Rick Henderson's article on the increasing size and scope of the government's environmental-crimes enforcement program ("Crimes Against Nature," Dec.) shed much-needed light on an important subject. He neglected, however, to point out how this enforcement explosion is subverting constitutionally protected property rights.
Criminal statutes for environmental offenses were meant to stop midnight dumpers and others who threaten the public health. Overzealous prosecutors are instead prosecuting people for acts protected by the Fifth Amendment. In Lucas v. South Carolina Coastal Council, the U.S. Supreme Court ruled that an owner has the right to use his property so long as the public is not harmed. Not only do many recent wetlands prosecutions fail to prove any harm to the public or the environment, they utterly ignore the constitutional rights of an owner to use his property.
Courts have long recognized the Bill of Rights as an affirmative limit on criminal law. Where purportedly criminal activity is protected by the Bill of Rights, a prosecution for engaging in that constitutionally protected activity must fail. Under the First Amendment, one cannot be prosecuted for engaging in constitutionally protected free speech without a permit, even where the law purports to require one. The same should be true under the Fifth Amendment for permit requirements regarding the constitutionally protected use of private property.
In the case of wetlands violations, people are being prosecuted and sent to jail for using their property without a permit. But the government could not have constitutionally forbidden the wetlands disturbance without paying just compensation. Bill Ellen never sought a permit to fill any wetlands, because he never intended to disturb any wetlands, and the purported wetlands that he did disturb were so minimal and marginal that no impact of any kind could be shown by the government. In the case of Ocie and Carey Mills, a father and son building a family home in Florida who were jailed for 21 months for wetlands violations on their privately owned lots, a subsequent court ruled that the "wetland" they disturbed probably was not a wetland at all.
In short, the government is now in the business of sending people to jail for harming nothing. The theory under which these cases are prosecuted—a vague notion about the rights of marshes and trees—leads to the violation of the constitutional rights of humans.
Nancie G. Marzulla
President and Chief Legal Counsel
Defenders of Property Rights
Your most interesting and persuasive article on the absurdity of certain EPA actions raises a question: Is it likely that someone will go to prison for five years for clearing brush from irrigation ditches? I cannot imagine that the EPA fanatics are that fanatical.
An article in the November issue of The Washington Monthly suggests that the story behind the Bill Ellen case is different from the one described by Rick Henderson. If the facts are as set forth in Mr. Henderson's article, the EPA is acting outrageously. But if the facts are as set forth in The Washington Monthly, the EPA and the jury may not be out of line.
New York, NY
Rick Henderson does your readers a great disservice by falsely equating environmental offenses with vice offenses. The essence of a true vice offense is that such harm as flows from its commission inures only to the detriment of the involved actors (as, for example, the risk of sexually transmitted disease from prostitution inures only to the detriment of those involved in the prostitution). In such cases, harm to third parties results from the prohibition of the vice, not from its indulgence (as, for example, the violent crime that results from the illegality of various drugs).
Henderson says that "[l]ike laws against drug use or prostitution, environmental prosecutions are meant not to protect persons or property but to send a message about values." Environmental laws are not like laws against drug use or prostitution. Environmental laws are designed to protect persons not involved in the prohibited conduct from the harm resulting from that conduct. Thus, for example, laws regulating the disposal of hazardous wastes serve to protect those not involved in such disposal from being poisoned by their own water supplies.
I have no quarrel with Henderson's arguments that the punishments meted out to environmental offenders are often excessive, that a criminal conviction not based on the defendant's criminal intent is a violation of basic civil liberties, and that many environmental statutes are vague to the point of incomprehensibility. But I question his claim that environmental offenses are best dealt with under the "body of law dealing with…crimes that are planned but not consummated."
The law dealing with "inchoate" crimes requires a very specific kind of intent. While a murder charge can be founded upon an intent to inflict bodily harm or an intent to commit a felony, for example, the charge of attempted murder can be founded only upon a specific intent to kill. Under such a legal regime, a deliberate polluter could escape liability by claiming that he dumped toxins into a water supply not in an attempt to poison that supply but merely with reckless disregard as to whether poisoning would result.
Traditional civil and criminal codes can, as Henderson says, deal with environmental threats, but not in the manner he suggests. He is correct in observing that "[t]he traditional criminal code treats actions that cause different amounts of harm in different ways," but he neglects to mention that traditional criminal codes penalize behavior that poses risks of danger to others even when no one is actually harmed. Pollution, whether a particular instance of it causes observable harm or not, is properly punishable for the same good reasons that it is illegal to discharge a firearm in an urban area, even if one ends up causing no injury or damage: The risk of harm is great and the consequences are often irremediable.
San Francisco, CA
Mr. Henderson replies: Mr. McAulay questions the likelihood that Nevada rancher Wayne Hage would spend five years in prison for clearing irrigation ditches on his land. At the time I wrote the story, Hage was under indictment for violations of the Clean Water Act. Federal prosecutors took the case very seriously indeed. Mr. Hage has been a thorn in the side of land-management bureaucrats. He is suing the federal government for seizing some 2,000 head of cattle that wandered near the edge of the unfenced boundary of his ranch. As long as vague, punitive laws are on the books, persons like Wayne Hage can be selectively targeted for prosecution. The National Law Journal's survey of corporate general counsels underscores my arguments. Only 30 percent of the attorneys questioned believed full compliance with environmental laws is even possible. When everyone is guilty, no one is safe.
We received several letters asking about the Washington Monthly story Mr. McAulay cites. In it, author Bill Gifford uses the Bill Ellen case as one example of what he considers shoddy reporting and unbridled partisanship by The Wall Street Journal's editorial page.
The Washington Monthly story, however, has its own problems. For example, Gifford says Ellen illegally ordered workers to dump dirt in a "duck pond." In fact, the area in question was to become a management office and had been classified as an upland by the U.S. Soil Conservation Service.
Gifford writes, "Ellen had filled or altered close to 1,000 acres." It's not clear how Gifford came up with this number (the entire project covered 3,000 acres). Furthermore, he insinuates, without evidence, that there was something improper about the work. Yet Ellen obtained 38 development permits for the Tudor Farms project; it's no surprise that he "altered" the property.
Mr. Dulaney doesn't get the point of the analogy between environmental crimes and vices. I consider vices to be those actions that cause no harm to others but still carry criminal penalties. I do not argue that environmental laws should not exist. In most cases, however, fines or other administrative sanctions should be used to punish offenders.
"Midnight dumpers," and other persons who intentionally cause harm to others, may deserve prison terms. I did not deal with those cases, and said so early in the story. Instead, I reported about persons who faced the loss of their liberty because they violated what former Attorney General Thornburgh called "the sanctity of…the earth's environment." Sending people to jail for such offenses indeed conveys a message about values. It does nothing to protect people or their property, the traditional sphere of the criminal law.
As for Mr. Dulaney's contention that environmental crimes should be treated differently from other criminal violations because the "risk of harm is great and the consequences are often irremediable," I agree with Peter Huber—this approach borders on witchcraft.
I thank Nancie Marzulla for her comments.
Do Teachers Learn?
I didn't think anyone was ever going to notice that there isn't much research in a lot of educational "research" ("Why Johnny Can't Teach," Dec.). As a former teacher, I appreciate Jonathan Marshall's comments on Project STAR and Henry Levin's work. Why don't educators pick up on these methods? In real science, others would try to repeat the work.
Mary R. Kahn
Morgan Hill, CA
As a recent graduate of a master's degree program in education, I can identify with Jonathan Marshall's article. Learning to evaluate the quality of research was not a goal of the program in which I participated. No student was required to conduct empirical studies or to take statistics. Most teachers who cited research seemed to do so without concern for its quality, and reliable and accepted results were rare.
I was dismayed, however, to see Mr. Marshall's praise of "cooperative education." This system of learning could roughly be described as educational Marxism: "from each according to his ability, to each according to his need." In its purer forms, cooperative education involves assigning learning tasks to small groups of students with varying academic ability. The members of each group are expected to solve a problem or learn a skill and make sure all other members of the group understand the solution or skill.
In a 1990 article published in the Journal for the Education of the Gifted, Ann Robinson suggests that regular use of cooperative education exploits talented students. With regard to gifted children, Ms. Robinson criticizes the research on cooperative education for being weak and over-generalized. Robert Slavin, whom Mr. Marshall applauds, is among the researchers whose work she reviewed.
Cooperative education may be worthwhile in some settings, and its occasional use wouldn't likely be harmful. But as yet another avenue for placing the group's interests above the individual's, it should be viewed with skepticism.
Jonathan Marshall is right that much education research is weak and politicized, but that still leaves us with a vast reservoir of good, sensible, and useful material. The 1986 Handbook of Research on Teaching from the American Educational Research Association references more than 4,600 researchers in the space of its more than 1,000 densely packed pages. It has much value and little nonsense.
Marshall should look at the stunning gap between the good research that exists and the almost total lack of interest in this research on the part of teachers, school policy makers, and political leaders. In her seminal summary of the great debate on reading instruction, Jeanne Chall said: "Of the many teachers and administrators I talked with, not one ever said that he or she had been influenced to make a change by an article that reported an experiment or that described a finding about the reading process. It seems that research findings, carefully selected for the purpose, serve primarily to back up decisions and commitments already made."
Donald Orlich, whom Marshall quotes, lists 28 citations in support of his well-focused six-page summary—no shortage of worthy research there. The paragraph from which Marshall quotes goes on to state, "We need a national moratorium on reforms so that educators and local policy makers can analyze their own problems." Orlich's recommendation is more useful than Marshall's call for more and costlier national research efforts.
Mr. Marshall replies: Ms. Littlefield's scenario of bright students being victimized by lazy freeloaders in cooperative learning situations is not borne out by numerous, well-controlled studies that document the strong achievement gains from this instructional method. Slower students profit from peer tutoring; quicker students achieve mastery by helping others in the group along. Learning, in other words, is not a zero-sum game. In many well-implemented cooperative learning situations, individuals as well as groups are assessed, discouraging "lazy" students from coasting at the expense of their fellows. And Ms. Littlefield should consider the possibility, admittedly more speculative, that cooperative modes of learning may be more appropriate than purely individualistic ones to the real world of work, which rewards successful teamwork to achieve common objectives.
If Mr. Wolf rechecks my story, he will find that I both decried and analyzed the failure of teachers and administrators to take advantage of what good educational research does exist. But the "vast reservoir" of research Mr. Wolf points to is, in fact, heavily polluted by unreliable work of questionable methodology. The field simply has not adopted sufficiently rigorous standards. To throw more money into bad research would be a terrible waste, but complacency about the adequacy of our knowledge would be equally misguided. Thus Orlich calls for a moratorium on faddish reforms, not on good research.
I wish I could be as sanguine about Prozac as is Jacob Sullum in his review of Peter D. Kramer's Listening to Prozac (Dec.). About four years ago, my physician prescribed Prozac for non-specific depression. Within days, I was unable to sit still for more than a few minutes; I sweated profusely and had trouble sleeping. Within the week, I was having dreams of suicide. I ceased taking the pills, and these symptoms disappeared.
I realize that my one account is not sufficient to condemn a product that has apparently brought much relief to many. However, Mr. Sullum's article portrays this drug as a panacea. I know from experience that it is not. I was quite sorry to see him make his portrayal without at least a reference to those who have had experiences such as mine.
Stanley M. Morris
In his review of James Q. Wilson's book The Moral Sense, Loren Lomasky pays considerable attention to the question of whether a "moral sense" is innate or acquired. The arguments against any form of innate ideas are, I believe, conclusive. It seems clear to many of us that a sense of morality is achieved through cognition, by an acknowledgment of causality, especially the causality of volitional thought and action.
Rationally moral behavior is simply that which is necessary to human survival, well-being, and happiness—both solitary and social. And the best ethics is that set of principles which optimizes the attainment of those goals over the course of each individual's life. The very act of attempting to persuade others of certain moral ideas, by Lomasky and the authors he cites, is tacit acknowledgment that such volitional cognition, with respect to morality no less than other concerns, is possible and necessary.
Daly City, CA
One of Loren Lomasky's criticisms of James Q. Wilson's book is curiously anatomical: the failure to identify a discrete organ of moral sense. The criticism is unjustified. On page 24 Wilson identifies the limbic area of the brain as the probable seat of the moral sense. More significantly, he specifies the organ metaphorically on page 238, where he refers to the "teachings of the heart."
Wilson uses a wide variety of synonyms for the word sense to tell the reader that it is not to be interpreted in the same way as those senses for which there are receptor organs like the eyes, ears, and nose. One is the plural form senses. Another is sentiments. On page 239 he accepts somebody else's "intuitions" as a possible synonym, and he refers to Aristotle's "natural striving" on page 236. The synonym predisposition occurs frequently, and there are various extended phrasal characterizations, as in his reference to "habituation operating on a human nature innately prepared to respond to training."
In short, it is perfectly clear that the word sense is not used in the sense of sensory organ in this most sensible book. Wilson's point is that we have something other than reason and other than the teachings of our individual cultures that impels us to do good things. The evidence that Wilson adduces for this something won't go away, whatever you call it.
Richard L. Leed
Professor of Linguistics
This article originally appeared in print under the headline "Letters".