Chapter 10: Criminal law as an instrument of environmental policy: theory and empirics
Mark A. Cohen INTRODUCTION This chapter explores the role of the criminal law as an environmental policy tool. The criminal law is both a powerful and a clumsy policy instrument. Its sanctions can be severe, putting firms out of business or jailing executives. Yet, criminal enforcement is highly decentralized and lacks clear policy guidance, often resulting in wide variations in treatment of offenders – whether measured across offenders, jurisdictions, or time. To those not well versed in criminal law, it might be surprising to learn that not only can individuals be charged with a crime, but so can corporations. To understand how the criminal law might be effectively used for environmental policy purposes, I start with some background on the purpose of the criminal law and how it is applied to environmental cases in the US. Next, I consider the economic theory of criminal sanctions including questions such as: What is the purpose of the criminal law? How are sanctions to be determined from an optimal penalty framework? When should the firm versus the individual be held criminally liable for environmental harm? Finally, I examine what little empirical evidence exists on the use of the criminal sanction for environmental offences. CRIMINAL LAW: THEORY AND PRACTICE There is no one legal definition of a crime. Instead, statutes generally define specific behaviour deemed to be criminal. But those statutes can change and behaviour that is criminal today might not be next year. Nevertheless, there are several characteristics of crimes that distinguish them from...
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