Conservatives critique overcriminalization and the environment, but can't have it both ways

The Texas Public Policy Foundation last month published a new report (pdf) by Marc Levin and Vikrant Reddy focused on the criminalization of business regulation, particularly as it relates to environmental rules. The Washington Examiner's Beltway Confidential blog item on the topic led this way:

Five Gulf Coast states have over 1,000 laws that allow prosecutors to target people with criminal sanctions over rather minor infractions related to the environment and outdoor living, a new study shows, even in cases where the accused did not cause any harm or knowingly break the law.

“The labyrinth of vague offenses fails to put individuals and businesses on notice as to what conduct is prohibited, leaving those in such industries with the unenviable choice of curtailing productive, job-creating economic activity or taking a risk of being branded a criminal,” Texas Public Policy Foundation analyst Vikrant Redd said in a statement on his organization’s report.

The report indicates that this opaque process tends to empower bureaucrats, with many “offenses created by rulemaking pursuant to blanket statutes that permit agencies to effectively create crimes,” in addition to criminal regulations pertaining to hunting, fishing, or agriculture.

Texans can commit up to 11 felonies related to harvesting oysters, according to TPPF.

Long-time Grits readers will recall I've had fun at legislators' expense over the eleven oyster-related felonies, but the issue of overcriminalization and the usurpation of business regulation by criminal law is no laughing matter. Among Gulf Coast states, Texas has the second most environmental crimes on the books behind Louisiana, reported TPPF, with 263 compared to 286 for the Bayou State, 185 in Alabama, 107 in Florida and 94 in Mississippi.

Among other suggestions, Levin and Reddy call for strengthening mens rea or the element of criminal intent in environmental statutes as opposed to strict liability crimes that don't consider the actors' intentions, and that's an idea that IMO applies well beyond environmental crimes. They're concerned that "some statutes require mere criminal negligence rather than intentional, knowing, or reckless conduct for culpability. In effect, this is often the same thing as eviscerating the mens rea requirement altogether." For example, "In Louisiana alone, over one hundred offenses that relate to hunting, fishing and wildlife could result in imprisonment — and virtually none of these offenses carry a mens rea requirement."

That said, while I agree with the thrust of the report, there's an irony at TPPF being the messenger. The group over the years backed tort reform measures and argued to reduce business regulation, and the neutering of those traditional means of redress has contributed greatly to the move toward criminalization of what were traditionally mere regulatory offenses or torts. Conservatives can't have it both ways, arguing against both criminal liability and non-criminal enforcement mechanisms, at least without giving off the impression that they just want to give business a pass for behavior that harms others. Extreme tort reform and anti-regulation ideology among conservatives arguably have been the greatest contributors to overcriminalization in this area, because real-world harms still occur and traditional avenues of redress have been gutted. In that context, criminal penalties are the only vehicle that remains. While Levin, Reddy and TPPF's Center for Effective Justice in general have adopted a more nuanced approach to these questions than most conservative commentators, it's also true that these are subjects where the conservative movement has not quite figured where it will ultimately land; they know what they're against but it's unclear what solutions they favor. Grits applauds TPPF, though, for its willingness to engage in those debates and largely agree with their criticisms of overcriminalization articulated in the report.