There’s an interesting op-ed in The New York Times today by civil rights lawyer and author Chase Madar about the use of criminal prosecutions in major public safety disasters. It mentions the Upper Big Branch Mine explosion, and the successful prosecution of former Massey CEO Don Blankenship:
The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.
Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.
Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year sentence. Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.
Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory loosening of mine safety standards in state history. While on its deregulatory binge last year, the state almost entirely rolled back aboveground chemical-tank safety standards enacted in response to the Elk River contamination disaster of 2014 – which made the water of 300,000 people undrinkable.
The general point is that criminal prosecutions won’t stop mine disasters, or water pollution, or food contamination — and that the media give far too much attention to criminal trials in these incidents, at the expense of coverage of the many failings of our civil and administrative regulatory systems that are supposed to protect the public. Attorney Madar opines:
Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now facing cuts to its $1.5 million annual budget.
A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.
OK. Now one glaring problem with this whole line of thinking is that, while telling readers that these prosecutions are little more than a “mediagenic booby prize” that we mere news reporters fall for every time, Attorney Madar seems to be getting his information about the glaring holes in regulatory systems that aren’t explained to the public from — that’s right, the mainstream media.
For example, that link in the section I just quoted, about the West Virginia University research center that helped uncover Volkswagen’s cheat and is not facing budget cuts? That goes to a New York Times story that revealed this very information. The author’s beef about lax food inspections and inadequate funding for the Securities and Exchange Commission? That’s from another Times story. That section of the op-ed also links to a CNN online piece which explains in some detail the weaknesses in existing food safety laws, regulations and enforcement.
And not for nothing, but the section that contrasts the Blankenship prosecution (and presumably the media attention it got) to changes in West Virginia’s mine safety laws … well, that links to a Daily Kos aggregation that, while fairly convoluted, collects some variety of local media accounts of a bill that received quite a lot of coverage from, among others, the Gazette-Mail (see here, and here for example).
It would be more helpful if Madar offered some specific examples of where he believes the media over-hyped a criminal prosecution in a white-collar case, while ignoring the underlying lax regulatory system that allowed such crimes to occur in the first place.
Also troubling is the lack of any actual data or statistics to back up the suggestion that prosecutions of CEOs are on the rise or somehow are taking over the system, replacing actual administrative and civil enforcement of various public safety nets:
With regulatory structures in willful disrepair, the corporate world has become one more sphere colonized by the police and prosecutors. But even as progressives have begun to question the overuse of criminal law elsewhere, its encroachments into the white-collar world are generally cheered: Finally, a chance to stick it to “crime in the suites”!
As best I can tell, the op-ed cites just three instances of white-collar prosecutions — Blankenship, Flint, and Peanut Corporation of America. Also not for nothing, but the Flint criminal charges really present quite a different sort of situation — prosecuting public officials for concealing important health information — than trying to send corporate executives to jail. The truth is that proper enforcement of regulatory systems and use of existing criminal statutes are equally rare in our society.
And does anyone really believe that media coverage of the Flint criminal charges has overshadowed media coverage of our broken system of providing and protecting public drinking water to citizens of Flint and many other communities around the country? I would be the last person to disagree with the argument that we need more and better journalism about these kinds of issues. But saying we need more and better coverage is quite a different thing that trying to make the argument that we don’t have those things because “media attention [is] disproportionately expended by the lust for criminal punishment,” as Madar writes.
Oddly enough, Madar’s links refer to previous coverage of the January 2014 Freedom Industries chemical spill, but his op-ed doesn’t mention one of the real underlying problems with using criminal prosecutions in these cases — the view of some judges (and apparently some assistant prosecutors) that crimes that contaminate drinking water are “hardly” crimes and the corporate officials who commit them are hardly criminals. There’s no mention of the very short sentences available in cases like Don Blankenship’s, or of the movement among many safety advocates to toughen such laws.
Moreover, Madar doesn’t even make an attempt to argue a key point he would need to make to support his conclusions: that putting a CEO in jail for safety crimes doesn’t deter other CEOs from committing the same crimes. Certainly in the Blankenship case, it appears that the coal executive lobby is concerned about their exposure under the legal theories that put Blankenship in jail.
I’m probably making too much of this op-ed. But it raises important issues, and there has long been an underlying argument in the public health and worker safety community about civil and administrative enforcement versus criminal prosecutions. And Attorney Madar falls into the straw man trap that suggests we have to choose between the two. Even while he insists almost in passing that “prosecution and regulation are not mutually exclusive,” he concludes in the end:
The injustice of the Flint contamination and other safety disasters demand a meaningful response. Criminal law is not the right tool for the job.
These kinds of disasters don’t have a silver bullet solution. To borrow a line from the U.S. Mine Safety and Health Administration, protecting workers and the public requires using all of the tools in the box.