Editors' Summary; Congress created the U.S. Sentencing Commission in 1984 to eliminate the disparity in sentences for federal criminal offenses by reducing judicial discretion to vary from prescribed sentences for each stated offense. In May 1991, the Commission forwarded to Congress proposed sentencing guidelines for organizational offenses. The Commission has expressly stated that the proposed organizational guidelines do not apply to environmental offenses, yet the sentencing guidelines for organizational offenses raise material issues concerning violations of environmental statutes.

This Article examines whether punishing some environmental offenses as criminal is likely to deter socially desirable behavior and to inhibit conduct that is environmentally beneficial. The author argues that imprisonment for environmental offenses places too much emphasis on the utilitarian value of general deterrence while displacing retributivist concepts of moral culpability and proportionality. The author concludes that the sentencing guidelines for environmental offenses should be amended to decrease their severity and to encourage mitigation or restoration instead of imprisonment. Further, the author argues that criminal prohibitions in the environmental statutes are overinclusive and that only the wise exercise of prosecutorial discretion will cure this overinclusiveness. Reducing judicial discretion to impose sentences tailored to the offender's particular circumstances has shifted the choice of penalty to the prosecutor and heightens the necessity for prosecutors to weigh demonstrable environmental harm against the need to punish and deter morally culpable behavior.