Corporate officials convicted of pollution crimes like those connected to the Freedom Industries chemical spill in January 2014 are seldom punished with prison terms.
So far, four of the six former Freedom owners and officials who pleaded guilty to Clean Water Act or Refuse Act crimes and have been sentenced were put on probation and ordered to pay fines. U.S. District Judge Thomas E. Johnston did not sentence any of the four men - William Tis, Charles Herzing, Michael Burdette and Robert Reynolds - to any time behind bars, despite federal laws that provide for up to a year in jail, even in misdemeanor cases that don't require proving specific criminal intent. Sentencings for former Freedom presidents Dennis Farrell and Gary Southern are scheduled for today and for Feb. 17.
Acting U.S. Attorney Carol Casto and Assistant U.S. Attorney Phil Wright, the lead prosecutor in the Freedom cases, helped Tis, Herzing, Burdette and Reynolds avoid any jail time. Casto and Wright filed motions asking Johnston for lighter sentences based on their belief that the four men had provided "substantial assistance" to the investigation of the Jan. 9, 2014, chemical spill and eventual charges and plea deals with Farrell and Southern.
Johnston granted each of those motions, a move that bumped the sentence recommended for each of the defendants under the advisory Federal Sentencing Guidelines from the statutory maximum of 12 months to a recommended range of zero to six months.
Within the statutory maximum, federal district judges generally have broad discretion in making sentencing decisions. They are, though, supposed to be guided at least in part by the advisory guidelines, written by the sentencing commission, an independent agency in the judicial branch. Judges also base sentencing decisions, at least in part, on detailed "pre-sentencing investigation reports" on defendants. Those reports, prepared by the U.S. Probation Office, are confidential.
Prosecution motions for "substantial assistance" sentence reductions are one of the various factors that can reduce a recommended sentence under the federal guidelines. And according to one major examination of sentencing decisions in environmental crime cases, they are often the most significant factor at play.
Marquette University criminal law professor Michael O'Hear found in his review of environmental crime cases that "prison is the exception, not the norm" for environmental defendants. He found that only about a third of such defendants received any jail time. During the same time period, more than 80 percent of all federal defendants received a prison term, O'Hear reported.
O'Hear's data is old - his study was published in 2004 - and he said this week he has not updated his analysis. But more recent statistics suggest the bottom-line findings remain the same. Over the last five years, data from the sentencing commission shows that defendants in environmental crime cases were sentenced to the same sort of "straight probation" that Johnston has ordered in the four Freedom cases so far.
In his study, O'Hear found that the sentencing guidelines "will nearly always mandate at least a short period of incarceration" for environmental crimes in which - as with Freedom - there was an actual discharge of pollutants into the environment, as opposed to a record-keeping violation of some sort. But, O'Hear explains, the guidelines also allow judges to "depart" from the recommendation for a variety of reasons.
O'Hear found that in environmental cases, the single most common reason for judges giving lighter sentences was that the defendants had provided "substantial assistance" to prosecutors. Other common reasons cited by judges for reducing sentences included the harm or risk involved in the case and the defendant's state of mind, O'Hear reported.
In the Freedom cases, Johnston has cited both his views on the harm or risk involved in the spill and the state of mind of the defendants in choosing a sentence at the low end of the guideline range recommended after considering the help the defendants provided to prosecutors.
Johnston said, for example, that while the "water crisis" was a "traumatic event for the communities in the area," the crisis was long over, and that while the chemical exposure to residents was "perhaps an immediate irritant," no evidence in the criminal cases shows it poses any "long-term health threat to anyone." So far, prosecutors have not presented any testimony from spill victims or expert scientists about the spill's impacts.
The judge also noted that all of the individual defendants - the four sentenced so far and the two still to be sentenced - were allowed to plead guilty to misdemeanors. The plea agreements, finalized last year by then-U.S. Attorney Booth Goodwin, involved either negligence or strict liability for water pollution violations, not the sort of "knowing" conduct required to prove felony charges and expose the defendants to prison terms of more than a year per criminal count, the judge noted.
"In the eyes of the legal system, a misdemeanor charge limits the seriousness of the crime and must necessarily limit the punishment as well," Johnston said.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.