Twenty Nine Dead and Alpha Gets a Non-Prosecution Agreement

There is strong evidence on the record that you – a human being citizen of the United States – engaged in criminally reckless behavior that resulted in the deaths of 29 of our fellow citizens.

How will your government react?

Criminally prosecute you.

And if convicted, throw you in jail for a very long time.

There is strong evidence that a non human being major American corporation engaged in criminally reckless behavior that resulted in the deaths of 29 of our fellow citizens.

How will your government react?

Enter into a non-prosecution agreement with the company.

That’s right.

No corporate crime prosecution for one of the worst coal mine disasters in recent times.

Why no criminal prosecution?

Because there is a double standard of justice in the United States.

Criminal prosecutions for you and me.

Deferred and non prosecution agreements for major American corporations.

The details of the deal were announced at a press conference in Charleston, West Virginia by the U.S. Attorney R. Booth Goodwin II.

Alpha Natural Resources will make payments and safety investments totaling $209 million in connection with the criminal investigation of the April 5, 2010, explosion at the Upper Big Branch mine (UBB) in Montcoal, West Virginia.

The explosion at the UBB mine claimed the lives of 29 coal miners and injured two others.

At the time of the explosion, the mine was owned by Massey Energy Company, whose operations came under Alpha’s control in a June 1, 2011, merger.

Alpha will spend $80 million in mine safety improvements at all of its underground mines, including those formerly owned by Massey.

Alpha will place $48 million in a mine health and safety research trust, to be used to fund academic and non-profit research that will advance efforts to enhance mine safety.

The company will pay restitution of $1.5 million to each of the families of the 29 miners who died at UBB and to the two individuals who were injured, for a total restitution payment of $46.5 million.

Alpha also will pay a total of up to $34.8 million in penalties owed to the Mine Safety and Health Administration (MSHA), including all penalties that arise from the UBB accident investigation.

Alpha will cooperate in a ongoing criminal investigation of individuals responsible for the wrongdoing.

In exchange, Alpha will not be criminally prosecuted.

David Uhlmann is a Professor at the University of Michigan Law School.

Uhlmann prosecuted corporate crime cases when he headed the Environmental Crimes Section at the Justice Department from 2000 to 2007.

And this agreement with Alpha left Professor Uhlmann scratching his head.

“Why were there no corporate criminal charges?” Uhlmann asked. “If you cannot bring a criminal case against the company involved when there are years of violations and numerous deaths, when will criminal charges be brought? No doubt part of the problem here is that the mine safety laws are too weak, at least from the perspective of criminal enforcement, which is something that Congress needs to address. Still, the fact that the company was able to obtain a non-prosecution agreement in exchange for paying record civil penalties raises a whole host of red flags about this deal.”

But isn’t it a legitimate strategy to not bring criminal charges against Alpha in return for $209 million and an agreement to cooperate in an ongoing criminal investigation of the individual wrongdoers within the company?

“My view is you play hardball and you get both,” said Uhlmann. “You get the criminal plea. And you also get the cooperation and for that matter the restitution and the upgraded safety measures at the plant.”

“The Justice Department appears to have reached the conclusion that the only way they could get restitution and the upgrade in safety at the company is by a non prosecution agreement,” Uhlmann said.

“In cases that don’t involve criminal activity, that is perfectly appropriate.”

“But if there is criminal activity, they should charge the case criminally against both the corporation and any responsible individuals.”

You can’t throw a corporation in jail. So, what does criminal prosecution of a corporation get you that you can’t get with the kind of settlement we see in Alpha?

“Criminal prosecution sends an entirely different message about how we view the corporate misconduct,” Uhlmann said. “When we prosecute a case criminally, we condemn the wrongdoing in the strongest possible terms.”

“There is no question that corporations want to avoid criminal prosecution if at all possible. Corporations don’t want the reputational damage that comes with a criminal conviction. That is another reason why criminal prosecution is a more serious sanction than civil enforcement.”

“This case certainly gives pause about what is the prevailing view at the Department about the role of corporate criminal prosecution,” Uhlmann said. “This fits the pattern over the last several years of favoring deferred and non prosecution agreements over criminal prosecution. It began in the Bush administration, but it has continued in this administration.”

Uhlmann said that when he was at the Environmental Crimes Section, he did not go along with the shift toward deferred and non prosecution agreements.

“This is a terrible tragedy, one of the worst mine disasters in our country. The President has talked about it. The Attorney General has talked about it. There is no way a case of this magnitude could have been settled without senior Department officials being notified and having the opportunity to object if they had an objection.”

Uhlmann said that under Justice Department policy, the U.S. Attorney would have completed an “urgent matter” report to the Attorney General and Deputy Attorney General.

“This agreement certainly had their blessing if not their explicit approval.”

Justin Feldman, Worker Health and Safety Advocate at Public Citizen’s Congress Watch Division, said that the Justice Department “should have prosecuted Alpha to hold the corporation criminally liable for the worker deaths.”

“Instead, it opted for a non-prosecution agreement, in which there is no admission or finding of guilt – meaning a corporation can engage in reckless activity that leads to the deaths of 29 people and still escape criminal prosecution,” Feldman said.


Russell Mokhiber is the editor of the Corporate Crime Reporter..

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