This article presents an overview of the Proposed Guidelines and assesses their potential to improve both the existing sentencing scheme and, more importantly, the environmental behavior of corporate citizens. This analysis concludes that, while the Proposed Guidelines improve current haphazard sentencing practices, it is difficult to predict their efficacy in furthering environmental policy. The fundamental problem is that traditional criminal sanctions are not easily applied to non-traditional offenders committing non-traditional offenses. Rather than expressing optimism about the Proposed Guidelines, this paper suggests that the behavior of corporations could be modified more efficiently through non-criminal incentives coupled with increased criminal prosecution of the individuals responsible for environmentally harmful decisions. While the Proposed Guidelines provide a more direct means to implement environmental policy than is currently available, they may merely streamline efforts to pound square pegs into round holes.
Lucia A. Silecchia & Michael J. Malinowski, Square Pegs and Round Holes: Does Sentencing for Environmental Crimes Fit Within the Guidelines?, 8 FED. SENT’G REP. 230 (1996) (with Michael J. Malinowski).