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 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.