Law vs. Ethics: The Infuriating Big Branch Mine Disaster Sentence

UBBMemorial

We really have to change sentencing guidelines so that white-collar criminals get the sentences they deserve.

Twenty nine men were killed in West Virginia’s Upper Big Branch coal mine explosion six years ago, and former Massey Energy CEO Don Blankenship, who was  found guilty of conspiring to avoid safety regulations that could have prevented those deaths, received only a one-year prison sentence and a fine.

A federal jury convicted Blankenship last year of a misdemeanor conspiracy to violate mine safety standards at Upper Big Branch. The jury acquitted him of felonies that could have put him in jail for 30 years. The judge handed down the stiffest sentence allowed for his misdemeanor conviction, but U.S. Labor Secretary Thomas Perez, prosecutors and the family members said later that the punishment was far too lenient for the nature of the crime.

Indeed it was. Corporations play the odds in a risk-reward game. If violating rules, regulations and laws can save or make millions and the eventual penalty when and if the company is prosecuted is only a fine, many companies and executives think it’s a risk worth taking. . If the risk also includes significant prison sentences for decision-makers, the risk-reward ratio changes significantly.

Blankenship was CEO of a company that intentionally risked the lives of its employees, and 29 men died. One year in jail looks like a rap on the wrist. Forget about the “Affluenza” kid: this sentence is far more disturbing.

“This man has no remorse at all!” a family member of one of the victims said. “He never approached none of us [after the mine disaster], he never told us he was sorry for what happened, and he knows he could have done the right thing.”

“I miss my family. (Blankenship) hugged his,”  he continued. “And all he gets is a year. The judge has done great; she gave him what she can give him. But there need to be stricter, more harsh penalties for people like that who put greed and money over human life.”

Yes.

43 thoughts on “Law vs. Ethics: The Infuriating Big Branch Mine Disaster Sentence

  1. “Ethics v. Law” is always a subject that I’ve had trouble with, and I even took a course (in which I cheated) on it.

    I basically ask myself 2 questions:
    1. Will I lose my job?
    2. Will I be sent to prison to have my asshole torn asunder?

    If the answer to both of those questions is “no”, I truly have no shits to give about the ethicality of the matter.

  2. I’m confused. If the charges were felonies, why was a misdemeanor being considered at all? Is there a flaw in the system itself — say a gaping hole where the guilt diminishes in inverse proportion to the number of positions between the person who makes the bad, dangerous or wrong decision and the harm done by its direct result? Or does the credit go to high powered defense attorneys earning their fees?

    I am admittedly ignorant, if not also naive, when it comes to legalities; I’m the sort of person who thought of the demise of phone booths as proof that Superman had flown, as had truth, justice and blah blah. And I may be making false comparisons. Still and all, it continues to surprise me when I recall that the master of the Exxon Valdez — also convicted of a misdemeanor (negligent discharge of oil) — was merely fined $50,000, and sentenced to 1,000 hours of community service. Was it ignorance of the law when I reckoned that if the oil spill had taken place off the Malibu Coast instead of Prince William Sound the sentence would have included jail time? And no human lives (though many livelihoods) were lost by that piece of carelessness. The CEOs of Tyco Corporation spent over eight years in prison on felony charges related solely to the amount of unauthorized compensation they received for doing their jobs.

    How is the death of 29 men just the result of an unethical, poor, or even dangerous business judgement any less worthy of punishment than stealing more money than you’re entitled to . . . or than the sentencing of those causing multiple traffic deaths in which the number of people killed is at least considered an automatic aggravating factor?

    Or do I just have to suck it up.

    • How is the death of 29 men just the result of an unethical, poor, or even dangerous business judgement any less worthy of punishment than stealing more money than you’re entitled to . . . or than the sentencing of those causing multiple traffic deaths in which the number of people killed is at least considered an automatic aggravating factor?

      Does it constitute manslaughter under the law?

      Can you define manslaughter?

      • Manslaughter is typically defined as recklessly causing the death of a person, meaning you knew there was a significant risk and went ahead anyway.

        • I wonder how this factors in with some of the more dangerous of professions, like deep water crab fishing, or military service, where a certain number of deaths per year are basically guaranteed.

            • Exactly. Mike Rowe gave a Ted Talk (in the days before they were hijacked by identity politicking regressives.) in part about safety, and he recalled an Episode of “Deadliest Catch” where in the face of exceptionally dangerous conditions, he ran up to the captain and said “OSHA?” and that captain said “Yeah, Ocean.” To which Mike said, “No no, OSHA.” Ans the captain said something to the tune of: “Son (Which Mike found funny, because the captain might have been younger than him), I’m not here to get you home safe, I’m here to get you home rich.”

              Is the expression of the risks involved, and the acceptance of those risks on behalf of the worker sufficient to avoid liability, and if not, how do these exceptionally dangerous jobs not get litigated into obscurity?

  3. Maybe part of the problem is that the CFR has grown to how many shelf feet and really important regulations, like, you know, mine safety, become obscured. Maybe some regulatory addition by subtraction is in order. And legislatures are legislating public restroom issues?

    Basic labor safety. What’s more clearly a legitimate governmental function? Talk about Dickensian. Where’s Theodore Dreiser these days?

    • Boy, no kidding. I hadn’t seen it before. I’d like to know how often Blankenship has visited. He never apologized or contacted the families—it would have made him look guilty, you see.

      • Needless to say on the advice of his defense counsel and the company’s liability insurance defense counsel and the D&O defense counsel.

  4. Well, Jack, it seems to me that there were stricter penalties available in the form of additional crimes than the ones which the mine CEO received. The jury simply chose not to find him guilty of the crimes which carried them.

    Yes, this was an injustice in the sense the that the punishment doesn’t appear to fit the wrongdoing, although having not seen all the evidence, I am loath to reach the conclusion that the punishment definitely should’ve been more harsh than it was. But I agree it certainly looks that way given the reporting you linked.

    I don’t disagree with your concern, but two things strike me as important; one is that the man was evidently charged with much more serious crimes, and found not guilty of them. The other is that we don’t have access to the evidence or arguments presented at trial, so our conclusions as to their efficacy are essentially based on the optics of the case rather than the facts.

    So given what we don’t know, I’m not sure calling for tougher laws is a response I would agree with. No doubt a further inquiry might be in order consistent with the law, but absent the critical facts of the case, I can’t yet reach an intellectual conclusion that criminal wrongdoing was insufficiently punished. Emotionally, though, reaching that conclusion is unavoidable.

    • I agree with that. I would prefer to see a strict liability standard, just as I would, in government, with the Presidency. Ken Lay’s defense was that he didn’t know what was going on. That’s Obama’s defense with all the agency screw-ups and corruption. My view: I don’t care. You’re in charge, you allowed this to happen, you’re accountable. And when it is shown that you intentionally put lives in danger, whether it is called a felony of a misdemeanor, and 29 people die, that accountability has to translate into really tough penalties, or people like Blankenship will always roll the dice.

      • Why should we not have strict liability for everything, then? Just abolish all requirement for intent or even negligence for all crimes.

        Or we could simply adhere to our legal traditions.

        • Our legal traditions are to let white collar criminals off the hook for crimes far worse than anything simple citizens do, including serial killing. That needs to change. Common Law did not anticipate these things, and the law has been too slow to adjust.

  5. Jack said, “A federal jury convicted Blankenship last year of a misdemeanor conspiracy to violate mine safety standards at Upper Big Branch. The jury acquitted him of felonies that could have put him in jail for 30 years. The judge handed down the stiffest sentence allowed for his misdemeanor conviction…”, “One year in jail looks like a rap on the wrist. Forget about the “Affluenza” kid: this sentence is far more disturbing.”

    Forgive my personal ignorance in how criminal law works, but…

    If the federal jury acquitted him of felonies and found him guilty of misdemeanor conspiracy didn’t the sentencing Judge do all he could do based on the conviction? If the judge would have sentenced him for more than the law allowed for the misdemeanor wouldn’t we be talking about this in an entirely different way?

    Again, “One year in jail looks like a rap on the wrist.”

    I completely agree; however….

    My question is why did the federal jury acquitted him of the felonies that could have put him away for 30 years and only find him guilty of misdemeanor conspiracy? What in the law or in this particular case warranted that federal jury to do such a thing when there was so much loss of life due to what appears to be an intentional conspiracy to neglect safety that resulted in death?

    Jack said, “We really have to change sentencing guidelines so that white-collar criminals get the sentences they deserve.”

    It doesn’t sound to me like it’s the sentencing guidelines that are the root problem here, he was convicted of a misdemeanor not a felony, the sentencing guidelines “seem” appropriate for a misdemeanor; the root problem is WHY wasn’t he convicted of a felony.

    • Whether the law calls it a felony or a misdemeanor, he was convicted of a conspiracy to avoid safety regulations, and the jury agreed that this led to the deaths of 29 people, though it was not the proximate cause. The jury, I would guess, couldn’t agree on proximate cause and also split over whether to send this life-time coal huy who rose from dirt poverty to be a CEO of a huge coal company to jail.

      So yes, the guidelines didn’t fit this case well, and neither did the available charges and the current trend of the law. From an ethical point of view, a man who knowingly makes a dangerous job more so for his own employees is despicable whether anyone dies or not…and one year is certainly not sufficient punishment to deter similar conduct.

      • Ignorance speaking here…

        Aren’t Judges hands kind of tied to the maximum sentence allowed by law for the conviction but the Judge can reduce the sentence if they see fit but they can’t increase above the maximum; or is there something more that I’m missing?

        I’m really just trying to understand the process a little better to help me understand why he got the sentence he did?

        • He got the sentence that he did because the jury acquitted him of the felony charges,

          In addition, he was never charged with manslaughter, It is unclear why the prosecutor declined to charge Blankenship with manslaughter.

        • You’re right… But Jack wasn’t blaming the judge, he was blaming the system .This wasn’t a mistake in prosecution, or in sentencing, the system just isn’t designed properly to deal with cases like this.

          • What part of the system can not handle this?

            The part where the defendant has the right to legal counsel?

            The part where said legal counsel vigorously defends the defendant.

            The part where a jury decides the verdict based upon the evidence presented?

            Is Jack marshall saying that due process is the problem?

            • I’m going to take a step back from what I think Jack is saying, and let him answer that.

              What I’m saying, is that the system has blind spots. Did he commit the crime he was charged of, and was the prosecution able to convince a jury of that? The answer is obvious. But the fact remains that 21 people died because management purposefully disregarded or contravened safety regulations. The problem isn’t that the jury acquitted on those charges, it was that more appropriate charges weren’t or couldn’t be brought. This is just one example of things that should obviously be discouraged by pain of law that seem to squeak by somehow.

              For example, in corporate cases, we often punish companies for the actions of their agents, where it would be much more beneficial, more just, and more of a deterrent to punish the agents. Look at the ruling against JP Morgan Chase following the 2008 subprime bollocks: some amount of money was paid by the company. Who paid that? The investors who ultimately lost their investments in the first place. What happened to the people actually pulling the strings? They got their bonuses. It was wrong. Occupy Wall Street had a point, even if they were too uneducated and disorganized to know what it was.

            • Jack Marshall is saying that there is an embedded bias in the law, sentencing and tradition that presumes that white collar criminals are materially different from other criminals, and are, like the Pirates of Penzance, “all noblemen who have gone wrong.” And that’s just not true.

  6. This case is tragically typical for criminal trials for white collar crimes resulting in death. The executives are insulated by many layers of managers, decision making processes are so convoluted and confusing and individual accountability so diluted that it is hard for the average juror to find guilt beyond a reasonable doubt. I would suspect a civil trial with a lower standard of proof might be more successful. It is sad but true that often the only way to hurt these people is through their pocketbooks.

  7. What the hell was the matter with that jury? If the judge was forced to give him the max on a misdemeanor because the jury acquitted him of the felony charges, then he/she did his/her best. If Blankenship was tried by a “jury of his peers,” does that mean he was acquitted by a bunch of other unethical, greedy mine owners? You’d think any jury in a mining community would have come down harder on this evil man. I don’t know how big his fine was, but a year playing golf in a minimum security prison proves that justice (if there is any) was not served for the poor 29 who died because of others’ greed.

    • I admit something similar was my first thought. What was wrong with the jury? Was one an investor in another mine or had relatives, was there some kind of hidden conflict of interest? Deliberately nuking safety rules affecting many lives deserves an accounting and harsher penalties. Fines are paid by others.

  8. I spent about 6 months doing MSHA (mine safety work) on behalf of employers right out of law school. It was the worst 6 months of my life — right up there with the few times I had to handle infant/child lead paint poisoning cases. If I hadn’t been able to transition to better legal work, I would have defaulted on my loans and flipped burgers for a living rather than continue on that course.

  9. Back to white-collar crime: I understand that Sarbanes Oxley and the other recent changes to federal law make it easier to prosecute individuals as well as companies. This may be why so many Republicans want the law(s) changed. Until recently, it was hard to build accountability/culpability cases (as mentioned several times above) and even harder to prosecute them against the battalions of lawyers sent in by the accused.
    If I recall correctly, Blankenship also tried to buy a judge by financing the judge’s election. But his misdemeanor conviction has tied him to the deaths of the miners. For the rest of his life.
    Any suggestions for a pithy gravestone?

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