Boston, Texas and Corporate Criminal Justice

By Ralph Nader

The Boston Marathon bombings killed three and injured more than 180. The West, Texas industrial explosion killed at least 14 and injured more than 180. Guess which one drew the greater media and law enforcement response?

If it turns out that the West, Texas explosion is the result of a “terrorist act,” expect federal law enforcement officials and the mass media to fly to Texas from Boston. But until then, don’t expect much.

One reason — our two tier criminal justice system. One tier for individuals. Another for corporations.

Case in point — the April 2010 Massey Energy Upper Big Branch coal mine disaster that killed 29 miners in West Virginia. In December 2011, the Department of Labor found that Massey’s “unlawful policies and practices” were the “root cause of this tragedy.” But in the same month, the Justice Department said it would not criminally prosecute the company. Instead, the Justice Department entered into a “non prosecution agreement” with Massey.

David Uhlmann is the former head of the Justice Department’s Environmental Crimes Section.

He was disturbed by Justice Department’s failure to criminally prosecute Massey. He says he would have criminally charged the company. After all, he says, he has charged many a major corporate criminal for far less human damage. Uhlmann, currently a professor of law at the University of Michigan Law School, says that the Massey non prosecution agreement is part of an expanding pattern.

“The deal with Massey continues a disturbing trend whereby corporations can avoid criminal prosecution by entering deferred prosecution or non-prosecution agreements,” Uhlmann wrote in an opinion piece in the New York Times in December 2011. “They create the appearance that justice can be bought.”

Instead of securing guilty pleas in clear cut cases of corporate criminality, the Justice Department caves to the demands of corporate criminal defense attorneys and enters into deferred and non-prosecution agreements.

Just this week, the Justice Department and the Securities and Exchange Commission (SEC) each entered into a non-prosecution agreement with Ralph Lauren Corporation after alleging that the company bribed its way into markets in Argentina.

Uhlmann will be appearing on a panel at a full day conference May 3 at the National Press Club sponsored by the Corporate Crime Reporter. At the conference, Uhlmann will make the argument that deferred and non-prosecution agreements undermine corporate criminal liability. The title of the conference: Neither Admit Nor Deny: Corporate Crime in the Age of Deferred Prosecutions, Consent Decrees, Whistleblowers and Monitors. Uhlmann will argue that deferred and non-prosecution agreements should not be used in major corporate crime cases.

High level federal enforcement officials — including the Securities and Exchange Commission’s newly appointed Director of Enforcement and the chief of the Criminal Division at the Justice Department — will appear at the conference to defend their use.

The Houston Chronicle reported last week that for years before the explosion that destroyed the West Fertilizer Co. facility, “neighbors had repeatedly called state authorities with complaints about leaks, the odor of ammonia and concerns about a nearby middle school and nursing home.”

The Chronicle also reported that “inspectors in West, Texas found large quantities of anhydrous ammonia stored in ‘unauthorized’ tanks that failed to meet safety standards.” Also, according to the report by the U.S. Pipeline and Hazardous Materials Safety Administration agency’s representatives, “at the time of the inspection (the company) was unable to produce a copy of their security plan.”

As the Corporate Crime Reporter points out, in his first response to the Boston Marathon bombing, President Obama offered his prayers and said that said that “any responsible individuals, any responsible groups will feel the full weight of justice.”

In his first response to the West, Texas explosion, President Obama offered his prayers. Nothing about “the full weight of justice” for those responsible for the West, Texas explosion. Let’s hope that changes when the president travels to Waco today to attend the memorial service for those lost and injured in the deadly explosion at the fertilizer plant.

Last week, the Fox news affiliate in Oklahoma City KOKH Fox 25 ran this headline — “Police Find No Evidence of Crime in West, Texas Explosion.” And that’s even before any investigation of corporate criminal culpability.

The May 3 corporate crime conference at the National Press Club will highlight this double standard.

To give voice to those, like David Uhlmann, who would vigorously investigate and criminally prosecute major corporate criminals. Not rush to judgment — and let the powerful and complicit off the criminal hook.