates can be held. Third, climate change will impact how traditional doctrines in criminal law, such as necessity and duress defenses, are used in the courts.

   The recent coronavirus pandemic highlighted the need to plan for disasters in advance. As one commentator aptly stated:

   To be clear, the coronavirus pandemic is a tragedy--a human nightmare unspooling in overloaded hospitals and unemployment offices... . But this global crisis is also an inflection point for that other global crisis, the slower one with even higher stakes, which remains the backdrop against which modernity now plays out. (23) That "other" crisis is the climate change crisis, and it is already on the way. Not only is it likely to have a devastating impact on the criminal justice system in general, but it will predictably have more impact on those individuals who are both most vulnerable to climate change and to the criminal justice system: low-income, Black, and Latinx neighborhoods. (24)

2. CRIMES IN A CLIMATE CHANGE ERA

   It is not difficult to anticipate the types of crimes that may increase from climate change. While a diminution in food and resources could lead to an increase in all kinds of crimes, there are at least four particular types of crimes that may be most directly impacted by climate change. These include immigration offenses, crimes during major weather events, fraud, and national security offenses. Additionally, crimes stemming from disinformation campaigns or negligent disregard for the risks of climate change may also arise. All of these are exacerbated by the myriad of environmental violations that create or compound the problem of climate change.

   Efforts are now needed to track, prevent, and respond to many of these offenses. As these crimes are examined, it is important to keep in mind that the impact will likely fall disproportionately on those who are traditionally most vulnerable in our society. "Women will suffer more than men, people of colour more than the non-Indigenous and the non-migrant, the young and the elderly more than the adult, and the infirm and disabled of all ages." (25)

   1. Crimes Impacted by Climate Change

      1. Immigration-Related Offenses

         The phenomenon of eco-migration is now well documented. (26) In the aftermath of environmental disasters, people have no choice but to leave the affected area and migrate to other locations. Domestically, this occurred after Hurricane Katrina in 2005, when there were large population movements from the New Orleans area to other cities in the United States (27) and during the Dust Bowl in the 1930s. (28) While those migrations caused economic stresses on communities, they did not implicate the immigration laws that would impact eco-migration from countries outside the United States.

         The last decade has brought escalating numbers of immigrants from Central America. (29) Although portrayed by some political figures as dangerous bands of criminals, their rate of crime is not that different than that of other young U.S.-born males from a lower socioeconomic status...