The court was divided 4-4.
Nothing prevents the government from criminally prosecuting corporate CEOs who willfully ignore health and safety standards, killing workers, as in Massey Energy's Upper Big Branch Mine disaster, and causing environmental catastrophe, as in BP’s massive oil spill in the Gulf of Mexico.
For years, we haven't seen many corporate criminals prosecuted in the United States, thanks to the power of corporate lobbyists and the reluctance of government officials to take on business interests.
A PBS Frontline show "A Dangerous Business"notes that, in the 32 years since OSHA was created, there have been over 200,000 workplace deaths. But OSHA has referred only 151 of these cases to the Justice Department for criminal prosecution. Of these, only eight have resulted in prison sentences for company officials.
There is a lot of political pressure not to seek prison terms for CEOs of unscrupulous companies, and little public sentiment pushing the government and prosecutors to get tough on corporate criminals.
But that may be changing.
The explosion at the Deepwater Horizon rig off the coast of Louisiana that killed eleven people and led to an oil spill that will soon surpass Exxon Valdez in its size and destructiveness led Attorney General Eric Holder to announce a Justice Department investigation into health and safety protocol aboard the BP-leased the rig.
BP was involved in a Texas oil refinery explosion that killed 15 people in 2005. And the company seems to have foregone the safety systems that allow deep-water oil rigs off the coast in Northern Europe to avoid catastrophic accidents.
Public patience with accidents caused by lax safety and environmental standards is wearing thin.
This became clear after the Massey Energy mine disaster.
"I live in West Virginia, and my sense is the tide is turning politically [in the wake of the mine disaster]," Russell Mokhiber, editor of Corporate Crime Reporter told me. "With the oil spill in the Gulf and with the deaths of the mine workers, there is fertile ground for a renewed social movement against corporate crime."
Mokhiber points to a raft of opinion pieces calling for criminal charges against Massey Energy CEO Don Blankenship.
Blankenship is a particularly odious character. A heavyweight in Republican politics in his state, he ran a justice off the West Virginia Supreme Court and installed his own coal-friendly judge. Under his leadership, Massey Energy has been cited for safety violations again and again-with 1,300 violations in the Upper Big Branch Mine alone since 2005, and 50 in the last month for poor ventilation--the apparent cause of the recent disaster.
After 29 people died at the Upper Big Branch mine last week, Bob Franken of The Hill newspaper in Washington, DC, wrote:
"Perhaps it's time for Don Blankenship to get involved with the courts again. This time, as a defendant. The charge: murder."
Franken points out that the sentence for involuntary manslaughter in West Virginia is one year in prison per case--or a possible 29 years for Blankenship.
It's not such a far-fetched notion. In a 2005 memo to deep mine supervisors, Blankenship ordered the miners not to work on anything but "running coal." They were not to "build overcasts, do construction jobs, or whatever." When a deadly fire broke out at Massey's Aracoma mine, killing two men, the memo became Exhibit A at a trial that ultimately resulted in a $2.5 million fine for the company.
That sort of direct complicity in flouting safety standards could form the basis for a criminal prosecution of Blankenship.
There is important legal precedent for bringing such charges.
Mokhiber cites the Ford Pinto case: In 1978, three teenage girls driving in a Ford Pinto were hit from behind on Highway 33 in northern Indiana. All three died from terrible burns after their car burst into flames. An Indiana grand jury indicted the Ford Motor Company for reckless homicide for making and selling the Pinto with an unsafe fuel tank.
"Although Ford was ultimately acquitted, the criminal prosecution of Ford Motor Company reestablished an important precedent: In certain cases involving human health and safety, corporations and their executives could be required to submit not only to the scrutiny and sanctions of traditional federal agencies, but to state criminal courts as well," The Corporate Crime Reporter notes.
Mokhiber sees parallels to the Massey Energy mine disaster.
Despite the intimidation factor of taking on a politically powerful figure like Blankenship and a big company like Massey, the Pinto case sets a precedent for an underfunded, public-interest-minded prosecutor to do just that.
"The Pinto case was brought by a Republican state prosecutor in Indiana," Mokhiber notes. "He was totally outgunned for resources by Ford. He relied on law students for support. Even thought the company was ultimately found not guilty, it set an important precedent."
Another role model Mokhiber cites is Ira Reiner, who was the LA County district attorney in the early 1980s. Reiner made it a practice to open an involuntary manslaughter investigation of a company every time there was a death on the job. This resulted in many criminal prosecutions and justice for the families of dead and injured workers.
The current political climate might produce more Ira Reiners.
Kristen Keller, the prosecuting attorney for Raleigh County, and the only prosecutor in West Virginia who has the power to press charges in the case, recently told Corporate Crime Reporter: “If there is evidence to support a homicide prosecution, I would not hesitate to prosecute."
In the last week, several news outlets, including NPR, the Washington Post, and Reuters, have reported that a Federal criminal investigation is underway against Massey Energy.
NPR also reported that the government was looking into possible bribery of officials at the Mine Health and Safety Administration.
"Most people aren't familiar with the history of criminal prosecution for worker deaths," Mokhiber says. "There is a whole generation that has forgotten the Ford Pinto prosecution, and just thinks workers die on the job sometimes and no one is responsible"
But that is not the case "if the prosecution can make a case that Blankenship knew the situation at the mine and if it meets the legal definition of involuntary manslaughter."
Back in the 1980s, Mokhiber says, Congressman John Conyers proposed a "public endangerment" law that would have held corporate executives criminally liable if they knew of a product or process that could cause harm and failed to report it. But corporate lobbyists tied up the proposed legislation and it died.
Now is a good time for a renewed effort of that kind.
Meanwhile, prosecutors at both the federal and state level have the power to prosecute executives who have direct involvement in negligent practices by their companies that lead to worker deaths and environmental damage.
The only thing holding them back is politics. That's where the renewed social movement comes in.
Ruth Conniff is the political editor of The Progressive magazine.