Sentencing

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 101-122

Page 101

Chapter 8:

Sentencing

I. Consequences of an Environmental Criminal Conviction

Once the accused has been found guilty of committing a crime, whether through a plea agreement or jury

verdict, punishment will be determined in t he sentencing phase. In environmental crimes cases, t he judge

usually receives input from the prosecutor, the defense, and the probation department (which prepares the

“pre-sentencing report”) before sentencing the defendant. us, entry of a judgment of guilty does not end

the defendant’s ordeal or counsel’s responsibilities. In many respects, a determination of guilt represents

only the mid-point in the judicial process.

e consequences of conviction are potentially severe, in terms of the sentence that may be imposed, the

costs of the remedial obligations, and the collateral eects on corporate defendant’s ability to conduct busi-

ness in the f uture. Prosecutors are well aware of the stringency of the available penalties, and they do not

hesitate to use them as leverage to persuade environmental violators to enter into plea agreements. Indeed,

approximately 90% of criminal defendants enter plea agreements rather than stand trial.1

A. Remedial Obligations and Negotiated Pleas

An entity that is found guilty of an environmental crime li kely will be compelled to cleanup any remain-

ing pollution from the violation and remediate any d amages. e costs of remediation frequently exceed

the amount of nes imposed, often by subst antial multiples. e recent BP settlement resulting from the

explosion and re on the Mobile Oshore Drilling Unit Deepwater Horizon and the blowout of the well it

was drilling on the Gulf of Mexico, which provides for the la rgest criminal environmental ne in history

($4.5 billion), demonstrates this dynamic.2 A corporation inevitably will be required to make large outlays

upon conviction, whether a s part of the criminal sentence or as a consequence of a subsequent civil suit.

is consideration often plays a substantial role in the company’s decision whether to seek a plea agreement

and in the prosecutor’s charging decisions.

During an environmental investigation, the government likely will seek evidence of all pollution gener-

ated or disposed of by the polluter. Both the prosecutor a nd the regulatory agency will be interested in

making certain the violator cleans up all the contamination detected, whether it factors into the actual

criminal charges or not. Further, an environmental prosecutor, as distinguished from a conventional pros-

ecutor, may seek to maximize the combination of criminal penalties and cleanup benets, rather than

focusing strictly on the length of sentences and nes. Accordingly, an environmental prosecutor may be

1. See generally Guide to the Federal Judicial System, http://www.justice.gov/usao/mow/guidebook/civil.html (last visited May 28, 2013).

2. “Under the settlement, BP will pay about $4 billion in penalties over ve years. at amount includes $1.256 billion in criminal nes, $2.394

billion to the National Fish and Wildlife Foundation for remediation eorts and $350 million to the National Academy of Sciences. e criminal

ne is one of the largest against a corporation. See “BP to Pay 4.5M in Fines,” http://shery.about.com/od/Catastrophicevents/a/Bp-To-Pay-

4-5-Billion-In-Fines.htm (last visited May 28, 2013). BP also agreed to pay $7.8 billion to settle civil economic-loss claims, and had paid out

an estimated $26 billion for clean-up and other damage claims. Civil penalty and other civil claims by the federal and state governments and

others remain pending. Paul M. Barrett, Appeals Court Blesses BP Spill Settlement but the Legal Battle Drags On, B B

(Jan. 13, 2014), available at http://www.businessweek.com/articles/2014-01-13/bp-gulf-oil-spill-settlement-upheld-but-legal-battle-drags-on

(last visited Feb. 7, 2014)..

Page 102 Environmental Crimes Deskbook 2nd Edition

willing to trade a signicantly greater cleanup commitment than could be required by law, in return for

foregoing possible criminal charges against t he entity, foregoing criminal charges against individuals, or

reducing the severity or number of counts led. Accordingly, corporations faced with the inevitability of

cleaning up their pollution may seek a negotiated resolution, based on their willingness to undertake a

comprehensive remediation program.

e prosecutor may be attracted to such a resolution, because it benets the environment directly,

through prompt elimination of contaminants, rather than indirectly through deterrence of potential future

violators. e large dollar amount involved also may generate favorable publicity for the prosecutor’s oce.

e prosecutor does not act with a free hand, however, and may need the concurrence of federal and state

civil regulators on many of the cleanup terms that have critical cost implications.

For the polluter, the principal attraction of a negotiated resolution, besides the possibility of reduced

charges, is the greater exibility that may be aorded in a plea agreement on such vital terms as the level

of cleanup required, the permissible remediation techniques, t he timetable, and post-cleanup obligations.

A plea agreement provides opportunities for substantial cost savings in these areas compared to those that

would be incurred in an adverse judgment entered after trial. Further, with the prosecutor’s cooperation, a

company may be able to struct ure the agreement in a manner that makes some of the out-of-pocket costs

tax deductible. A plea entered into pursuant to Rule 11(c)(1)(c) provides the defendant with the added com-

fort that the plea must be accepted as agreed to or, if not accepted, the court must allow the defendant to

withdraw his plea and proceed to trial. In entering into these discussions, the company must rea lize that

all aspects of its environmental performance will be in play, including prior disposals that are not included

in t he contemplated changes, other operations besides those implicated in the criminal complaint, and

discharges to other media in addition to those involved in the criminal violation.

e degree of cooperation demonstrated by the company during the investigative process may aect

signicantly the willingness of the prosecutor to consider a consensual resolution. None of these benets

is likely to be achieved unless the prosecutor is convinced of the company’s good faith and the regulatory

agency has condence in the company’s reliability. Eective environmental criminal counsel therefore,

must understand t he dicult ba lancing act he or she must play in conducting the defense of t he investi-

gation to address all these problems simulta neously. Counsel must organize the defense in a manner that

fully presents the company’s position on the merits, without turning either the prosecutor or the regulator

against it. More so than in most other types of criminal c ases, relations with government prosecutors and

enforcement personnel in environmental cases must not be ca st in an adversaria l, scorched-earth tone, for

fear of precluding later opportunities to turn the discussions toward negotiations over the scope of t he

cleanup and the terms of permits governing future operations. e regulated entity has a long-term, invol-

untary relationship with its regulator that can signicantly aect the future cost of doing business and thus

its ability to compete.

Finally, since settlement must be reached with all federal and state criminal and regu latory agencies,

counsel must eliminate the risk that the cleanup resolution may later be undone by another sovereign entity

with overlapping enforcement authority initiating proceedings on the same issues.3

B. Federal Sentencing Guidelines

In 1984, Congress passed the Sentencing Reform Act in an eort to alleviate sentencing disparity, which

was prevalent in the federal sentencing system. e statute reformed t he sentencing system by: “(1) drop-

ping rehabilitation as one of the goals of punishment; (2) creating the United States Sentencing Commis-

sion and charging it with establishing Sentencing Guidelines; (3) making all federal sentences determinate;

and (4) authorizing appellate review of sentences.”4 In accordance with Act, the U.S. Sentencing Commis-

sion promulgated the U.S. Sentencing Guidelines5 [hereinafter Sentencing Guidelines or Guidelines]. e

3. See Chapter 2, Section G, Parallel Proceedings, supra.

4. L M. S, CRS R  C, F S G: B, L A,  P O

(June 2007), available at http://www.fas.org/sgp/crs/misc/RL32766.pdf (last visited May 28, 2013).

5. U S S C’, G M (Nov. 2013) [hereinafter S G], available at http://www.

ussc.gov/Guidelines/2013_Guidelines/index.cfm (last visited Feb. 10, 2014)