Last update - 02:38 16/11/2006
It pays to pollute
By Zafrir Rinat
Several times a year, the Environmental Protection Ministry's green police conduct special operations to nab people who dump waste in forbidden areas. Many criminals are caught and indicted, but they have little cause for concern: They stand an excellent chance of facing a merciful judge and little punishment.
Research due to be published in the next issue of Bar-Ilan University's legal journal "Mehkarei Mishpat" found that Israeli courts have an excellent command of pro-environment rhetoric but nearly always fail to hand down sentences that would deter environmental damage. Judges deliver silver-tongued speeches about the importance of cleaning up and protecting environmental resources, but fail to make criminal offenses a losing venture.
The research was conducted by attorney Orr Karassin, a Bar-Ilan lecturer and former director of Life and Environment - the Israeli Union of Environmental NGOs. Karassin examined 161 cases of illegal solid waste disposal - typically construction material - between 1998 and 2005. She analyzed corresponding judicial statements and sentences. The vast majority of these rulings were delivered in magistrate's courts.
She chose to examine solid waste disposal because it is extraordinarily easy for the prosecution to provide evidence and obtain indictments in these cases. This simplified statistical analysis and identification of judicial trends.
The 1984 Maintenance of Cleanliness Law permits judges to levy hefty fines and sentence offenders to up to two years in prison. The court can also order the perpetrator to pay for the clean-up. To this end, judges must obtain an estimate of the damages.
Karassin cites rulings that express highly developed judicial awareness of environmental issues. Based on their words, the judges indicate an understanding of the severity of these violations and the need for harsh punishment. Tel Aviv Magistrate's Court Judge Dorit Reich-Shapira wrote, "Anyone with eyes cannot remain blind to the piles of waste that decorate every piece of open ground. The sight of man's disregard for the land and lack of consideration for flora and fauna is heartbreaking."
Another judge, Irit Mordechai of the Beit Shean Magistrate's Court, wrote in a similar case, "Until the public in general and criminals in particular perceive this as a grave violation that damages public property and the quality of our environment, the scourge will not be abolished."
Words without action
But Karassin's data bear witness to the broad gaps between judicial rhetoric and sentencing. Between 1998 and 2005, the average fine for first offenses did not increase, despite a profound shift in public perception of the gravity of environmental crimes. The average fine levied, as a percentage of the maximum fine permitted by law (which increased in 2002), actually declined.
The extent to which judges avoid sentencing offenders can be seen in cases where perpetrators admitted guilt. On average, this group received half the fine imposed on individuals who agreed to a plea bargain. Pleading guilty is apparently a wise move. Moreover, judges almost never delivered sentences other than fines. Of the sentences, only 1 percent imposed prison time, 4 percent revoked truck owners' licenses, and 5 percent ordered perpetrators to clean up their mess. It is no wonder that such light sentences are infrequently appealed.
But my father is ill
Karassin analyzes individual cases to illustrate contradictions between rhetoric and sentencing. Four years ago, Haim Ben Hamu was indicted for illegally disposing of construction materials. The Kiryat Gat Magistrate's Court fined Ben Hamu NIS 8,000, despite previous indictments and the prosecution's testimony on his profits from these crimes: an estimated NIS 250,000 per year.
Personal circumstances, like the health of the defendant or members of his family, are among the most common considerations judges cite in explaining lenient sentencing. Karassin presents cases in which judges emphasized the gravity of the violations but delivered light sentences in light of such circumstances. In one case the judge fined the defendant NIS 10,000, but he appealed in the Nazareth District Court. The court reduced the fine to NIS 2,000 based on personal circumstances - even though the offender had been caught dumping waste in Givat Hamoreh Forest, near a sign clearly indicating that developmentally disabled children maintain the forest and request cooperation in keeping it clean.
The research reveals that despite the strict order in proceedings leading to a ruling, sentencing testimony is characterized by a worrisome lack of evidence. "There was not a single case in which a judge demanded acceptable evidence regarding the defendant's personal circumstances or recorded testimony to support a defendant's hardship claims. This leaves prosecutors helpless, since they lack access to evidence that would contradict the defendant's claims," she writes.
Karassin did not find a single judge who demanded the prosecution present evidence or expert opinion regarding the extent of environmental damage, the cost for enforcement authorities or defendants' profits.
In addition, Karassin says judges fail to understand the moral significance of environmental crimes, and mainly consider them an aesthetic nuisance or acts that compromise the public's enjoyment of nature. "This leads to the conclusion that quality of life - rather than life itself - is harmed," Karassin writes. "This [perceived] lack of damage to life, but rather only to its quality, is certainly not considered something that demands grave moral consequences."
Karassin cautiously explains the reasons she sees behind the courts' sentencing policy. It is clear to her that there is a gap between recognition and sentencing, but she does not have complete explanations for why the gap exists. This would require additional research into psychological aspects of the courts, she says. She suggests one explanation that actually takes prosecutors to task for failing to provide the court with complete information regarding the implications of damages. They frequently lack knowledge regarding the risk to health or water sources, or the cost of repairing damage.
"My research clearly illustrates the need for a change in the courts' handling of environmental crimes," Karassin says. "The first change must be the judges' recognition of the moral aspect of environmental damage. The second change requires improved professionalism that would enable judges to comprehend the significance of damage - so that the fine would reflect the gravity of the offense and the profits earned by offenders. This requires training and seminars for judges."