Outside a West Virginia courthouse, the families of the
dead waited for Don Blankenship, the former chief executive of Massey Energy
Inc., about to be sentenced for a mining disaster that killed 29 miners at
Massey's Upper Big Branch mine in Montcoal, W. Va.
"I miss my son, my brother, my nephew!" shouted
one man as camera crews captured the moment at the federal courthouse in
Charleston on Wednesday. "How come you never came to apologize to
me?"
Every day 12 people - sons and brothers, mothers, and
daughters - die on the job because of hazardous conditions, but rarely do their
employers face serious jail time, or anything more than a misdemeanor charge.
Such prosecutions are difficult - federal workplace
safety laws are weak, and there is often a lack of cooperation between federal
and state law enforcement.
But all that is changing. Important recent cases here and
elsewhere show prosecutors using a range of creative legal techniques to
navigate the gray zone between criminal and civil offenses that workplace
deaths often occupy.
Exhibit A: Blankenship, sentenced Wednesday to a year in
prison, making him one of the highest-ranking chief executives to face criminal
charges - and jail time - for workplace fatalities.
On April 5, 2010, an explosion killed 29 miners at Upper
Big Branch. Federal prosecutors argued that unsafe conditions caused the
explosion. Blankenship contended it was an accident, caused by natural gas.
Five years later, on Dec. 15, after weeks of testimony
about unsafe conditions in the mine, jurors found Blankenship guilty of a
federal misdemeanor of conspiring to violate mine safety laws. The jury
acquitted him of felonies that could have put him in prison for decades.
The conviction aligns Blankenship with a Philadelphia
roofer, a California film director, and a New Hampshire gunpowder executive.
All have been criminally charged in connection with the workplace deaths of
their employees, and all are going or have been to prison.
"It's one thing [for company owners] to have their
insurance company pay fines, and it's another thing to have them personally in
jail," said Barbara Rahke, director of PhilaPOSH, an advocacy group that
works to improve worker safety.
Increased accountability for owners and managers will
lead to improved workplace safety, legal experts say.
"We're seeing a boom in white-collar prosecutions,
and workplace prosecutions are part of it," said University of Maryland
law professor Rena Steinzor. "These are middle-class people running
companies. If they are prosecuted - even a few of them - there will be a
tremendous deterrent."
Successful criminal prosecutions often hinge on careful,
creative application of existing laws. The chief executives "aren't guilty
of murder because they don't say, 'I'm going to work to kill someone,' "
said Steinzor, who, in 2014, wrote Why Not Jail?, a book on a trend of criminal
prosecution for what had been considered civil offenses.
So it's up to prosecutors to find a different path to
conviction, particularly since federal officials themselves are frustrated with
the penalties in the federal Occupational Safety and Health Act.
"The maximum period of incarceration upon conviction
for a violation that costs a worker's life is six months in jail, making these
crimes a misdemeanor," Assistant U.S. Labor Secretary David Michaels
testified before Congress in October.
One response is what Steinzor calls an "Al
Capone" strategy: charging executives with "process violations"
rather than with crimes directly related to the deaths.
Blankenship, for example, was charged in federal court
with a misdemeanor - conspiracy to violate mine safety laws - and two felonies
involving making false statements about the disaster.
The jury convicted him of the misdemeanor and acquitted
him of the felonies, which could have added decades of prison time.
Federal prosecutors wanted U.S. District Judge Irene
Berger to throw the book at Blankenship, but given the law, Berger, a miner's
daughter, barely had a booklet to toss.
Berger sentenced Blankenship to the maximum penalty, a
year in prison and a $250,000 fine as he continued to assert his innocence.
"By putting profits of the company ahead of the
safety of your miners, you, Mr. Blankenship, created a culture of noncompliance
at Upper Big Branch," Berger said, the West Virginia Gazette Mail
reported.
A similar pattern of charges occurred in Philadelphia, in
the case of roofer James McCullagh, 60, of Meadowbrook, ordered to report to
prison April 29.
McCullagh violated federal safety laws by not issuing a
safety harness to his employee and friend Mark T. Smith, then 52, of Northeast
Philadelphia.
So, on June 21, 2013, when scaffolding gave way atop the
Old Zion Lutheran Church in Philadelphia, there was nothing to save Smith, who
fell 45 feet, bouncing off a lower roof, then bleeding and struggling for breath
on the sidewalk. He died at a hospital.
McCullagh lied to inspectors and instructed his workers
to lie as well, telling OSHA inspectors that they had been issued harnesses but
that Smith had decided not to wear his.
It wasn't true, and it never had been.
McCullagh's was the first local case that officials in
the U.S. Labor and Justice Departments could remember in which any criminal
sanction - even for a process violation - was brought against an employer on a
job-site death and only one of a handful brought nationally, a Labor Department
spokeswoman said.
McCullagh pleaded guilty to six charges - five felonies
in connection with the lying and one misdemeanor involving violating OSHA
regulations. He had been a repeat violator.
On March 29, U.S. District Judge Nitza I. Quinones
Alejandro sentenced him to 10 months for each felony and six months for the
OSHA misdemeanor, all to run concurrently.
"I think [the McCullagh] case is emblematic,"
Steinzor said. "Getting someone for lying to the agency."
In Georgia and New Hampshire, prosecutors took a
different approach, turning to state criminal laws to make manslaughter charges
stick against employers whose gross negligence caused worker deaths.
In Georgia, film director Randy Miller, convicted of
involuntary manslaughter in connection with the death of a film assistant, was
released from jail last month, halfway through a two-year term.
Shooting Midnight Rider, a biographical film about the
rock musician Gregg Allman, Miller ordered the crew set up on an active rail
track and trestle, even though CSX had refused permission. When a train roared
down the track on Feb. 20, 2014, Sarah Jones, 27, was killed.
In New Hampshire, the owner of a gunpowder manufacturing
plant was not even in the state when his Black Mag gunpowder factory exploded
in 2010, killing two employees.
That complicated matters for Coos County Attorney John
McCormick, who still managed to win a conviction against Craig Sanborn for
manslaughter and negligent homicide.
In December, the New Hampshire Supreme Court upheld
Sanborn's conviction, and he remains in prison, serving a 10- to 20-year term.
"Sanborn acted recklessly, consciously disregarded a
substantial risk," McCormick said in an interview. "We're not talking
about a roofer or a run-of-the-mill factory. He was manufacturing
gunpowder."
Sanborn consistently ran afoul of inspectors. A state
police bomb inspector denied Sanborn's application to store 1,000 pounds of
powder at the site, but Sanborn did it anyway.
McCormick said it was his decision, made in consultation
with OSHA, and relying on its investigation, to press the Sanborn case on state
court homicide charges.
So why didn't a similar prosecution - more serious
criminal charges carrying more significant jail time - happen in Philadelphia
in the McCullagh case?
One complication is the thicket of state and federal
agencies involved, each with separate goals and priorities and different laws
to enforce.
In this case, the U.S. Labor Department and OSHA
"determined that the referral to the Department of Justice [for possible
criminal prosecution] was the appropriate course of action," Labor
Department spokeswoman Lenore Uddyback-Fortson said.
When McCullagh was indicted by federal prosecutors on
June 9, 2015, the two-year statute of limitations on the state charge of
involuntary manslaughter had nearly expired.
Through their spokespeople, U.S. Attorney Zane Memeger
and Philadelphia District Attorney Seth Williams would not say whether the two
law enforcement organizations had discussed the case, whether they considered a
manslaughter charge, whether such a charge was appropriate, or, more broadly,
whether there had been any talk of a routine assessment of how workplace
fatalities should be treated.
The McCullagh case "would be a tough sell under
negligent homicide," said former federal prosecutor L. George Parry, a
criminal-defense lawyer in Philadelphia, referring to an
involuntary-manslaughter charge.
"That guy on the roof is assuming the risk," he
said. "He knows he's up there without a safety belt, and he goes up."
Rahke, the worker safety advocate with PhilaPOSH, doesn't
buy it.
People desperate for work may go along when employers put
them in unsafe situations, even if they know better, she said.
Isn't it the employer's obligation to create a safe
workplace? she added.
Robert Kulick, the OSHA administrator in New York who
served as acting administrator here during the McCullagh incident, said he was
satisfied that "justice was served."
"He lied to us, and he has been held
accountable."
"No worker," he said, "should have to
choose between their life and their safety and health to earn a paycheck."
Source: Philly.com
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