Coal Industry Weighs in on Blankenship Appeal

The coal industry has filed an amicus brief in the Fourth Circuit Court of Appeals in the case of convicted former Massey CEO Don Blankenship.

why not jail

The coal associations of Illinois, West Virginia and Ohio that filed the brief said they wanted to make clear up front that they took no position on the conviction of Blankenship on one count of conspiracy to violate the nation’s mine safety laws in connection with the deaths of 29 miners at the Upper Big Branch disaster in April 2010.

But the coal associations said that they could not “sit idly by and allow the expansion of criminal law to the point that mere involvement of company management in certain affairs can serve as a basis, in whole or in part, for criminal prosecution.”

University of Maryland Law Professor Rena Steinzor, author of Why Not Jail?, said the coal associations’ brief was “analogous to a group of people who want to enter the business of dealing heroin on the street complaining that prosecutors are going after drug kingpins who are already in the business and therefore are chilling their business plans.”

“Coal executives have nothing to worry about if they are alert to safety standards that prevent their miners from being killed and if they make a safety culture an integral part of how they operate,” Steinzor said. “For a group of CEOs to suddenly and deliberately align themselves with Don Blankenship, widely known as the ‘dark lord of coal country,’ is extraordinarily strange because at other times they have denounced him as a rogue and said the mass killing of 29 miners could never happen at their companies.”

The coal associations said they felt “compelled to express significant policy concerns with respect to the potential for criminal prosecution of women and men who make difficult management decisions every day under a broad regulatory scheme where citations from State and Federal regulatory agencies are simply an integral part of a regulatory system that has developed over the years to make mining safer.”

The coal associations argued that “given the heavily regulated nature of the coal industry, where citations for non-criminal violations of the Federal Mine Safety and Health Act of 1977 are a routine aspect of federal regulation designed to make mining safer, it is imperative that the demarcation between business decisions and criminal conduct be clear, concrete and defined.”

“In the context of allegations that a defendant has ‘willfully’ violated the Mine Act, United States Circuit Courts of Appeal have historically required the government to prove that a defendant knowingly, purposely, and voluntarily violated a standard and did so ’in intentional disobedience of the standard” or “in reckless disregard of its requirements.’”

“Since the controlling cases in this area were decided, the Supreme Court of the United States has clarified that in the criminal law, ‘willful’ refers to a culpable state of mind, with the resulting act ‘undertaken with a bad purpose’ or ‘with knowledge that one’s conduct was unlawful.’

The coal associations said that in the Blankenship case, the District Court’s jury instruction defining willful “permitted the jury to convict on a lesser standard of culpability in that the instructions did not require a finding that the defendant acted ‘with a bad purpose’ or ‘with knowledge that his conduct was unlawful.”

“Instead, the instructions permitted a jury to find that a defendant ‘knowingly’ acted or failed to act to prevent violations, which differs from the ‘willful’ state of mind necessary under the law. The instructions also permitted a jury to find that a defendant acted willfully if he or she knew the actions would cause a standard to be violated, or failed to take enough action necessary to comply with a standard. In a business under heavy regulatory scrutiny, such an instruction is especially problematic in that it injects elements of negligence into the criminal law and permits the jury to convict if it believes that the defendant knew his or her conduct, in a general sense, would cause more violations or permit violations to continue, without regard to whether the defendant acted ‘with a bad purpose’ or ‘with knowledge that his conduct was unlawful.’”

The coal associations said that “an industry where regulatory citations will be received for myriad unforeseen circumstances, it must be proven beyond a reasonable doubt that a defendant charged with willfully violating” the coal mine safety law “possessed the requisite mens rea, and not merely that his or her acts or omissions caused or failed to eliminate violations.”

The coal associations said that the “mining industry is concerned that evidence of mere issuance of citations at a mine could potentially be misused to hold nearly any employee, manager or corporate actor liable for conspiracy to commit future violations of the law.”


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