“April 2010 was a deadly month.”
“Forty-seven people died.”
“They did not die because they were shot, knifed, drugged, or killed in an armed conflict.”
“They died simply because they went to work and were doing their jobs.”
“From all indications, they died because someone gambled with their lives.”
That’s the opening of a remarkable new law review article written by Jane Barrett titled When Business Conduct Turns Violent: Bringing BP, Massey, and Other Scofflaws to Justice, 48 American Criminal Law Review 287 (2011).
On April 2, a blast at Tesoro Corporation’s oil refinery in Anacortes, Washington took the lives of seven workers.
On April 9th, twenty-nine miners working at the Massey Energy Company Big Branch Mine in West Virginia died in the worst mining accident in the United States in twenty-five years.
And on April 20th, eleven people were killed when the BP Deepwater Horizon rig exploded in the Gulf of Mexico – an explosion that injured seventeen others and created an ecological and economic nightmare for the region.
“To date, no actual person has been held accountable for any of these deaths, and, unless there is a seismic change in the government’s response to these types of deadly events, it is fair to wonder if any person ever will be,” Barrett writes in the opening to her article.
Barrett, a former state and federal state prosecutor, currently teaches environmental law at the University of Maryland’s Francis King Carey School of Law.
In the United States, there are very few – a declining number actually – of criminal prosecutions for workplace deaths.
There are a number of reasons for this, not the least of which is that there exist on the books misdemeanor penalties available to prosecutors who want to bring criminal prosecutions for workplace deaths under the Occupational Safety and Health law.
Barrett says we should pass a federal industrial homicide law modeled after the Seaman’s Manslaughter Statute.
“The law says that a captain, an engineer, a pilot or any person employed on a vessel, whose misconduct, negligence or inattention to his or her duties results in a loss of life, can be held accountable for a felony that carriers a ten year prison term,” Barrett said in an interview last week.
“It also covers an owner, inspector, or public officer whose fraud, neglect, connivance or misconduct results in the death of a person.”
Barrett would expand the statute to cover land based businesses.
“Most people think of manslaughter and murder, unless it occurs on federal land or at a federal facility to be the exclusive jurisdiction of the states,” Barrett said. “I suggest in the article that we take the Seaman’s Manslaughter Statute and find ways to expand it.”
Are you calling for the equivalent of an industrial homicide statute?
“The issue needs to be explored,” Barrett said. “What we have now is not working. The Seaman’s Manslaughter Act gives us a blueprint. We need to figure out how to bring the criminal provisions of OSHA into the 21st century. That is something that needs to be done.”
“You have to find a way to distinguish between violating paper laws and causing someone’s death. But we can do that in how we draft the statute.”
You would draft it to cover deaths on the job?
“Yes,” Barrett said. “I propose in my paper graduated penalties depending on the mens rea of the defendants.”
“And I propose it be enacted for land based facilities.”
“If someone knowingly and intentionally decides not to spend the money to repair this tank because they want to push this cost off to the next quarter, and that tank ends up exploding because they didn’t do the maintenance and that explosion ends up killing someone, the person who made that decision should be held accountable.”
(For a complete transcript of the Interview with Jane Barret, see 25 Corporate Crime Reporter 44(12), November 14, 2011, print edition only.)