Reshaping Environmental Criminal Law: How Forfeiture Statutes Can Deter Crime

Georgetown International Environmental Law Review, Spring 2006 by Doty, Amanda

I. INTRODUCTION

The international community has increasingly become aware of the potential importance of using criminal sanctions to enforce and deter environmental crimes.1 One such criminal sanction that has been used to combat environmental crimes is asset forfeiture.2 Many countries have adopted asset forfeiture provisions in their environmental protection statutes.3 These statutes give law enforcement officials the ability to confiscate both the profits arising from the crimes covered and the property facilitating such crimes. Asset forfeiture laws have the appealing result of both preventing crime and funding law enforcement.

Asset forfeiture has been used as a sanction for many different types of crimes. For example, in addition to environmental crimes, forfeiture laws target drug trafficking and organized crime. While the impact of forfeiture law on environmental crimes has not been analyzed specifically, several studies have examined asset forfeiture's success as a deterrent for other crimes. Considering asset forfeiture's effectiveness at deterring crime in these other contexts is a necessary predicate to evaluating whether such statutes will be able to prevent environmental crimes.

This note will examine and critique the effectiveness of asset forfeiture laws in environmental statutes. It seeks to analyze the impact such laws have on the deterrence of crime (both the environmental crime targeted by the statute as well as crime overall in the community through order maintenance). Part II examines the development of asset forfeiture in environmental laws around the world and its use as a tool to deter crime. Part III discusses deterrence theory and the impact that forfeiture may have on the crime for which the statute is designed to punish. It includes an application of this theory to environmental statutes. Part IV discusses the impact that forfeiture may have on other crimes and the ways in which forfeiture can be particularly effective in deterring crime in the community by targeting environmental crimes that cause disorder. This part examines the "broken windows" theory of crime prevention, explains the application of this theory to forfeiture, and argues that this theory should be considered by legislatures when Grafting forfeiture statutes. This part argues for a shift in thinking about asset forfeiture laws and urges legislatures to use asset forfeiture to target offenses that cause disorder in the community, such as environmental crimes.

Finally, this note describes in Part V the evolution of forfeiture laws in recent years in the United States and responds to the recent criticisms of those laws.4 This note then concludes by arguing that as countries continue to develop their environmental laws their leaders should consider adding asset forfeiture as an option for law enforcement because it might deter environmental crime as well as crime as a whole by creating order in the community. Forfeiture is an increasingly powerful tool of law enforcement to combat criminal activity because, under proper conditions, forfeiture can deter crime.5 In particular, forfeiture laws that target specific less complex offenses or offenses that create disorder and uncleanliness in a community can effectively reduce crime. Many environmental crimes meet these qualifications. Thus, policymakers should consider forfeiture as an important tool to enforce criminal environmental statutes.

II. ENVIRONMENTAL ASSET FORFEITURE LAWS

Laws that give law enforcement the ability to confiscate assets that contribute to environmental crime are present in many countries. In the United States, the Ocean Dumping Act gives law enforcement the ability to confiscate any profits derived from a violation of the Act, as well as any property used to commit a violation.6 The Lacey Act Amendments of 1981 provide that those who are caught trafficking endangered species must forfeit the trafficked items as well as any equipment used to conduct the illegal trafficking.7 The Migratory Bird Treaty Act similarly provides for the forfeiture of assets used to violate the statute.8 In Canada, the Canadian Environmental Protection Act of 1999 provides the courts with the ability to order the forfeiture of any "ship, aircraft, platform or structure" seized during an investigation of an offense under the Act for which the owner of such property is later convicted.9 Under the Ukrainian criminal code, a violation of an environmental crime can be punished by the forfeiture of the equipment used to commit the crime.10 In Russia, violation of a number of environmental laws can lead to the suspension or termination of business activity.11 These are only a few examples of asset forfeiture laws that are designed to enforce environmental statutes.

In recent years, there has been a growing awareness in the European community of the need for criminal sanctions of environmental crimes.12 More specifically, there has been a recent growing concern that the current environmental laws are not effective at deterring environmental crime and that stiffer penalties are needed.13 A Commission of European Communities directive explained the need for criminal sanctions in order to protect the environment: