Obama and the Democrats have taught their protégé, Trudeau and the Liberal party, well

Why deferred prosecutions are so dangerous

“…despite Massey's poor safety … record, the Upper Big Branch mining disaster stood out as a shocking example of corporate lawlessness. Massey routinely provided employees advance notice of MSHA inspections at the Upper Big Branch mine, which is a federal crime, so that safety violations could be concealed from inspectors. Massey intimidated its workers so that they would not report safety and health violations to MSHA. The company also kept two sets of books at the Upper Big Branch mine - perhaps the most egregious evidence of criminal intent in regulatory cases - one for internal use that noted violations and one for safety inspectors that did not.

The MSHA found that the Upper Big Branch tragedy occurred because Massey allowed unsafe working conditions to persist, and because it ignored other safety measures that would have prevented the explosion and the resulting loss of life. … Methane accumulated and became explosive because Massey failed to provide adequate ventilation or roof control in the mine." The methane subsequently ignited because Massey used a shearing device that was missing seven water spray nozzles and therefore did not have adequate water pressure to move methane away from the shearer and prevent sparking. Further, Massey allowed dangerous levels of loose coal, coal dust, and float coal dust to accumulate over the days, weeks, and months leading up to the explosion, providing an enormous fuel source for the deadly blast that killed miners nearly a mile from the methane release and ignition."³ “…On that basis alone, criminal prosecution would have been warranted. Massey also engaged in a deliberate, long-standing, and deceitful effort to thwart the mine safety laws that were enacted to prevent exactly this kind of tragedy… Instead, on the same day that MSHA issued a 972-page investigative report that lay bare the lawlessness that occurred within Massey, the Justice Department announced that it was entering a non-prosecution agreement with the new owners of Massey and therefore would not bring criminal charges against the company. The United States Attorney justified the non-prosecution because Massey's new owners had agreed to enhance its compliance programs and described the non-prosecution agreement as "the largest-ever resolution in a criminal investigation of a mine disaster. But there was no mistaking the outcome: there would be no criminal charges brought against Massey, no guilty plea or admission of liability by Massey, and no sentencing hearing where the families of the victims could address the court about their suffering,...”⁴ “… The failure to prosecute Massey sent a terrible message about how our society views corporate misconduct and sowed doubts about the Justice Department's commitment to address corporate crime. … If it was not appropriate to prosecute Massey for its crimes, it is difficult for me to envision when criminal prosecution of any corporation would be warranted.

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The Justice Department's deal with Massey continues a disturbing trend where corporations avoid criminal charges by entering deferred prosecution or non-prosecution agreements. … The terms of the agreements are attractive to the government, because they often provide large penalties, …, and promises of cooperation by the companies involved. But plea agreements - the preferred approach prior to the last decade - can offer the same benefits to the government without making it appear that large companies can buy their way out of criminal prosecution.”⁵

Footnotes

1. David M. Uhmann, University of Michigan Law School, in 2013 entitled: “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” MARYLAND LAW REVIEW Vol 72.
2. David M. Uhmann, University of Michigan Law School, in 2013 entitled: “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” MARYLAND LAW REVIEW Vol 72.
David M. Uhmann, University of Michigan Law School, in 2013 entitled: “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” MARYLAND LAW REVIEW Vol 72.
3. David M. Uhmann, University of Michigan Law School, in 2013 entitled: “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” MARYLAND LAW REVIEW Vol 72.
4. David M. Uhmann, University of Michigan Law School, in 2013 entitled: “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” MARYLAND LAW REVIEW Vol 72.
5. SNC-Lavalin paid for Gadhafi son's debauchery while he was in Canada: report
6. Names of SNC employees, executives behind thousands of dollars in illegal Liberal Party donations revealed
7. Where SNC-Lavalin’s push for deferred prosecution came up short The firm lobbied hard in Ottawa, but it didn’t get precisely the deferred prosecution regime it hoped for and not everyone was open to its advances -- Nick Taylor-Vaisey, Feb 22, 2019

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