• With an accompanying article, The Case for a Corporate Homicide Law, by Russell Mokhiber (see addendum).
While we fret and militarize our societies over retail terrorists who kill a handful, the Lac Megantic (Que.) explosions killed scores of people, but no high executive is likely to face jail for such gross negligence.
By Carl Bronski, wsws.org
17 July 2013
Over the past week the editorial boards at Canada’s mainstream newspapers have climbed over one another in their attempt to misdirect their readers as to the causes of the Lac-Mégantic rail disaster.
Shortly after midnight on July 6 a runaway Montreal, Maine & Atlantic (MMA) freight train comprising 72 mostly aging tanker cars filled with crude oil crashed and exploded in the small Quebec town of Lac- Megantic, killing 50 people, incinerating the downtown core, and driving 2,000 people from their homes.
The train, operated by a single crewman, had been left unattended on a relatively steep grade (in accordance with de-regulated, standard company practice) awaiting the arrival of a relief engineer to take the train further eastwards to its St. John, New Brunswick destination. The train had been parked, not on a siding, but on the main rail line, again in accordance with standard practice. The crewman reported that he had set 11 hand-brakes on various tanker cars along the length of the train prior to retiring to his hotel after a grueling 12-hour shift. Hand-brakes, if properly maintained by the company, are ostensibly designed to hold cars in place even without locomotive air-brakes.
In “free-enterprise Texas” similar tragedies are common but the government remains deaf and blind to the obvious solution.
The driver, in any case, had also set the air-brakes on the locomotives at the front of the train—although some of these forward brakes may have lost pressure after a local firefighting crew attended a small blaze in one of the train’s engines and shut down one of the five locomotives shortly after the driver had gone to his hotel. Following the extinguishing of the fire, the train was reportedly checked by an attending MMA railroad employee. Everyone then left. Shortly thereafter, the train began its deadly descent into Lac- Mégantic.
The horrific devastation that followed captured the attention, sympathy and outrage of much of the Canadian population. In the ensuing days local townspeople accused Edward Burkhardt, the cost-cutting chairman of MMA, of outright murder and excoriated the government for its policy of deregulation of the train industry. The response from one shell-shocked citizen of Lac-Mégantic was typical. When asked to explain the causes of the tragedy, she turned and screamed at the banks of television cameras that had descended upon the town–“Money! Money! Money!”
The well-heeled denizens of the country’s newspaper editorial boards have promoted a very different and self-serving interpretation.
“Accidents happen,” opined the deep thinkers at the Toronto Sun, Sun Media’s flagship publication. People should “spare their senseless outrage against the oil industry and its carriers…Unless we are prepared to move Canada’s entire population to Northern Alberta, then we have to somehow come to grips with the 0.1 percent chance of something going wrong during the delivery process of a very vital commodity that lacks any real or affordable alternative.” And then the coup de grace from a daily that has been amongst the most enthusiastic boosters of Big Oil in Canada: “If anything, the tragedy that has befallen Lac-Mégantic should show all concerned that pipelines are safer means of transporting crude than railways.”
The Globe and Mail, the country’s leading mouth-piece for the Bay Street bankers, likewise pounced on the Lac- Mégantic tragedy to promote pipeline expansion. Declared the Globe, “The probability of accidents involving trains carrying crude oil has been greatly increased by the shortage of pipeline capacity in North America…Pipelines are clearly safer. It is greatly hoped that the government of the United States will soon approve the building of the Keystone XL pipeline.”
In pushing the mercenary agenda of corporate Canada, the Globe thought it politic to keep from its readers the fact that the oil that ignited at Lac-Mégantic came from North Dakota’s Bakken field—deposits that will never be serviced by any pipeline. Nor did it consider it appropriate to raise the not inconsequential fact that countless other highly dangerous chemicals are transported daily across the country by train.
The National Post weighed in to the discussion to run interference for the government, cautioning against any “ill-timed contention that somehow Ottawa is to blame.” The piece, in its wisdom, felt it circumspect not to mention that successive Liberal and Conservative governments have overseen a shift to the “self-regulation” of railroad safety by transport companies over the past 15 years, that federal safety experts had warned that 80 percent of the country’s oil tanker stock was patently unsafe, or that the current Conservative government of Prime Minister Stephen Harper not only recently approved one-person train operation for MMA but has cut the safety budget for railroads, even as shipments of crude oil by train have increased by a whopping 28,000 percent since 2009.
In this, the editorialists were clearly following the lead of Canada’s Prime Minister. Harper, on the occasion of his visit to the disaster site, had sought to direct attention away from questions of regulatory failure. “It’s hard to imagine that we could have such an accident,” said the Prime Minister. “We have regulations to prevent these kinds of things.”
Indeed, when New Democrat Thomas Mulcair, leader of the Official Opposition in parliament, had the temerity to suggest in a television interview that the tragedy in Lac-Mégantic could be related to government cutbacks in “the wrong area,” the combined might of the nation’s media excoriated him for “politicizing” a horrific tragedy. Mulcair quickly backtracked from his mild reproach of government policy, denying that he had ever made the recorded comment.
André Pratte, the editor-in-chief of La Presse, the largest and most influential French-language daily in Quebec, has written a series of editorials defending the government and the big business program of deregulation: “At present, there is no indication that gaps in regulation or inspection of the rail system are involved in this case. The railway companies are subject to a ton of regulations of all kinds, including on the configuration and inspection of braking systems.”
Pratte’s pontifications fly in the face of information offered by train operators familiar with the MMA line and by national safety bodies. In 2007, the Canada Safety Council wrote that deregulation “removes the federal government’s ability to protect Canadians and their environment and allows the industry to hide critical safety information from the public.” In 2011, an auditor-general’s report concluded that “Transport Canada has not designed and implemented the management practices needed to effectively monitor regulatory compliance.”
James Goodrich, a former locomotive engineer and yardman who had previously worked on the line passing through Lac-Mégantic, wrote to theMontreal Gazette last week to “speak out” against the growing whitewash by the country’s editorialists. “In my view,” he wrote, “what happened in Lac-Mégantic is linked to the continent-wide, 30 year erosion of work rules, procedures, equipment and infrastructure in the rail industry, and a culture of corporate acquisition by non-railroad interests that has led to deferred maintenance and deep cost-cutting.”
Goodrich pointed out that the tracks around Lac-Mégantic are in such poor condition that in some place trains have been limited to speeds of 5 miles (8 kilometers) per hour. “I have only seen order speeds of 5 mph twice,” added Goodrich, “after flash floods in Colorado, and in nearly abandoned Boston yards where no rail maintenance was being done at all.” The former railway man said that he does not see the trade unions as any bulwark against the government-backed corporate assault on workers’ rights and public safety. The railroad unions “have been gutted” in the last thirty years, have lost their voice, and face “irrelevance.”
ADDENDUM
The Case for a Corporate Homicide Law
When Ira Reiner was the District Attorney for Los Angeles County back twenty‑five years ago or so, he had a policy of opening a criminal investigation every time a worker died on the job.
Not that he would prosecute every case.
But he would investigate every case as a corporate crime.
And sometimes he would bring criminal charges against the corporation for the death of a worker.
Today, you rarely see a prosecutor bring criminal charges against a corporation for the death of a worker.
Instead, the Occupational Safety and Health Administration (OSHA) imposes minimal civil fines on companies for worker deaths.
Just in the past two months, OSHA fined one company $28,000 and another $77,000 for worker deaths.
In 2007, after a few high profile worker death cases, the UK passed a corporate homicide law.
The law allows prosecutors to bring homicide charges against the corporation for the death of workers or consumers. Similar laws are being debated in New Zealand and Australia.
In just the last two years, 108 homicide prosecutions have been opened in the UK against corporations under the law.
Do OSHA and its chief David Michaels support passage of such a law in the United States?
“Although they are not technically manslaughter cases, the OSH Act provides for criminal penalties for employers whose willful violation of an OSHA standard causes death to any employee,” an OSHA spokesperson said in response to the question.
“Because, under federal law, only the Department of Justice may prosecute criminal cases, we refer appropriate cases to the Department of Justice for prosecution under this provision. We also assist in the prosecution of cases involving worker deaths under other statutes, such as the Clean Air Act and the Clean Water Act, which provide more severe sanctions than those available under the OSH Act. In addition, we assist local prosecutors seeking actual manslaughter convictions in worker deaths.”
Any other questions, the OSHA spokesperson asked, via e-mail?
Yes, back to the original question.
Do David Michaels and OSHA support the passage of a federal corporate homicide statute in the US similar to the one passed in the UK?
No answer.
So, OSHA isn’t taking a corporate homicide law seriously.
But James Harlow is.
Harlow is a 2012 graduate of Duke School of Law.
While at Duke, he wrote a law review article titled Corporate Criminal Liability for Homicide: A Statutory Framework.
In it, he lays out a draft statute that begins with these words:
“An organization is guilty of corporate homicide when it knowingly, recklessly or negligently causes the death of a human being.”
In the article supporting the draft statute, Harlow argues that “a corporation may be directly responsible for the deaths of the employees, consumers, and members of the general public with whom it interacts.”
“In situations of systemic internal misconduct or corporate recidivism, civil regulatory penalties and private lawsuits are insufficient to vindicate society’s interest in punishing the entity responsible for these deaths.”
“There are instances when a corporate entity is a truly blameworthy actor, rather than ‑‑ or in addition to ‑‑ individual employees, and when a criminal sanction against the corporation would have the greatest effect. This may be particularly true for large corporations given their complex bureaucratic structures.”
“Current homicide schemes are ill equipped to accommodate corporate defendants. Historically, there have been few significant corporate prosecutions for homicide. Those that have occurred have tended to be against small companies in which ownership and management were united in the same individuals, who were also charged individually.”
“The paucity of successful prosecutions suggests that current law does not provide prosecutors with the power to bring corporate homicide charges or, that if the power exists, its lack of clarity discourages prosecutors from bringing cases.”
Why not just hold individual executives criminally responsible? Why the corporation?
“The individual employees in the vast majority of these cases are acting the way they are acting because of their role within the corporation,” Harlow told said last week.
“The corporation is at the heart of the criminal conduct. There is a need to express to the corporation the moral sanction and blameworthiness that comes with the criminal law.”
But aren’t you only hurting innocent shareholders if you hold the corporation liable?
“These shareholders benefit when the corporation engages in nefarious conduct,” Harlow said. “And they are profiting from that.”
“As far as civil regulatory schemes, there are times when the civil regulatory schemes don’t have teeth – for whatever reason – the regulators being overworked or underfunded, or the regulatory scheme itself doesn’t provide the sanctions necessary to make the corporation change its ways.”
“In those instances for serial regulatory violators, the criminal law can serve as an instrument to help turn around the corporation and prevent future wrongdoing by those most culpable corporations.”
Harlow says that “the expression of a community’s moral condemnation, even when applied to corporations, is unique to criminal law and goes beyond the utilitarian goals of rehabilitation and deterrence. There is significant intrinsic value to this expressive force when it is applied to corporations in the same way that it is applied to individuals.”
Harlow writes that “organizational theorists recognize that an organization’s culture is closely intertwined with its leadership.”
“Management may create a culture that sacrifices safety for profits, or it may create a safety‑first culture. The desire for profits can be a powerful ‑‑ even irresistible ‑‑ force that can cause a corporation to hazard great risks. In such cases, the corporation may be the truly blameworthy actor, rather than any one employee.”
Is Harlow saying that you can indict a corporation for its culture?
“Corporate culture is evidence that can and should be considered against a corporation,” Harlow says. “You are able to divine a corporate culture from its written policies, its de facto policies, and its ethos, as testified to by employees, mid‑level managers, senior managers. It is possible to put your hand on a corporate culture and a corporate ethos. You shouldn’t indict a corporation solely because you think it has a bad culture, or exclusively a profit maximizing culture that sacrifices safety. But it certainly could be evidence brought against a corporation.”
Harlow’s draft law would impose a maximum $10 million fine per death on the corporation. But perhaps more important, he would impose a maximum five years of probation.
And he believes that the federal government should create a corporate crime unit within the probation office.
“There are enough federal corporate crime cases that it would be worthwhile to see whether there should be some centralized unit that represents the U.S. government’s interest in terms of corporate probation,” Harlow says. “It’s worthy of study and debate. It might be preferable to the present system of corporate monitorships, where former high level prosecutors sit in the boardroom.”
[For the complete q/a format Interview with James Harlow, see 27 Corporate Crime Reporter 28(12), July 15, 2013, print edition only.]Russell Mokhiber edits the Corporate Crime Reporter.
