Polluting Our Principles: Environmental Prosecutions and the Bill of Rights

April 20, 1995 • Policy Analysis No. 223

In recent years environmental criminal prosecutions have become a major interest of federal prosecutors. Each year the Department of Justice announces “record levels” of fines imposed, persons indicted, and jail time served for infractions of environmental regulations. The ostensible purpose of the criminal program is to punish and deter polluters whose actions might endanger public health and the environment. However desirable those policy objectives may be, they should not obscure the means by which the government pursues its environmental mandate.

Many of our most basic constitutional principles are being compromised to facilitate environmental investigations and prosecutions. Federal lawmakers have authorized coercive “self‐​confession” programs and warrantless inspections of commercial premises. The law has stripped environmental criminal suspects of traditional legal defenses such as good faith, fair warning, and double jeopardy. Stringent regulations make it extremely difficult for legitimate businesses to operate within the law. Indeed, the web of regulations has grown so dense that many observers believe compliance with the law is unachievable. It is no overstatement to say that many American businesses are currently operating in what is essentially a regulatory police state.

A fundamental reexamination of the federal regulatory structure is in order. It is imperative that Congress reexamine the role of the federal government, as well as the role of criminal sanctions, in environmental law. Reform should begin with the immediate restoration of the legal rights and privileges that are enshrined in the Bill of Rights.

The Constitution is the rock of our political salvation; it is the palladium of our rights; … [but] when the [government] pursues a favorite object with passionate enthusiasm, men are too apt, in their eager embrace of it, to overlook the means by which it is attained. These are the melancholy occasions when the barriers of the government are broken down and the boundaries of the Constitution defaced.

– Junius Americanus

American lawmakers, spurred by their concern for the natural environment, have created a regulatory environment in which “the barriers of government are broken down and the boundaries of the Constitution defaced.”[1] They seem to have lost sight of the importance of constitutional protections as they measure their accomplishments in terms of numbers of prosecutions and convictions and the dollar value of fines.[2]

All three branches of government at both the federal and state level have seriously eroded important protections, including the principle of “specificity” in penal statutes, the Fourth Amendment guarantee against unreasonable searches and seizures, the constitutional bar on double prosecutions, and the Fifth Amendment privilege against self‐​incrimination.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice