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by Theodore Hammett and Joel Epstein
Prosecutors who wish to expand their role in environmental crime prosecution will most likely have to overcome some rather formidable attitudinal obstacles and misconceptions. The experiences of the LA Strike Force may help prosecutors in other jurisdictions chart a path through this complex legal territory.
* Some prosecutors feel unprepared to tackle environmental cases, which are perceived as hopelessly complicated and impossible to win. The Environmental Crimes/OSHA Division addressed this obstacle by offering special training in this nontraditional area and by hiring attorneys who expressed a serious commitment to working on environmental prosecutions.
* Many corporate defendants regard civil penalties and one-time cleanup costs as part of the cost of doing business. The LA Strike Force addressed this obstacle by instituting a policy of using civil proceedings only when criminal remedies are not available and by refusing to accept defense attorneys' requests for a civil settlement in exchange for a more serious criminal charge.
* Some judges are not well versed in environmental laws or sensitive to the seriousness of environmental crimes. They may also believe that environmental cases are more appropriately handled by civil or administrative means than by criminal prosecution. In California, judges' more positive attitudes toward environmental prosecutions may have been influenced by several factors, including the high visibility and potential political impact of some cases, the LA district attorney's commitment to prosecute environmental cases, and the potential for reelection challenges or recall petitions that may result when a judge ignores issues of public concern.
* Individual juries may be reluctant to convict a community's business leaders and significant employers if the alleged environmental damage does not have an immediate deleterious effect. The LA Strike Force seeks to raise public consciousness by emphasizing the serious consequences of the offenses it investigates and prosecutes.
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