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Sending Don Blankenship to Jail: A Legal Argument

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Today, the Senate appropriations subcommittee chaired by Senator Tom Harkin (D-IA) is discussing "Investing in Mine Safety: Preventing Another Disaster" and hearing testimony from the notorious Don Blankenship, chief executive officer of Massey Energy, owner of the Upper Big Branch disaster where 29 miners lost their lives on April 5.

Workers safety and health advocates have posted calls over the past months to "send Blankenship to jail," perhaps under federal racketeering laws, and the FBI opened an inquiry into potential criminal charges against company officials who may have bribed federal inspectors to keep the mines running despite these repeated violations. The relevant law is in fact remarkably straightforward, and even the evidence amassed in press accounts, by definition much less than the FBI could and should uncover, provides ample support for a strong case against Don Blankenship under the Mine Safety Act itself, which incorporates the "responsible corporate officer" doctrine crafted decades ago by the Supreme Court.

Under the doctrine, a corporate executive who knew or should have known that bad actions are happening, and who is a position to stop those activities, is potentially liable criminally under "public welfare" statutes like the Mine Safety Act, the hazardous waste laws, and the Food, Drug, and Cosmetic Act. Press accounts indicate that not only did Blankenship know that his mines were catastrophically unsafe, but actually did the opposite of correcting those conditions: he created such pressure to produce coal that workers were afraid they would be fired if took the time to correct blatant safety hazards.

Blankenship is notorious for monitoring coal production in two-hour increments. Tim Bailey, a Charleston lawyer who has litigated several lawsuits involving the mining companies, told the Washington Post that Blankenship "is a complete micromanager. If your production blips off the screen, you will get a phone call from someone who can roll your head."

The proximate cause of the Big Branch tragedy was a build-up of methane in the mine, causing a massive explosion that collapsed the mine's internal structure. It's likely that the methane came from an old coal shaft that was never properly sealed; instead workers shoved rags and garbage into the shaft. "Every single day, the levels were double or triple what they were supposed to be," a foreman who remained unnamed because he was afraid of losing his job told the New York Times. Andrew Tyler, an electrician who once worked as a subcontractor at Big Branch, told the Times, "It was all about production. If you worked for them, you didn't ask questions about whether some step like running a cable around the breaker was a smart idea. You just did it." West Virginia mines under Massey's control produced eight fatal accidents in 2001, and in 2006, a fire that raged out of control because nearby spigots lacked a water supply killed two miners.

Blankenship reinforced the message that time-consuming safety procedures were a low priority by fighting an awe-inspiring number of safety citations for life-threatening conditions in Massey's mines. Federal mine safety officials cited Big Branch for 1,342 safety violations over the past five years. Davitt McAteer, former head of MSHA, told the Washington Post that those figures constituted a "huge number" and said that the April 5 explosion "should not have happened. It was preventable."

Here's the legal precedent relevant to the case against Don Blankenship. Two landmark Supreme Court decisions changed the fundamental premises of criminal punishment for so-called "public welfare offenses" like violations of worker safety laws, adopting the responsible corporate officer doctrine mentioned earlier. (United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Park, 421 U.S. 658 (1975). The doctrine holds that executives at the top of a corporate hierarchy, who were not directly involved in committing violations can be held criminally liable to the same extent as their most culpable underlings.

The first Supreme Court case involved the prosecution of the Buffalo Pharmacal Company, Inc., along with its president and general manager Joseph H. Dotterweich, under the misdemeanor provisions of the Food and Drug Act for shipping "misbranded drugs"--to wit, "cascara compound" containing strychnine sulfate. The specific issue before the Court was whether Dotterweich could be held liable as a "person" under the Act. Justice Felix Frankfurter's opinion on behalf of 5-4 majority declared that the prosecution was based on a

now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.

United States v. Park involved the poor maintenance of a large Baltimore warehouse used to store boxed food products by Acme Markets, Inc., a national retail food chain with 36,000 employees, 874 retail outlets, and 16 warehouses. The warehouse was plagued by rodents. An initial federal inspection produced a letter to company president John R. Park demanding corrective action. He told his Baltimore division vice president to get it done. A reinspection four months later showed no corrections and the FDA sought criminal penalties.

Unlike Dotterweich's modest repackaging operation, Acme's operations were large and sprawling. Park defended himself on the basis that he had delegated these tasks to responsible subordinates. Writing on behalf of a 6-3 majority, conservative Justice Warren Burger concluded that "knowledge or intent were not required to be proved" and that "an omission or failure to act" is a sufficient basis for imposing "a responsible corporate agent's liability."

If, as seems clear from the initial evidence, Don Blankenship is an irresponsible corporate officer, he should indeed go to jail, with one count for each of the men killed on the job as a result of his conscious disregard of their safety.

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