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NY Times Op-Ed, August 24 2016
The Real Crime Is What’s Not Done
By CHASE MADAR
The latest criminal charges of public officials in the contamination of
the Flint, Mich., water supply seem righteous. After so much government
ineptitude with such hideous consequences — tens of thousands of Flint
residents poisoned; elevated blood lead levels in nearly 5 percent of
the city’s children, many with possibly irreversible brain damage —
surely these criminal charges will bring, at long last, justice for Flint.
Not really. Though these sorts of charges fulfill an emotional need for
retribution and are of great benefit to district attorneys on the make,
they are seldom more than a mediagenic booby prize. Prosecutorial
responses fill the void left when health and safety regulations succumb
to corporate and political pressure.
Take the collapse at the Upper Big Branch mine in West Virginia that
killed 29 miners in 2010. Flouting safety regulations was an integral
part of the corporate culture of the mine’s owner, Massey Energy, and
last year its chief executive, Donald L. Blankenship, was convicted of a
misdemeanor carrying a one-year sentence. Although some portrayed this
as a blow for social justice, it’s difficult to see how it had much
impact on mine safety.
Far more significant was the West Virginia Legislature’s passage last
year of the Creating Coal Jobs and Safety Act, the first statutory
loosening of mine safety standards in state history. While on its
deregulatory binge last year, the state almost entirely rolled back
aboveground chemical-tank safety standards enacted in response to the
Elk River contamination disaster of 2014 – which made the water of
300,000 people undrinkable.
Prosecution and regulation are not mutually exclusive, but political
energy and media attention are disproportionately expended by the lust
for criminal punishment. Food safety is not assured by punishments like
the 28-year sentence handed down last year to Stewart Parnell, former
chief executive of the Peanut Corporation of America, for the lethal
2008 salmonella outbreak stemming from his company’s contaminated
warehouses. But the outbreak could have been prevented altogether if the
company hadn’t been allowed to use a dodgy private inspection system.
New Food and Drug Administration regulations under the Food Safety
Modernization Act might be a potent safeguard against outbreaks if the
rules can survive business-group lobbying and if the agency’s
enforcement budget is adequate, unlike that of the Securities and
Exchange Commission, which is getting squeezed as the Dodd-Frank Act
expands its regulatory authority.
Our prosecutorial response tends to be reactive. Volkswagen will pay at
least $15 billion for cheating on emissions tests on its diesel
vehicles, and may face criminal charges. The tiny research center that
caught the discrepancy is now facing cuts to its $1.5 million annual budget.
A well-enforced regulatory regime lacks the TV-movie narrative arc of a
criminal trial. But none of these crimes could have been committed if
the government had been doing its job properly.
“Every mine safety regulation we have was written in blood,” said Mike
Caputo, the minority whip in the West Virginia House of Delegates and a
vice president of the United Mine Workers of America, who worked 20
years in his state’s coal fields. “These regulations would never have
passed if some miner hadn’t died, and for the government to take them
away is a slap in the face.”
With regulatory structures in willful disrepair, the corporate world has
become one more sphere colonized by the police and prosecutors. But even
as progressives have begun to question the overuse of criminal law
elsewhere, its encroachments into the white-collar world are generally
cheered: Finally, a chance to stick it to “crime in the suites”!
Criminal law, however, turns out to be a lot better at catching the
small, sad fish of middle management than the sharks of industry and
finance. Go to the F.B.I.’s “most wanted” webpage for white-collar crime
and what leaps out is how many on the list are nonwhite and how petty
their swindles are.
As for the Flint charges — nine officials face them now — no one can
doubt that they shine a helpful media spotlight on Michigan’s attorney
general, Bill Schuette, a Republican with a widely reported eye on the
governor’s mansion in 2018. Nothing in Mr. Schuette’s long career in
politics indicates that he would try to resolve the infrastructural
crisis of Flint and Michigan’s Flints-in-waiting with major public
investment in infrastructure and a regulatory framework. That would take
courage in today’s climate of neoliberal austerity. On the other hand,
Mr. Schuette is brave enough to go after a handful of low-to-mid-level
state officials.
The injustice of the Flint contamination and other safety disasters
demand a meaningful response. Criminal law is not the right tool for the
job.
Chase Madar is the author of “The Passion of Bradley Manning: The Story
Behind the WikiLeaks Whistleblower.”
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