Criminal Law and Pollution - Assignment Example

Name: Tutor: Course: Date: Criminal Law and Pollution The matters to do with environmental pollution increasingly became important after the World War II. After many years of war and destruction, governments were particularly keen to establish strong economies. The main focus immediately after the World War II was to create vibrant economies that could be sustained through lasting peace. However, as the 20th century wore on, it became increasingly important for governments to take note of the impact of economic activities on the environment. International players such as the UN had taken an active role in entrenching the values of the Human Rights movement into nations around the world. It seemed, however, that little focus had been placed on environmental matters. Fast forward to the present time, much progress has been made to ensure that the environment is protected from the harmful effects of the various economic activities. Various legal steps have been taken to ensure that economic actors are observant of their actions. Increasingly, however, is the fact that civil procedures and criminal procedures are clashing when it comes to litigation and justice (Hawkins 21). Big corporations have come under the spotlight ever since the world took notice of their polluting activities. These are entities that have developed the capacity to develop operations that go beyond national boundaries. As such, it has led to the occurrence of major environmental cases occurring in nations that are far from the corporations’ native residencies. The pursuit of justice in such instances has taken various forms. Criminal, as well as civil procedures, have taken root whenever redress was the sort to rectify the harmful effects of environmental pollution (Hawkins 54). However, for the most part, criminal proceedings have taken the larger route in the effort to bring about justice for the wrongful acts of individuals that led to environmental pollution. These criminal proceedings have ensnared chief executives, chief financial officers as well as the founders of companies. The sentences that have been served by these law offenders have also been varied with some of them getting light penalties due to such instruments such as plea bargains and cooperation agreements. For others, the repercussions have been far from lenient. In some cases, employees, as well as executives, have received unprecedented penalties for offences that were non-violent and first –time in nature. An example is cited in a case in which one financial executive was sent to jail for eight years simply because he chose not to disclose the fraudulent conduct and activities that had taken place under another executive (Clifford 21). Investigators have developed a keen interest to deal with the individuals in a firm even when the investigations taking place are targeting a firm. In a study conducted, it was shown that, in the period between 2003 and 2006, 31 firms escaped prosecution. However, the same firms ha their executives being targeted. More than half of the executives in these firms were indicted. The policies being implemented by the Justice Departments are large to blame for such an occurrence. For a long time, firms have operated under the understanding that they can avoid major implications if they consistently cooperate with investigators (Hawkins 44). As such, the understanding that has prevailed in the business community is that cooperation with the justice system can lead to lenient forms of punishment. The provision of such privileged information and materials as financial records and operational standards are some of the instruments used in litigation processes (LAZARUS 7). In the studies involving criminal law, this sort of behaviour in the system is seen to be a function of the understanding that corporate crime is a product of the principal-agent problem. The principal-agent framework is based on the understanding that the ones who commits a crime tends to act in his interests and does not follow in the interests of the firm. The firm, in this case, represents the owners, who in most cases refer to the shareholders. Based on this model, the agent is usually sanctioned in the socially-optimal legal regime. Indeed, it is an issue that has raised much debate. The activities that firms operate with are usually legal in nature. Law sanctions them and as such, it cannot be said that if pollution occurred, an illegal activity had to have been taking place. However, it is in the midst of the pursuit of organizational goals that pollution occurred. While a particular economic activity led to the emergence of pollution in a given place, the particular economic activity must have benefited the firm in the first place before any pollution was detected (Moohr 13). The principal-agent framework suggests that the first and foremost responsibility of the firm, in any case, is to monitor the actions of their agents. Agents are seen as entities that have their agendas that are separate from the firm’s goals and objectives. It creates the understanding that the firm is indeed helpless in dealing with these agents. In any case, whenever a corporate crime occurs in the first place, it is usually as a result of an omission. The omission is the failure to control the agents who are indeed purported to have their agendas. Indeed, in such a case, any commission of a crime carries a bigger weight. When the scales of justice are tipped in such a manner, then it is only natural that corporates be excused from any corporate crime (Moohr 7). The matter brings to light various issues with regard to ethics and morality. For a long time, corporate crime is understood to be an issue of ethical as well as moral lapses of employees in a firm. However, such a case cannot be allowed to persist any longer because, in the event of corporate crime, it can only lead to the removal of the concerned employees and executives who were involved in the illegal activity. In one report, however, it is suggested that it is not simply an issue of bad elements in an organization. At times, it is more an issue of the harmful elements and company culture an organization. Company culture influences many activities taking place in an organization (Fisse and Braithwaite). In the context of the big corporations and firms, it is imperative that the top executives be aggressive in nature so as to ensure that their respective organizations remain competitive and ahead of the other players in the marketplace. However, time and time again, such elements have been proven to be risky players since their actions tend to be too risky. The interpretation of rules in an organization is as such largely to blame for many of these cases in which an individual takes decisive action (Vuckovic 65). The environment in which a person operates can intrinsically affect the decision-making processes. In the context of environmental pollution there are concerns that at times, it can be difficult to know whether an act was as a result of direct action of an individual or a group effect. Some work environments tend to encourage teamwork more than individual pursuits. As such, it can lead to the development of groupthink mentalities, whereby a member of a group might feel not obliged to object the activities of the group despite the fact that an illegality has taken place (Fisse and Braithwaite 12). Groupthink mentalities are especially expressed in the NASA Columbia Disaster, in which there were consistent organizational failures that prevented dissenting opinions from being heard by the superiors. In such an instance, it can be difficult for a law-abiding individual to disclose the illegal or unethical or wrongful conduct of another colleague. The natural urge in such environments which perpetuate groupthink mentalities is to align incentives and goals to ensure that they are in line with those of the rest of the organization. The principal-agent framework is also dented by some policies in an organization such as salary structures and remuneration. In the big corporations, work profiles are analysed regarding performance goals and objectives. In such circumstances, those who perform well tend to earn higher bonuses as compared to those who offer average performances and results. The effect of such a structure is that it encourages the achievement of goals rather than the way in which the workers operate to achieve the same goals (Fisse and Braithwaite 7). The process is as important as the end product. The market structures are designed to optimize the shareholders’ stock values. As such, company executives are thus pressured to ensure that the value of their companies’ stock is always rising. It is in such an effort that the line is always crossed. For this reason, it is important to understand the nature of corporate crime as being more than just the wrongful actions of individuals in an organization (Megret 113). Even in the realm of international criminal law and international environmental law, there are concerns that the current laws that sought the protection of the environment are rather too punitive in nature. The environment is a rather dynamic and complex entity. Any alteration to the environment can have far reaching effects (Vuckovic 61). These effects tend to go beyond the immediate place in which an ‘environmental crime’ has occurred. The justice system at the moment is established by the traditional need to establish an actus reus in criminal proceedings. It is a simple equation of establishing a victim or harm was done. In this regard, criminal law will fail to prevent the damage done. It will not oblige corporations to adopt compliance programs. Due to the nature of criminal law, whether at the national or international level, the punitive aspect of criminal will not redress a tort. The victims in such a case will not be compensated for wrongful actions (Moohr 17). Even if actions of individuals are punished, it is usually a matter of too little too late. The traditional punishments about criminal law tend to be incarceration and fines. For corporations, incarceration is not useful as well as the fines. While some executives can conduct criminal activity, it is inconceivable that their incarceration will lead to a change of practices in these organizations. At the same time, fines are usually a cheaper option for companies since they usually have the resources to pay these fines. Indeed, the costs of compliance programs for these firms are usually higher than the fines that they may have to pay when brought before a court of law. The thinking has to be adjusted when it comes to the giving fines to these companies. The fines cannot be issued based on a maximum that has been established by law. A better strategy would be to analyse the annual turnover of a company; thus, to ensure that fines inflicted on the big corporations will cause them to reconsider their operations. At the same time, it is critical to establish compliance programs. The methodologies that can be used to establish these compliance programs are still under dispute (Moohr 15). In international law, there is a level of ambiguity when it comes to the establishment of these laws and procedures. The Rome Statute has introduced some terms that can be used to determine the extent of harm done by the actions of an entity. One clause states that an attack on the environment must result in widespread and long-term as well as severe damage to the environment. The criminal aspect of this act must be established with the understanding that the perpetrator of the crime was fully aware of the impact of their actions. The problem with such a definition is that it does not define the meaning behind the terms ‘widespread’ and the length of the time constituted in the word ‘long-term.’ It is also not clear as to the things that will amount to ‘severe’ damage. There is also need to establish a system of punitive damages. Issues such as restoration of the land to its previous state are also important (Moohr 26). It is also an issue of concern that punishment can only be offered after a process that goes on in a court of law. The concept of the due process of the law is integral to any justice system. The downside to this reality is the fact that it is a process that takes too long and at times very expensive. The criminal procedure will require that the plaintiff produces technical evidence. At times, it requires that experts be introduced into court proceedings. Indeed, the process is also political in nature. It should also be noted that, in these proceedings, the environment does not have a specific representative. The opinion of experts and the state agencies are usually regarded as representative of the interests of the government. Indeed, the issue of statehood is a concern because, at times, pollution tends to cross national borders. Criminal law operates through the mechanisms of the state. Territoriality means that there are differences regarding economic and political interests. Different judicial systems will also create enforcement issues (Smith 45). Indeed, criminal law has provided an effective deterrent for many actors not to pollute the environment. It has enabled actors to identify consistently with the community violates so that economic activities will have a positive effect and meaning to the society. However, it is clear that these processes are not enough to ensure that corporations are consistent in their operations. The effect of the criminal law will tend to target specific individuals in an organization. Such a mind-set excludes the firm in totality from punishment due to the wrongful actions conducted by executives and employees. The principles of corporate criminal liability should be instituted to ensure that the principal-agent relationship is a legally binding one in word and deed. Under the respondeat superior doctrine, the actions of the agent will be linked to the firm (Moohr 29). In addition to this, the principle of strict liability can also be applied in this regard making it impossible for firms do not escape the law and face mild forms of punishment. Works Cited Clifford, Mary. Environmental Crime. Gaithersburg, Md.: Aspen Publishers, 1998. Print. Fisse, B, and J Braithwaite. "The Allocation Of Responsibility For Corporate Crime: Individualism, Collectivism and Accountability." Sydney Law Review 11.3 (1988): n. pag. Print. Fisse, Brent, and John Braithwaite. Corporations, Crime, And Accountability. Cambridge: Cambridge University Press, 1993. Print. Hawkins, Keith. Environment And Enforcement. Oxford: Clarendon Press, 1984. Print. LAZARUS, RICHARD J. Meeting The Demands Of Integration In The Evolution Of Environmental Law: Reforming Environmental Criminal Law. 1st ed. Georgetown Law Journal, 1995. Print. Megret, Frederic. "The Challenge Of An International Environmental Criminal Law." SSRN Electronic Journal (2010): n. pag. Print. Moohr, Geraldine Szott. "An Enron Lesson: The Modest Role Of Criminal Law In Preventing Corporate Crime." Florida Law Review 55.4 (2016): n. pag. Print. Moohr, Geraldine Szott. "Of Bad Apples And Bad Trees: Considering Fault-Based Criminal Liability For Complicit Corporations." American Criminal Law Review 44 (2007): n. pag. Print. Smith, Tara. Creating A Framework For The Prosecution Of Environmental Crimes In International Criminal Law. 1st ed. Ashgate Publishers, 2011. Print. Read More