April 26, 2012

BP Spill: Perp Walk for Underling Shouldn't Satisfy Anyone

With considerable media flourish, the Department of Justice (DOJ) announced Tuesday the first and so far only criminal charges related to the BP Deepwater Horizon catastrophe that killed 11 workers, and did profound violence to the Gulf of Mexico and the local economies dependent up on it. One Kurt Mix, 50, an engineer involved in designing the failed “top kill” remedy, was indicted for obstruction of justice. More specifically, he's accused of deleting text messages from his phone that he knew were to be collected as evidence in the case.. 

Prosecutors made Mix do a perp walk for reporters, with the New York Times reporting that he “surrendered” in Houston, “wearing a light purple shirt and pair of khakis without a belt.”  Several legal experts, including Professors  Richard Lazarus (former executive director of the Oil Spill Commission) and David Uhlmann (former chief DOJ environmental crimes prosecutor)  predicted that the arrest of Mix would help prosecutors build cases against those further up the food chain.  With all due respect to these hopeful—really wishful—predictions, it’s way too soon for DOJ to take a victory lap.

For one thing, Attorney General Eric Holder has amassed an underwhelming track record in prosecuting perpetrators of unspeakable and fatal health, safety, and workplace crimes, including Don Blankenship, former chief executive officer of Massey Energy, whose obsession with “digging coal” without pausing to ensure safety requirements are met, led to extraordinarily hazardous working conditions at the Upper Big Branch mine, where 29 miners died in the worst disaster in 40 years; and Stewart Parnell, the chief executive of the Peanut Corporation of America, whose decision to ship peanut paste that tested positive for salmonella killed nine and sickened hundreds. Elsewhere in the regulatory arena, Holder has not yet delivered on prosecuting  financial crimes documented in two dozen books, television programs, and movies.

Prosecuting corporations for crimes, putting them on probation, and assessing even hundreds of millions in fines means little to the executives in charge of companies as big as BP.  Indeed, BP pled guilty to felonies earlier in its history, in connection with pipeline spills caused by gross carelessness on Alaska’s North Slope and the infamous Texas City refinery explosion that killed 15, but the experience seems to have made little if any impression on the executives in London who were determined to sit atop the largest oil company in the world.  

The alternative—prosecutions of individual employees, with the prospect of prison time and fines paid out of personal accounts—works far better as a deterrent. But it requires real  determination on the part of prosecutors.  Indicting the people at the top, the ones who cut costs to the point that dollar signs and fear for their jobs were all their employees could see as they engaged in very hazardous activities, from closing a deepwater well, to operating a mineshaft, to maintaining a flare tower venting explosive gases, will require creativity and a straight back.  So far, at least, that doesn't sound like Eric Holder’s Justice Department.

The idea that picking on the small fry—and whatever he did with those text messages, Kurt Mix is low-level—will loosen tongues, and allow prosecutors to work their way up the corporate ladder sounds intuitive, but it has not always worked out well in practice.  For example, as documented in Sidney Dekker’s book Just Culture, Balancing Safety and Accountability, nurses are often the fall people in investigations of inexplicable hospital deaths.  Rather than encouraging others to come forward, the practice has the opposite effect: paralyzing peers with fear and allowing the top end of the chain—doctors, especially those in management positions—to escape culpability.

DOJ lawyers may well have felt they had no choice but to come down on Mix given his flagrant obstruction of their investigation, and they may well be planning to induce him to roll over on his superiors.  But they’d better not be  hoping we'll mistake this sole prosecution for actually holding BP's long list of malefactors accountable. They certainly got some news clips out of it, but the people of the Gulf Coast will not be fooled if this is all. Moreover, if we want to deter the greedy behavior that led to this worst oil spill in the nation’s history, much tougher action is required.


Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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