May 05, 2010
Nothing prevents the government from criminally prosecuting
corporate CEOs who willfully ignore health and safety standards,
killing workers, as in Massey Energy's Upper Big Branch Mine disaster,
and causing environmental catastrophe, as in BP's massive oil spill in
the Gulf of Mexico.
For years, we haven't seen many corporate criminals prosecuted in
the United States, thanks to the power of corporate lobbyists and the
reluctance of government officials to take on business interests.
A PBS Frontline show "A Dangerous Business"-notes
that, in the 32 years since OSHA was created, there have been over
200,000 workplace deaths. But OSHA has referred only 151 of these cases
to the Justice Department for criminal prosecution. Of these, only
eight have resulted in prison sentences for company officials.
There is a lot of political pressure not to seek prison terms for
CEOs of unscrupulous companies, and little public sentiment pushing the
government and prosecutors to get tough on corporate criminals.
But that may be changing.
The explosion at the Deepwater Horizon rig off the coast of
Louisiana that killed eleven people and led to an oil spill that will
soon surpass Exxon Valdez in its size and destructiveness led Attorney
General Eric Holder to announce a Justice Department investigation into
health and safety protocol aboard the BP-leased the rig.
BP was involved in a Texas oil refinery explosion that killed 15
people in 2005. And the company seems to have foregone the safety
systems that allow deep-water oil rigs off the coast in Northern Europe
to avoid catastrophic accidents.
Public patience with accidents caused by lax safety and environmental standards is wearing thin.
This became clear after the Massey Energy mine disaster.
"I live in West Virginia, and my sense is the tide is turning
politically [in the wake of the mine disaster]," Russell Mokhiber,
editor of Corporate Crime Reporter
told me. "With the oil spill in the Gulf and with the deaths of the
mine workers, there is fertile ground for a renewed social movement
against corporate crime."
Mokhiber points to a raft of opinion pieces calling for criminal charges against Massey Energy CEO Don Blankenship.
Blankenship is a particularly odious character. A heavyweight in
Republican politics in his state, he ran a justice off the West
Virginia Supreme Court and installed his own coal-friendly judge. Under
his leadership, Massey Energy has been cited for safety violations
again and again-with 1,300 violations in the Upper Big Branch Mine
alone since 2005, and 50 in the last month for poor ventilation--the
apparent cause of the recent disaster.
After 29 people died at the Upper Big Branch mine last week, Bob Franken of The Hill newspaper in Washington, DC, wrote:
"Perhaps it's time for Don Blankenship to get involved with the courts again. This time, as a defendant. The charge: murder."
Franken points out that the sentence for involuntary manslaughter in
West Virginia is one year in prison per case--or a possible 29 years
It's not such a far-fetched notion. In a 2005 memo to deep mine
supervisors, Blankenship ordered the miners not to work on anything but
"running coal." They were not to "build overcasts, do construction
jobs, or whatever." When a deadly fire broke out at Massey's Aracoma
mine, killing two men, the memo became Exhibit A at a trial that
ultimately resulted in a $2.5 million fine for the company.
That sort of direct complicity in flouting safety standards could form the basis for a criminal prosecution of Blankenship.
There is important legal precedent for bringing such charges.
Mokhiber cites the Ford Pinto case: In 1978, three teenage girls
driving in a Ford Pinto were hit from behind on Highway 33 in northern
Indiana. All three died from terrible burns after their car burst into
flames. An Indiana grand jury indicted the Ford Motor Company for
reckless homicide for making and selling the Pinto with an unsafe fuel
"Although Ford was ultimately acquitted, the criminal prosecution of
Ford Motor Company reestablished an important precedent: In certain
cases involving human health and safety, corporations and their
executives could be required to submit not only to the scrutiny and
sanctions of traditional federal agencies, but to state criminal courts
as well," The Corporate Crime Reporter notes.
Mokhiber sees parallels to the Massey Energy mine disaster.
Despite the intimidation factor of taking on a politically powerful
figure like Blankenship and a big company like Massey, the Pinto case
sets a precedent for an underfunded, public-interest-minded prosecutor
to do just that.
"The Pinto case was brought by a Republican state prosecutor in
Indiana," Mokhiber notes. "He was totally outgunned for resources by
Ford. He relied on law students for support. Even thought the company
was ultimately found not guilty, it set an important precedent."
Another role model Mokhiber cites is Ira Reiner, who was the LA
County district attorney in the early 1980s. Reiner made it a practice
to open an involuntary manslaughter investigation of a company every
time there was a death on the job. This resulted in many criminal
prosecutions and justice for the families of dead and injured workers.
The current political climate might produce more Ira Reiners.
Kristen Keller, the prosecuting attorney for Raleigh County, and the
only prosecutor in West Virginia who has the power to press charges in
the case, recently told Corporate Crime Reporter: "If there is evidence
to support a homicide prosecution, I would not hesitate to prosecute."
In the last week, several news outlets, including NPR, the Washington Post, and Reuters, have reported that a Federal criminal investigation is underway against Massey Energy.
NPR also reported that the government was looking into possible bribery of officials at the Mine Health and Safety Administration.
"Most people aren't familiar with the history of criminal
prosecution for worker deaths," Mokhiber says. "There is a whole
generation that has forgotten the Ford Pinto prosecution, and just
thinks workers die on the job sometimes and no one is responsible"
But that is not the case "if the prosecution can make a case that
Blankenship knew the situation at the mine and if it meets the legal
definition of involuntary manslaughter."
Back in the 1980s, Mokhiber says, Congressman John Conyers proposed
a "public endangerment" law that would have held corporate executives
criminally liable if they knew of a product or process that could cause
harm and failed to report it. But corporate lobbyists tied up the
proposed legislation and it died.
Now is a good time for a renewed effort of that kind.
Meanwhile, prosecutors at both the federal and state level have the
power to prosecute executives who have direct involvement in negligent
practices by their companies that lead to worker deaths and
The only thing holding them back is politics. That's where the renewed social movement comes in.
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