I never know what to think about environmental crimes. When it comes to everyday, drug-dealing thugs, I generally assume that they’re all innocent and that they’ve only been charged with those crimes because they’re poor and easier to catch than rich, white college students. When it comes to environmental crimes, though, I think those rich fellas dumping barrel after barrel of cancer into lakes and streams are in a bit of a different position. We’ve been talking recently in the business crimes course I’m taking about mens rea, and the class’s defense bar was troubled by the anemic guilty-mind requirements in the big environmental statutes. I’ve been thinking though, and these polluters pretty consistently hang out on the high end of sophistication, and sophistication always seems to lead to special treatment everywhere else in the law.
I searched for “sophisticated” on Westlaw Next. The first result I got was US. v. Lewis, a case about tax crimes and sentencing guidelines, which explains that sophisticated crimes might warrant greater punishment in order to achieve the desired deterrence because the sophistication of these crimes might make them harder to detect. 93 F.3d 1075, 1080 (2d Cir. 1996). In contracts, factors for applying the unconscionability doctrine include “the parties’ relative sophistication.” Carlson v. General Motors Corp., 883 F.2d 287, 293 (4th Cir. 1989) (quoting Kaplan v. RCA Corp., 783 F.2d 463, 467 (4th Cir. 1986)). In this body of law, it’s the unsophisticated who are protected, “[r]escission of a contract for unconscionability is an extraordinary remedy usually reserved for the protection of the unsophisticated and uneducated.” Layne v. Garner, 612 So.2d 404, 408 (Ala. 1992) (quoting Marshall v. Mercury Finance Co., 550 So.2d 1026, 1028 (Ala. Civ. App. 1989)) (emphasis added). So why are we worried about sophisticated polluters?
I wouldn’t have been bothered by this discussion (and I’m sympathetic to the argument) if it wasn’t for the fact that I’ve known poor people my entire life, and I’ve seen what happens when they are accused of crime. Besides some over protective mothers, I don’t know any one who wants a federal government that can put people in jail just by accusing them of dumping some dioxins here or there. But that seems to be what happens to the poor. They find themselves accused of possessing a little marijuana, and bam – it’s conviction by accusation. I don’t have to quote anything to back up that assertion. Just think about how many criminal cases end with pleas.
Think of incarceration rates too. If we’re worried about the government not having to prove a very high level of mens rea to convict a corporate executive for dumping tons of toxins into the environment, how the hell can we even sleep at night with all the people in jail for nonviolent drug offenses (or any number of offenses)? Maybe law school is just out of touch with reality.