Limiting prosecutorial discretion under the Oregon Environmental Crimes Act: a new solution to an old problem.

• Author: Zafiris, Gregory A.

1. INTRODUCTION 1674 II. THE HISTORY AND DEVELOPMENT OF SECTION 468.961 1676 A. Legislative History 1677 B. The Content of Section 468.961 1679 III. THE NEED TO CONTROL PROSECUTORIAL DISCRETION 1680 A. Prosecutorial Discretion as a Necessary Evil 1680 B. Current Restrictions Compared to Section 468.961 1682 1. Probable Cause 1683 2. Internal Policies 1684 IV. SECTION 468.961 AS GUIDE 1685 A. Promotion of Uniformity, Consistency, and Cooperation 1686 B. Use of Section 468.961 by the Regulated Community 1687 V. SECTION 468.961 AS GUARDIAN 1688 A. Bad Filing 1688 1. Attacking the Instrument 1689 2. Attacking the Prosecution 1690 B. Questionable Calls 1691 1. Statutory Grounds 1692 2. Constitutional Grounds 1693 C. Bad Faith 1695 1. Vindictive Prosecution 1695 2. Non-Vindictive Bad Faith 1697 VI. CONCLUSION 1697 I. INTRODUCTION

   Over the past two decades, criminal enforcement of environmental laws has risen in importance.(1) Criminal sanctions are now an essential part of most environmental programs.(2) In fact, they are an agency's "most effective deterrent."(3) Criminal santions, however, inject a new and troublesome issue into the environmental context--excessive prosecutorial discretion. The American system of justice necessarily provides prosecutors with broad decision-making power. This power is susceptible to both abuse and error under normal circumstances, and environmental law by its nature further increases the likelihood of misuse.(4) In response to this problem, states have developed various methods to control prosecutors' discretion without totally removing it from the system.(5)

   In 1993, the Oregon legislature responded to this problem with a provision in the Oregon Environmental Crimes Act (OECA) that addresses prosecutors' use of criminal sanctions for environmental violations.(6) The product of a political compromise, section 468.961 of the Oregon Revised Statutes requires that the Attorney General, together with local district attorneys, develop legally prescribed guidelines for prosecution.(7) Furthermore, prosecutors(8) bringing a felony charge under the OECA must submit certification to the court that they followed the guidelines.(9) Thus, section 468.961 has a dual role. First, it is a guide. By mandating the development of internal guidelines to provide prosecutors with direction in pursuing environmental criminals, it promotes uniformity and consistency in the OECA. Second, the section is a guardian, providing procedural protection to defendants charged under the OECA. Therefore, in order to avoid wrongful prosecution, a defendant could invoke this legal restriction on a prosecutor's discretion.

   This comment analyzes both of section 468.961's roles and identifies areas left unclear by the statute. Section II outlines the content of section 468.961 and traces its colorful legislative history. Section III further expands on the need for prosecutorial discretion and the problems such discretion creates. It then compares section 468.961 to currently existing controls on discretion. Section IV explains section 468.961's role as guide, identifying the limits of that role in curbing wrongful prosecutions. Finally, section V explains section 468.961's role as guardian, arguing that in this role will section 468.961 be most effective as a new solution to the old problem of excessive prosecutorial discretion.

2. THE HISTORY AND DEVELOPMENT OF SECTION 468.961

   Prior to 1993, Oregon lacked sufficient criminal enforcement authority for environmental violations.(10) Oregon was one of only five states that lacked felony-level penalties for environmental crimes.(11) Without felony-level sanctions, enforcers had trouble deterring "bad actors" who caused serious environmental harm.(12) Furthermore, Oregon faced possible revocation of federal authority for some of its environmental programs.(13) For example, the 1990 amendments to the Clean Air Act require states to have adequate criminal enforcement authority to retain a stateadministered permitting program.(14) Without felony authority, Oregon would fail to qualify to run its own permitting program, and the federal Environmental Protection Agency (EPA) could take over.(15) The legislature wanted to fill this large gap in the Oregon environmental enforcement program's effectiveness.

   1. Legislative History

      Senate Bill 88 (SB 88)(16) was the first version of the OECA that the legislature considered. Sponsored by the Oregon Department of Environmental Quality (DEQ) and the Oregon District Attorneys Association (ODAA), among others, SB 88 created felony penalties for violations of environmental laws.(17) In fact, any knowing or intentional violation of any environmental law, rule, or permit covered by the act was a felony offense.(18) Associated Oregon Industries (AOI) opposed this version. It claimed that the bill made "a gardener into a felon.... Under SB 88, if someone planting a tree piled dirt near a sewer opening and it rained, that person arguably has committed a felony."(19) AOI also felt that this excessive sweep mixed poorly with the traditional concept of broad prosecutorial discretion. Without guidance or restriction, AOI feared prosecutors could mistakenly or even intentionally bring an inappropriate charge.(20) SB 88 did not discourage prosecutors from charging technical violators instead of just those "bad actors" the law should deter.(21)

      AOI wanted the law to reflect a policy of prosecuting only "bad actors" or substantially harmful violations.(22) Negotiations began between AOI and the coalition of regulators--ODAA, DEQ, and the Oregon Department of Justice (DOJ). AOI first proposed that all prosecutors secure DEQ approval before deciding to charge a crime under the OECA.(23) The ODAA complained that this proposal was overly restrictive, and an impasse resulted.(24) The question of a formal restriction on discretion was set aside, and the parties negotiated the rest of the bill.(25) AOI proposed several other changes to restrict the scope of the bill, including narrowing the language and protecting auditing confidentiality.(26) The bill then began to take its final form--Senate Bill 912 (SB 912).

      However, the problem of prosecutorial discretion still impaired support of the bill. Other states' controls on discretion, such as the creation of a task force(27) or centralization of authority,(28) were not feasible in Oregon due to a lack of political and financial resources.(29) The bill was in danger of dying before reaching the legislative floor.(30) Then, as one participant noted, the parties reached an "eleventh-hour compromise" to save the OECA.(31) AOI proposed that the check on discretion be modeled after the federal sentencing guidelines.(32) ODAA approved of this idea, and what became section 468.961 was drafted and added to the bill.(33)

   2. The Content of Section 468.961

      Section 468.961 has three basic provisions. First, felony prosecutions under the OECA require the personal approval of the county district attorney or the state attorney general.(34) Second, each district attorney must develop guidelines for prosecuting environmental crimes. These guidelines must include the criteria listed in the statute.(35) In addition, DOJ, in consultation with ODAA and after appropriate public comment, must develop model guidelines using at least the statutory criteria.(36) District attorneys may adopt these model rules in lieu of developing their own.(37) Third, prosecutors who file charges under the OECA must submit certification to the court, signed by either the district attorney or the attorney general, that the charges are being brought in accordance with and upon consideration of the guidelines.(38) Thus, section 468.961 is both guide and guardian. It requires development of written internal guidelines to direct the discretion of prosecutors toward the statutory targets (bad actors or substantial harm), and, through judicial review, it protects non-targeted defendants from inappropriate prosecutions.(39)

3. THE NEED TO CONTROL PROSECUTORIAL DISCRETION

   Broad prosecutorial discretion is essential to the American criminal justice system. However, such discretion is open to abuse and error, especially in the environmental context. The American system uses two major tools to strike a balance between the need for broad discretion and the dangers of abuse or mistake: probable cause and internal guidelines. Section 468.961 adds a third tool to the belt.

   1. Prosecutorial Discretion as a Necessary Evil

      Broad discretion is fundamental to the efficiency of the American criminal justice system. Nondiscretionary enforcement would dilute the effectiveness of criminal law. Legislatures tend to make criminal statutes excessively broad because of administrative convenience.(40) Without discretion, a prosecutor would quickly become a "general [attacking] the enemy on all fronts at once."(41) Instead of focusing limited resources on the arrest and conviction of bad actors who present the greatest threat to public safety, the system would be forced to prosecute any and all actors who have broken a law in the slightest sense. Discretion, moreover, provides "early in the decision-making process a flexibility and sensitivity not available in [other] system[s] .... It permits a prosecutor ... to consider special facts and circumstances not taken into account by the applicable rules."(42)

      Broad discretion, however, is susceptible to abuse and mistake. A prosecutor's ability to decide what crimes to charge creates tremendous leverage over potential defendants. For example, a prosecutor can use broad statutes like the Racketeer Influenced and Corrupt Organizations Act (RICO)(43) to force an unfair plea bargain upon defendants who barely fit the technical requirements of that law.(44) A prosecutor could also innocently misinterpret a complex law and charge a defendant who was not the focus of the legislative purpose.(45) The more broad and complex the law, the...