Let No Blankenship Get Away

One of the few issues in criminal law that is close to universally condemned is over-criminalization, that there are too many laws, too many crimes.  And yet, when someone hated walks away from conviction, the same voices that decry the problem call for more laws because they can’t stand the fact that one got away.  Massey Energy CEO Don Blankenship was hated. Don Blankenship walked away.

The verdict reached by a federal jury here made Mr. Blankenship, 65, the most prominent American coal executive ever to be convicted of a charge connected to the deaths of miners. He had been accused of conspiring to violate mine safety regulations, as well as of deceiving investors and regulators; prosecutors secured a conviction on only one of the three charges. Mr. Blankenship was acquitted of making false statements and securities fraud.

So in truth, he didn’t quite walk, but to those who wanted Blankenship convicted for the deaths of 29 miners who died in the Upper Big Branch mine, he did. Coal mining has always been notoriously dangerous. John L. Lewis, the perennial president of the United Mine Workers and founder of the Congress of Industrial Organizations, always hoped that coal mining would be eradicated, realizing there was no possibility of its ever being sufficiently safe for humans.

But something has to be used to generate the electricity that powers our green cars. Nuclear power is far too dangerous. Fracking for natural gas is terrible. And coal mining is dangerous. And yet, our reasonably priced electricity needs to come from somewhere. So we continue to mine for coal. And that means people have to work in coal mines.

Blankenship was a perfect target for hatred.  He earned $18 million in 2009, the year before the 29 men died in his mine.  There were massive safety violations. And he was involved in all manner of shenanigans, including buying a judge on the West Virginia Supreme Court to rule against a $50 million judgment against Massey.  If you had to pick some evil corporate bigwig to hate, Blankenship was your man.

But the prosecution of Blankenship failed for lack of proof, so much so that the defense rested without calling a witness. It was decided that the government’s case against him was so lacking that he needed no further defense. And, for the most part, this proved to be the case. So, in the eyes of those who wanted Don Blankenship to be convicted for the deaths of the 29 miners, he walked.

In response, Erik Loomis at Lawyers, Guns & Money calls for more laws.

In the aftermath of Don Blankenship getting off almost scot free after murdering 29 of his workers at the Big Branch mine in 2010, the Huntington Herald-Dispatch calls for making workplace safety violations felony offenses:

The guilty verdict was returned on a misdemeanor conspiracy charge that carried a penalty of up to a year in prison as well as a fine. The charges of which Blankenship was acquitted involved securities fraud and making false statements, both felonies…

Congress should work to change that. Just as Blankenship was accused of putting “profits ahead of people” by his critics, the mine-safety laws seem to be following a similar pattern. 

I completely agree. Now, the Herald-Dispatch knows that there is no way the West Virginia congressional delegation is going to do that as they are totally in the pocket of the coal industry and have long-standing ties to Blankenship himself. But this is the progressive position on workplace safety issues. As I’ve stated many times before, if we want to tame corporate behavior, we have to use the stick more than the carrot. If you make executives personally liable for what happens in their mines, on their shop floors, and in their supply chains, then you will see these problems get fixed very quickly. 

In response to this call to “tame corporate behavior” with a stick, a commenter noted the over-criminalization, over-imprisonment problems, to which Loomis responded.

This is not a compelling argument in any conceivable way. The answer to the former problem–eliminating nonviolent drug offenses as something one serves prison time over has absolutely no salience on whether we should jail rich business owners for killing workers.

This is the disconnect between the myopia born of emotional and the eventual reality in the courtroom.  It’s not that there is a problem with too many crimes, too many people in prison, but with not convicting “rich business owners for killing workers.”

This isn’t to say that Don Blankenship isn’t a truly worthy target of hatred. He’s a despicable person. But even despicable people shouldn’t be convicted when proof fails.  Even rich people get to be acquitted when the evidence doesn’t prove the commission of a crime.  And the connection between Blankenship and killing the poor miners is far easier to believe when tainted by emotional certainty rather than actual facts.  After all, it’s not like he’s one of those beloved defendants, the nonviolent drug offenders, so he shouldn’t be entitled to acquittal.

This phenomenon, the simultaneous demand for more crimes for those who evoke emotions of anger and hatred, and fewer for the favored criminals, reflects a dangerously unprincipled approach to criminal law.  We see it with the demand for crimes that would criminalize speech and thought; we see it with crimes that would criminalize defendants for being wealthy.  We see those calling for more crimes distinguishing the process on the same basis as the government and law enforcement, that the end justifies the means.

The problem is not now, nor has it been, lack of sufficient laws criminalizing conduct. The problem is that bad things happen and people can’t bear the idea that someone they hate got away with it.  If we eliminate rights for the hated defendants like Blankenship, we do the same for the ones we favor. If we create laws to guarantee that no one we hate ever walks, they will be used to assure conviction for defendants the government hates as well.

A principled approach to crime means that sometimes, a guy like Don Blankenship gets to (almost) walk. But so does the occasional defendant we want to walk.  The law can’t distinguish between our transitory love or hatred of individual defendants. That’s the difference between law based on emotions and law based on reason.

Maybe it sucks that Blankenship was only convicted of a misdemeanor, but that’s the price of a system that strives (and too often fails) to provide due process to everyone.  Eliminate it for the wealthy and hated and the poor don’t stand a shot in hell. Yes, it feels wrong and unfair now. It will feel a whole lot worse if unprincipled, overly-emotional, guys like Loomis get their way.

21 thoughts on “Let No Blankenship Get Away

  1. delurking

    “This phenomenon, the simultaneous demand for more crimes for those who evoke emotions of anger and hatred, and fewer for the favored criminals, reflects a dangerously unprincipled approach to criminal law.”

    Really? Isn’t this the principle on which criminal law is built? Through our elected representatives, we assign punishments more harsh for those transgressions that upset us the most. At a time when homosexuality was bad, we jailed people for sodomy. At a time when not liking homosexuals is bad, we have extra punishment if the motivation for the crime was the homosexuality of the victim.

    1. SHG Post author

      No. This is not the “principle,” but how our elected officials pander to emotions and hatred instead. That’s what makes it a phenomenon, and a terrible phenomenon that shouldn’t happen.

      1. delurking

        Fair enough, but I still have trouble seeing how it could be any other way, for most crimes. In the Blankenship example, I can see how one could, in principle, calculate a probability that the conspiracy to evade workplace safety regulations would lead to physical harm, and then assign punishments based on the expectation value of the dollar cost of that harm using the pricing techniques applied in cases like the 9/11 fund and the BP spill fund. For the majority of crimes (especially some that we consider really bad: child pornography, rape) , though, I can’t imagine a way of doing something like this. Since so much of the harm is emotional, and we recognize emotional harm as a harm, I can’t see a principled way of decoupling magnitude of the punishment from the level of societal revulsion.

        1. SHG Post author

          You’re conflating wholly unrelated concepts to the point of absurdity. There are aggravating factors that are used to justify the level of punishment for a crime, but punishment has no bearing on whether the conduct is a crime in the first instance, or whether achieving a conviction should be any different for any crime. The first question is what conduct should constitute a crime. The next is whether the crime is proven in accordance with the mandate of due process, The final question, after a conviction is obtained, is how morally reprehensible we deem the conduct, in light of aggravating and mitigating factors, in order to fix a sentence. This is beyond basic, and it’s my mistake to allow you to comment. I will now correct my mistake.

            1. SHG Post author

              It would be less problematic if it wasn’t the first comment. I always wonder how many non-lawyers read the comments and walk away stupider because of comments like these. Delurking’s recent comments have been particularly troubling lately, and I really have to do something about it.

            2. John Barleycorn

              Sgt, can I interest you in two thousand five hundred copies of Lawyers in Chains: The Definitive Lawyerly Circle Jerk?

              It’s a pretty good flick including some outstanding money shots in chambers as well as in open court but it never really found an audience outside of the five hundred copies that we sold after spaming all the lawyers from Superlawyers the refrence clearing house site that has a:

              ****PATENTED SELECTION PROCESS****

              If you are not on super lawyers, you should be Sgt.


              Super Lawyers selects attorneys using a patented multistage process in which peer nominations and evaluations are combined with their independent research.


              Diverse list of the top attorneys nominated by their own peers.


              Validated with third-party research across 12 key categories.


              Reviews by a highly credentialed panel of attorneys.

              5% of attorneys selected to
              Super Lawyers.

              FINAL SELECTION

              2.5% of attorneys selected to Rising Stars.

              Come to think of it you could sit down and write the esteemed one an email that lays out your new commentator super lawyer selection plan for HIS blawg, right now!

              You could call it the Sgt. Schultz brown- nosers guide to reinforcing behavioral traits that will make you a legend in the back pages of SJ and bring bus loads of clients to your door.

              I bet the esteemed one will even give you a 40 percent cut instead of the usual 30 seeing as how you always find the time to add a zinger or two, without even raising your hand in class, after the esteemed one breaks out his ruler and whacks some knuckles.

              Your are my fucking hero Sgt. there is simply no one in the SJ back pages that does a better job of kicking a guilded or cheap seat commentator when they are on their heels or flat on their back than you.

              Really it’s an invaluable contribution! The esteemed one can be such a wuss when he looses his patience with a commentator. What would he do without you?

            3. SHG Post author

              Really? You had to cut and paste the whole Super Lawyers thing? Leave SS alone. The two of you have far more in common than you realize.

              And where’s FUBAR? Did you scare him away? Go say you’re sorry and ask him nicely to come back.

            4. John Barleycorn

              Fubar, I promise not to stare at you in class anymore and leave longing love letters to you in my comments in order for you to come back and cheer us all up from time to time, and I will stop picking fights with Sgt. Shultz (even though he is a bully) after school in order to impress you enough to go out on a date with me.


            5. John Barleycorn

              …don’t you think, I don’t see you snickering at me when I have to go to the nurses office and take my medicine after lunch Sergeant.

              And with that… it’s time to check into the impatient facility again. Enjoy the holidays everyone, even you Sergeant.

              If Fubar comes back for the Holiday Pagent tell him he can use my colored pencils and that exchange student from europe, who has been giving me grammar lessons, has been letting me stash my powdered chocolate milk stash under his cubby

              Don’t you worry I’ll be back and I can usually convince a few of the new patients, especially during the holiday rotation, that the cheap seats are only screwed, not welded, in place.

              P.S. I heard there is a publisher locked up in detox, so I will put in the word about the esteemed one wanting to write a book if she makes it to the general population before I figure out what the doctors lawyers want to hear this time around and I get my papers stamped.

            6. Keith

              Did you miss the whole portion of the post where he talked about unintended consequences of actions that are too harsh? And let’s not throw around “non-lawyers” as if thinking poorly was rooted out by a few years of law school and a bar exam.

              Keep it up and I’m gonna ask Scott to bust you down to corporal.

          1. delurking

            I do now see what you were driving at. But, in my defense, you did quote someone’s opinion that the punishment for the crime of conspiracy to violate workplace safety rules (which Blankenship was found guilty of) should be harsher to introduce your argument that the broader phenomenon of people asking for more crimes is unprincipled.

            1. SHG Post author

              Harsher only because they want him convicted of killing 29 people, or at least punished for killing 29 people. Because HE’S A WEALTHY KILLER!!! I’m sorry that I failed to convey this distinction to you in my post, but I need you to try harder before commenting. Please.

  2. JAV

    The post makes me think about the intense discussion on gun control and the need for further laws and regulations. At what point does it cross the line into oppression?
    – The gun used in a shooting came from a friend of the shooter?
    – Pass straw purchase laws.
    – It’s too hard to prove that someone is a straw buyer?
    – Let’s make sure every transaction no matter how personal is registered and documented.

    1. SHG Post author

      The issue arises in the context of all criminal laws. Let’s not make this about gun control, as that’s not what this post is about and I have no intention of revisiting the debate here.

  3. Fubar

    If we eliminate rights for the hated defendants like Blankenship, we do the same for the ones we favor. If we create laws to guarantee that no one we hate ever walks, they will be used to assure conviction for defendants the government hates as well.

    The solution to this won’t take long.
    Draft each law with a clear rich-poor prong.
    If you’re rich, don’t steal bread.
    If you’re poor, rest your head
    under bridges. Now what could go wrong?

Comments are closed.