The biggest news about the long-awaited indictment of former Massey Energy CEO Don Blankenship is the charge that he isn't facing. To be precise, manslaughter for the deaths of the 29 miners killed in the Upper Big Branch explosion. After reading the indictment, I'm left wondering why he isn't being charged with killing those miners. After all, there's no doubt that his blatant disregard for the safety of those miners led to the explosion.
Federal prosecutors portray Blankenship as a man who was fixated on keeping the coal flowing out of Upper Big Branch above everything else. They rely heavily on memos Blankenship sent to on-site executives ordering them to "run coal"--or variations on that directive. They were to run coal even if it meant postponing projects that would address the most basic safety issues, such as ventilation of methane and coal dust, preventing explosions, preventing floods, and keeping the ceiling from collapsing. Indeed, in at least two of those memos, Blankenship pitched a fit over Upper Big Branch being run like a construction site and not a coal mine. Possibly the most damning memos of all order the ouster of several miners whose jobs were related primarily to safety compliance. Such jobs, Blankenship said, were "ridiculous" and "crazy." Throw in that Blankenship knew about and encouraged the system where mine staff used secret codes to alert miners that federal inspectors were on the way--thus giving them time to cover up violations.
It came as no surprise to me at all that federal prosecutors uncovered evidence of a wide-ranging conspiracy to to flout federal mine safety standards. Quite possibly the most egregious violations of all, in my mind, involve the disabling of methane detectors. Three months after the explosion, it emerged that an electrician had been ordered to disable the methane monitor on a mining machine because it was causing the machine to shut off. It turned out that this was a regular occurrence. The significance? Rescuers were forced to pull back at least TWICE because methane levels were off the scale despite no active mining taking place.
Add it up, and you have to wonder--how could a veteran of the mining industry not know that addressing these measures could get a lot of people killed? To my non-lawyer's mind, that sounds like the very definition of involuntary manslaughter.
As much as I disagree with the decision not to charge Blankenship with manslaughter, it seems prosecutors at least have a defensible reason for not doing so. Apparently they were looking for a smoking gun that showed Blankenship was told that what he was doing was putting the miners in mortal danger--and they didn't find it. Without such a smoking gun, apparently they weren't willing to risk Blankenship using his deep pockets to trigger years of appeals. As most of us know, federal prosecutors usually don't bring indictments unless they have pretty close to an airtight case. There are a lot of instances where even though there is no doubt something happened, it's not enough to meet the standard for a criminal conviction. Apparently prosecutors felt this was one of them.
Blankenship is facing charges of conspiracy to violate mine safety standards, defrauding the Mine Safety and Health Administration, securities fraud, and lying to the Securities and Exchange Commission. The latter two charges are for telling shareholders that he did not tolerate safety violations--a statement that, based on the available evidence, is patently false. If convicted on all charges, he could face up to 31 years in prison. If prosecutors don't think there's enough evidence to charge Blankenship with manslaughter, I have to hope that at the very least they press for something close to that maximum. The sheer egregiousness of Blankenship's actions, given that there is no real-world doubt that they caused 29 people to die, make me think that anything less than 15 years would be a joke.