Why I Wrote This Book: Why Not Jail?

I have spent 38 years in Washington, D.C. as a close observer of the regulatory system, specifically the government’s efforts to protect public health, worker and consumer safety, and the environment. The system’s a mess. Regulatory failure has become so acute that we truly are frozen in a paradox. On one hand, people expect the government to ensure that air and water are clean, workers don’t die on the job for avoidable reasons, food is safe, and drugs are efficacious. On the other, these expectations are trashed with alarming frequency. I wrote this book because I have lost near-term hope of reviving the agencies assigned these crucial tasks in a globalized economy. Instead, I argue that the most viable way to staunch the bleeding is to mount an aggressive, relentless effort to prosecute corporate managers for preventable accidents that take lives, inflict grave injury, and squander irreplaceable natural resources.

Regulatory failure is exemplified by a series of deeply troubling incidents that have imposed cumulative death and injury tolls in the thousands. These events are the inevitable result of “hollow government”—a term I use to encompass outmoded and weak legal authority, funding shortfalls that prevent the effective implementation of regulatory requirements, and the relentless bashing of the civil service. From the blowout of the Deepwater Horizon oil rig in the Gulf of Mexico–death toll eleven–to a Massachusetts compounding pharmacy’s shipment of tainted steroid injections that caused fungal meningitis–death toll 64–the rote response is to excoriate federal officials for failing to prevent the incident without considering why they are having such difficulties.

The incidence of such catastrophes is accelerating. It’s just recently come to light that a GM engineer fixed an ignition switch problem that has killed dozens without changing the redesigned part’s number, obscuring the company’s culpability and endangering millions of people for years. A few months ago, an untested chemical jeopardized the drinking water supply of West Virginia’s capital city; one of the owners of the company that owned the tank was a convicted felon. And a week ago, the New York Times revealed that Takata, a leading manufacturer of airbags used in millions of U.S. vehicles, discovered fatal defects in its product years ago, but quickly shut down further testing.

Because deterrence-based civil enforcement has broken down along with preventive regulation, these problems still are not fixed. In the aftermath of the Macondo blowout, for example, an estimated 205 million gallons of crude oil coursed into the Gulf over a period of two and a half months. Yet Congress never upgraded the legal authority of Department of Interior regulators in the Gulf and appropriations remain pitifully inadequate. At last reporting, less than 100 inspectors police 3,500 deepwater drilling rigs and platforms.

Why Not Jail searches for potential solutions by examining the root causes of five recent incidents, all of which involve substantial loss of life, billions of dollars in damage, the shocking dearth of internal corporate safety cultures, and dysfunctional regulatory systems. In addition to the Deepwater Horizon blowout and the compounding pharmacy debacle, they include the Upper Big Branch mine collapse, the Texas City refinery explosions (also brought to us by BP), and the shipment of peanut paste contaminated with salmonella. All five involve circumstances where top management must have been aware of serious operational risk but did not pause long enough to consider the intolerable consequences at stake, instead focusing on profitability at the expense of safety.

Criminal prosecution should be considered by federal and state authorities whenever industrial activities cause grave harm to public health, consumer or worker safety, or the environment. Existing law, including the judicial “responsible corporate officer” doctrine, provides ample authority to support such indictments. Unfortunately, preoccupation with the mens rea of crimes has undermined the development of criminal law. Unless and until mens rea is conceived more broadly to include systematic and prolonged acts or omissions that recklessly magnify risk, the criminal option will be drastically underused.

Prosecutions should target the highest level of official against whom adequate evidence can be developed, avoiding cases against line supervisors who acted or failed to act because they feared reprisal. Once executives and their corporations are charged criminally, settlements should require defendants to acknowledge their crimes, as opposed to allowing them to enter so-called “deferred prosecution agreements.” Where the corporation is the defendant, settlements should require every feasible step toward establishing enduring safety protocols that pervade their operations top-to-bottom and side-to-side.

The great legal historian Lawrence M. Friedman has written that “the history of criminal justice is not only the history of the forms of rewards and punishment; it is also a story about the dominant morality, and hence a history of power.” Viewed from this perspective, the criminal justice system is a sad commentary on the values our society claims to hold dear.

America’s 5,000 prisons hold about 2.3 million inmates, more than in any other country that records such statistics, including Russia. An additional 4.1 million people live under the supervision of correctional institutions, primarily on probation. African Americans are eight times more likely to be incarcerated than whites. Over the decade beginning in 2001, eight million people were arrested for marijuana; simple possession charges accounted for 88 percent of this total and marijuana was the target of 52 percent of all drug arrests. When the vicious cycle of racially discriminatory mass incarceration of poor people is juxtaposed against the vivid descriptions of the crimes committed by well-heeled corporate executives, the contrast has a devastating effect on the rule of law.

This blog is cross-posted from the blog Hamilton and Griffin on Rights.