This is where we hope to keep you thinking.  The site does not focus on diversionary minutia.  You get enough of that  incessant spin coming from mainstream media.

 

An Uncivil Action

 
Corporate Attack on Civil Justice
System Places Citizens at Risk

by Jeffrey Kaplan

If you've ever had the feeling that some big corporations don't care if you live or die, you're right -- and there's plenty of evidence to prove it.

With federal enforcement of health and safety laws in a downward spiral, the courts have been one of the few places people could defend themselves or seek restitution. Yet the Bush administration is out to change that by limiting lawsuits intended to punish corporate endangerment of workers and the public in the name of halting "junk lawsuits."

After decades of concealing and lying about dangers of their products with near- impunity, giant tobacco and asbestos corporations have faced consequences in recent years via the civil lawsuit justice system.

Damage awards in civil suits exist not only to compensate the affected people and their families, but also to punish companies with consequences that can serve as an effective deterrent.

Federal law soon will prevent class-action lawsuits (where a single lawsuit represents hundreds or even thousands of harmed people) from being brought into state courts unless at least two-thirds of plaintiffs are from a single state. Instead these suits will be brought before traditionally less-receptive federal court judges.

The law may ensure that some such suits will never be heard, thanks to a 1985 Supreme Court ruling that federal courts cannot hear class actions in which laws of affected states have "material" differences.

Yet that bill was just one front that regressive forces have presented in their drive to limit citizen ability to hold corporations accountable. Perhaps the most important battle will be over the corporate-backed attempt to limit non-economic damages -- intended to deter egregious and outrageous conduct as well as compensate victims -- to $250,000.

The Ford Pinto scandal of the 1970s demonstrates particularly well why weakening corporate liability is downright dangerous. Ford executives possessed pre-production crash test results demonstrating the car's gas tank could explode in relatively minor rear-end collisions. Internal memos revealed that Ford's managers decided settling civil lawsuits brought by victims' families would be cheaper than spending $11 per car to fix the problem. They began selling Pintos in 1971 and allowed dozens of people to die each year.

Then, in 1978, a jury awarded $124 million in punitive damages to a victim who was severely burned (equaling about six weeks profits for the company). Company executives quickly crunched new numbers which told them to fix the tanks (though the penalty wasn't strong enough to prevent a remarkably similar scenario recently with rollover-prone Ford Explorers).

Other companies took similar corrective actions after lawsuits forced them to pay punitive damages for willfully endangering customers or the public. According to a 1987 study by the corporate-funded Conference Board, product liability has "significantly affected management decision making…products have become safer."

Now "tort reform" advocates want to go back to the bad old days. Senate majority leader Bill Frist talks about "predatory trial lawyers," yet he works to grant partial immunity to corporations which knowingly produce products that kill or maim.

To appreciate how little a $250,000 penalty would impact the decisions of the largest corporations, consider that Wal-Mart would sacrifice about 35 seconds worth of revenue to meet such a "punishment."

One shouldn't assume, if Bush's agenda prevails, judges and prosecutors would be drumming their fingers in empty courtrooms. According to a Public Citizen study, corporations are160 times as likely to sue as an average person and 69 percent more likely than individual tort plaintiffs to be sanctioned for filing frivolous claims. Of course Bush's tort reform proposals don't address "runaway lawsuits" by corporations.

Yes, the system could stand some improvements. Allowing plaintiffs and their attorneys to keep the bulk of the punitive damages serves no social purpose and can lead to corruption. Instead, a substantial portion of punitive damage awards could go toward public health and safety advancement or other causes.

But if corporate lobbying groups have their way, you'll have little recourse should some company decide releasing toxic chemicals in your neighborhood makes good business sense, but courts will lower the hammer if your kids download songs from the Internet without paying.

Punitive damages go back a long way -- over 4000 years to the Babylonian Code of Hammurabi, the earliest known legal code. They have been incorporated in the laws of great civilizations since, from the Hebrews to the Romans to English common law and finally the United States .

Attempting to roll them back isn't conservative; it is a radical move that threatens a basic principle of justice which has been part of civilized society since its very beginning.

Jeffrey Kaplan is active in our San Francisco Bay Area Chapter. This article was first published in the spring 2005 issue of our newsletter The Insurgent. Request a free sample.

© 2005 ReclaimDemocracy.org

   The Code for Corporate Responsibility: Effective Tool or Wishful Thinking?

by Jeffrey Kaplan

Not long ago there was a country whose constitution guaranteed equal rights for women, healthcare for all, and the right not only to employment, but to leisure as well. It guaranteed virtually all of the protections assured in the U.S. Bill of Rights. It even went America one better in guaranteeing free speech while placing “at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.”

The problem was that any attempt by a citizen to assert those rights was tantamount to suicide, for the constitution in question was instituted by Joseph Stalin in the Soviet Union in 1936.

When it comes to the law, the realities of political power are what give substance to the words on the page. In our society, the dominant institution is the corporation. We cannot assume that laws requiring corporations, to act in a responsible manner will carry any more weight than the putative rights of Soviet citizens did. Given that corporations blandly evade many already-existing laws intended to govern their behavior, simply adding another statute to the list isn't likely to change matters much.

Yet some activists assume that passing a “Code for Corporate Responsibility” through state legislatures will force a radical change in corporate behavior.

The proposed Code, popularized by attorney Robert Hinckley, would alter state corporate codes to say corporate directors must “manage the corporation in a manner that does not cause damage to the environment, violate human rights, adversely affect the public health or safety, damage the welfare of the communities in which the corporation operates, or violate the dignity of the corporation's employees.”

Unfortunately, we cannot take such verbiage at face value. As any Soviet citizen who bothered to read the Soviet constitution would have recognized immediately, the part that mattered was not the noble declaration of rights but rather that the Communist Party was declared the “leading core of all organizations of the working people, both public and state.”

Although not written into the U.S. Constitution, the corporation has been firmly implanted there not by the people who wrote it, nor by a dictator, but by generations of judges acting at the prompting of a powerful oligarchy. With court-created rights to equal protection, freedom of speech and freedom from searches without warrants, the corporation is inexorably becoming as unanswerable to the people it claims to serve as the Soviet Communist Party was to its “comrades.”

In the Soviet Union , the Party defined “human rights,” “the welfare of communities” and the other items the Code mentions. In the United States the corporation is assuming that function through its use of its first amendment “rights” to control the media and buy political influence. That influence is allowing corporations to define the “truth” in scientific research, labor rights, financial accounting, and virtually every other area of public life.

For example, the federal government, acting at the behest of the biotech industry, declared in a 1992 ruling still in effect that genetically-modified foods are “substantially equivalent” to those developed by traditional breeding methods. That's an astounding assertion, given that biotechnology allows for the crossing of genes from completely unrelated species. In one case a gene from a flounder has been implanted into a strawberry to create a frost-free variety of the fruit.

This is hardly an isolated case of corporate newspeak. Here's another example: the editor of one of the most prestigious medical journals in the world, The Lancet , recently wrote, “medical journals have become an important but under-recognized obstacle to scientific truth-telling” and “have devolved into information-laundering operations for the pharmaceutical industry.”

The Code of Corporate Responsibility would do little to stop this horribly corrosive process. As the legislatures and the government agencies that define and administer the Code become subject to corporate control, we easily could wind up with “responsible” corporations as fishy as those bioengineered strawberries.

If we are to reclaim our democracy, the first order of business will be to get corporations out of our constitution and prohibit them from using their wealth to corrupt politics. But even that is only a prerequisite for the democratic conversation we need to have concerning the role of the corporation in a more economically just society.

At one time it was well understood that the primary reason for granting the privileges that incorporation entails was not profit for shareholders, but rather the public welfare. In keeping with that principle, most states firmly enforced laws designed to ensure that corporations could not abuse their privileges: corporations were not permitted to own other corporations, were restricted in size, the scope of their business activities, and their lifespan.

If a corporation violated the public trust, state governments could and would revoke the privilege of a corporation to exist. The federal government recently did something similar when it effectively put the Arthur Anderson Corporation out of business after the accounting firm was found guilty of helping Enron perpetrate a multi-billion dollar fraud.

But that is a rare event these days. Investors and managers must understand once again that severe legal penalties exist for engaging in “corporate abuse.” Even more important, we must re-establish comprehensive democratic control over corporate behavior, perhaps in part by implementing restrictions similar to those enforced in the 19 th Century.

All of this entails a great deal more than inserting a few words into corporate codes--it will require overturning a large body of 20 th Century law and social practice.

Yes daunting, but a worthwhile task. After all, if investors and managers want to put their own interests first, why should a democratic society allow them the special privileges that come with incorporation?

Clearly, something like the Code of Corporate Responsibility can be useful - but only within a broader political and economic context that citizens define and control. Otherwise the corporations themselves will define and control it for us.
 

Beware of "Junk Lawsuits" Hype:

Citizens' right to hold corporations accountable is the real target

by Jeff Milchen

“We think lawsuit abuse is a serious problem in this country," proclaimed Dick Cheney while debating John Edwards in early October. The"runaway lawsuits" theme is repeated at almost every Bush/Cheney campaign stop.

Knowing the record of his own company, I can't help wondering whether Cheney is like an alcoholic seeking help, for during his five-year reign as CEO, Halliburton and its subsidiaries filed more than 150 separate court actions (documented by Halliburton Watch). Those lawsuits pursued injunctions, evictions, and attempted to collect alleged debts from other corporations and individuals, sometimes for as little as $1,500.

But Halliburton is just part of a larger pattern. A recent study by Public Citizen indicates that the 7 million U.S. corporations file four times as many lawsuits as the 281 million individual Americans, so corporations are 160 times as likely to sue as an average person.

The study covered the only four U.S. jurisdictions that require records with enough detail to distinguish corporate-initiated lawsuits from those filed on behalf of individuals: Mississippi, Arkansas, Philadelphia and Cook County (Chicago and vicinity).

And what about the "frivolous lawsuits" we hear about constantly? The same Public Citizen study noted, "businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses."

Scrolling down big business' hit list, next up is "runaway awards." Here again, if large awards are a serious problem, corporations seem to be the primary cause. Last November, National Law Journal reported that eight of the year's 10 largest awards to date involved corporations suing each other.

And while Cheney blamed frivolous lawsuits for their "devastating impact" on health-care costs during the VP debate, perhaps he should focus on suits filed by pharmaceutical corporations, rather than injured citizens. In 2001, a federal court ruled that Bristol-Myers Squibb (BMS) filed frivolous patent-infringement lawsuits to block the introduction of generic competition for its lucrative anti-anxiety drug, BuSpar. Despite "losing" the claim, BMS delayed competition for four months, during which it gouged Americans for about four times the price it could charge in a competitive market. BMS's actions were so egregious that the Federal Trade Commission ordered the company to halt "any fraudulent or objectively baseless claim or otherwise engage in sham litigation."

Again, this is an example of systemic abuse. As Merrill Goozner documents in his exhaustively-researched book, "The $800 Million Pill," baseless claims to extend patent monopolies are routine practice for BMS and other drug manufacturers.

Of course, the corporate lobbyists behind calls for "tort reform" aren't so concerned by these cases. Class-action lawsuits -- which help average citizens harmed by corporate negligence or malevolence to gain compensation and punish the offender -- are their target. So while Congress considers capping class-action punitive damages (awards in such cases have not increased over the past decade) at $250,000, the bill wouldn't touch frivolous suits like those filed by BMS.

I've worked for years organizing and advocating for independent business owners, and learned there are indeed a few unscrupulous lawyers filing sleazy lawsuits. Since large corporations generally will fight any questionable lawsuit, small businesses that can't afford the time or risk of fighting are the usual targets.

We should strive to eliminate such suits and rid the legal profession of those who file them, but a $250,000 cap on punitive damages would do little to discourage the offenders. Their aim is to coerce smaller out-of-court settlements, not go to trial.

That cap on damages, however, would endanger every American, because the amount is inadequate to deter or change criminal practices at large companies. Consider that BMS voluntarily paid more than $500 million to victims of its fraudulent patent claim, and you quickly see that a $250,000 punishment is insufficient to deter large corporate criminals.

When asked during the debate if he thought Senator Edwards, a former trial lawyer, was part of the lawsuit problem, Cheney responded, "I'm not familiar with his cases." (As if Bush campaign staffers didn't scrutinize every lawsuit the man ever filed). But as The Washington Post noted, Edwards' previous political opponents seeking dirt "came away frustrated because Edwards' clients were almost universally sympathetic figures." Like most trial lawyers, he helped genuine victims get justified compensation and deter wrongdoers from harming others.

The attack on trial lawyers is really an attack on citizens' ability to sue corporations, and it goes far beyond this election cycle; it's part of a long-term assault on the rights of citizens and small business owners to hold corporations accountable via the courts. Having successfully undermined or dismantled regulations on big business in many realms, the next corporate agenda item is to regulate us -- to strip citizens of our right to punish corporate crime and criminals.

We can and should find ways to curb groundless lawsuits, including disbarring lawyers deemed by judges and peers to have repeatedly filed unjustified lawsuits (and nobody despises unscrupulous attorneys more than honest ones). Genuine improvements, however, must work narrowly to discourage the small fraction of suits that truly are frivolous, not shield giant corporations from one of our few functioning tools to hold them accountable.

Jeff Milchen directs ReclaimDemocracy.org.
 

Ballot Initiatives Hijacked by Corporations

by Jeffrey Kaplan and Jeff Milchen

Think of corporate influence peddlers and you might envision distant figures working the halls of Congress and state capitols. But more and more, they roam city halls, municipal offices and even local shopping malls attempting to snuff the growing trend of communities setting limits on corporate activities. Regardless of location, the goal of the corporate lawyers and lobbyists remains the same: to use the enormous wealth of their employers to get what they want. And they're willing to seize the initiative -- the ballot initiative, theoretically the purest form of democracy -- to accomplish their goals.

California evidenced this trend on March 2 elections, when several communities faced corporate attempts to spend their way to victory on ballot initiatives.

Wal-Mart -- the world's largest corporation and soon to become the nation's largest corporate investor in political candidates for federal offices -- wasn't pleased with a decision last year by officials in Contra Costa County (east of San Francisco Bay). The County recently joined a growing number of communities nationwide to pass laws limiting the size of enormous new "supercenters" that sell groceries as well as general merchandise. Wal-Mart used company funds to hire a corps of signature gatherers and placed an initiative on the ballot to rescind the law. In a slap in the face to its workers, Wal-Mart paid these political operatives $10 per hour -- $2 more than its typical store employees. Wal-Mart's million-dollar public relations campaign tripled spending by opponents and persuaded voters to overturn the ordinance (the company was aided by the poor construction of the law).

But big money doesn't win every time. On the same day, voters rejected attempts by CropLife America and Pacific Lumber to translate their economic power into political victories.

CropLife, a political creation of corporations such as Monsanto, Dow and DuPont, funded a failed campaign to defeat a Mendocino County citizen initiative that would ban growing genetically manipulated crops or animals within the county. Winning 57% of votes cast, Measure H made Mendocino the first county in the nation to pass such a ban despite the industry opponents spending more than $600,000 - a county record that exceeded $54 in expenditure for each "no" vote.

Meanwhile, just north of Mendocino, executives at Pacific Lumber Company (a division of giant Maxxam Inc.) were upset with Humboldt County district attorney Paul Gallegos, who sued Pacific last year for allegedly lying about plans to log giant redwoods trees on steep slopes. Gallegos filed the suit after the logging caused extensive flooding and damage to local farmland. Pacific spent about $250,000 to run a ballot initiative to oust Gallegos from his job, but failed decisively. Even political opponents of the district attorney balked at allowing a transnational corporation to terminate a fraud case by eliminating its accuser.

But Pacific isn't done yet -- it's emulating Nike's failed 2003 attempt to claim a constitutional right to lie. The company has filed a countersuit claiming an obscure anti-trust provision - the "Noerr-Penington Doctrine" -- effectively gives corporations the legal right to lie to government officials.

Though money doesn't necessarily buy a win, we should question why corporations are permitted to use corporate funds to influence any democratic processes in the first place. Despite occasional setbacks, corporations have steadily seized more power over our laws and public institutions, thanks to decades of systematic efforts that have reshaped the law to fit corporate agendas rather than citizens' interests.

Back in 1971, a corporate lawyer named Lewis Powell wrote a telling memo to the U.S. Chamber of Commerce. He asserted that big business should seek power through "careful long-range planning and implementation" and that power "must be used aggressively and with determination, without embarrassment." Powell specified that "The judiciary may be the most important instrument for social, economic and political change."

A month later Richard Nixon appointed Powell to the United States Supreme Court. Powell went on to write the opinion in First National Bank of Boston v. Bellotti, a 1978 decision that created a First Amendment "right" for corporations to influence ballot initiatives and other political campaigns. As one writer commented at the time in the American Bar Association Journal, the Court had constructed a "monster, like Dr. Frankenstein's creation" that was likely to trample over democracy. The Bellotti decision is one major reason why corporations now dominate national politics and why companies like Wal-Mart can impose the will of corporate executives on communities around the country.

Undermining democracy can be lucrative for corporations but costly for the rest of us. In the case of Wal-Mart, its legendary low wages don't impact only workers -- many employees end up requiring public assistance despite having jobs, while better-paying competitors are driven out of business. According to a recent University of Southern California study, the spread of Wal-Mart supercenters in southern California could result in $1.4 billion in wage and benefit losses annually.

Citizens still win a few battles against corporate interests. But winning the larger struggle -- one to determine whether it's citizens or corporations that will control the future of our communities and country -- will depend on changing the rules of engagement.

As Contra Costa county Supervisor Jon Gioia stated, it's about local citizens having the right to make the laws in their own communities, "not Wal-Mart executives in Bentonville, Arkansas ."

Milchen directs ReclaimDemocracy.org. Kaplan is an organizer of the group's San Francisco bay area chapter (email: JLKaplan"@"concentric.net to learn more) We soon will begin gathering support for a constitutional amendment to revoke corporate claims to Bill of Rights protections. See news or opinion on the Humboldt recall attempt or news on the Mendocino initiative.

Editor's note: Unknown to us at the time of publication, another California community, San Marcos (near San Diego) overturned a city council decision via referendum, negating the approval of second a Wal-Mart in the city.

When Workers Die

U.S. Rarely Seeks Charges for Deaths in Workplace

by David Barstow

Editors note: This excellent investigative report is one we hope will draw greater attention to the disgraceful lack of prosecution for corporate crimes that kill employees. But we wonder if the Times will call for real punishment of those responsible for deadly corporate crimes while a case is open. For example, in 2001, we prodded the Times in vain to seriously investigate the criminal culpability of Ford and Firestone executives or to publish an op-ed calling for criminal punishment of those responsible--they did neither. See Ford & Firestone: Killing for Capital for that story.
Every one of their deaths was a potential crime. Workers decapitated on assembly lines, shredded in machinery, burned beyond recognition, electrocuted, buried alive - all of them killed, investigators concluded, because their employers willfully violated workplace safety laws.

These deaths represent the very worst in the American workplace, acts of intentional wrongdoing or plain indifference that kill about 100 workers each year. They were not accidents. They happened because a boss removed a safety device to speed up production, or because a company ignored explicit safety warnings, or because a worker was denied proper protective gear.

And for years, in news releases and Congressional testimony, senior officials at the federal Occupational Safety and Health Administration have described these cases as intolerable outrages, "horror stories" that demanded the agency's strongest response. They have repeatedly pledged to press wherever possible for criminal charges against those responsible.

These promises have not been kept.

Over a span of two decades, from 1982 to 2002, OSHA investigated 1,242 of these horror stories - instances in which the agency itself concluded that workers had died because of their employer's "willful" safety violations. Yet in 93 percent of those cases, OSHA declined to seek prosecution, an eight-month examination of workplace deaths by The New York Times has found.

What is more, having avoided prosecution once, at least 70 employers willfully violated safety laws again, resulting in scores of additional deaths. Even these repeat violators were rarely prosecuted.

OSHA's reluctance to seek prosecution, The Times found, persisted even when employers had been cited before for the very same safety violation. It persisted even when the violations caused multiple deaths, or when the victims were teenagers. And it persisted even where reviews by administrative judges found abundant proof of willful wrongdoing.

Behind that reluctance, current and former OSHA officials say, is a bureaucracy that works at every level to thwart criminal referrals. They described a bureaucracy that fails to reward, and sometimes penalizes, those who push too hard for prosecution, where aggressive enforcement is suffocated by endless layers of review, where victims' families are frozen out but companies adeptly work the rules in their favor.

"A simple lack of guts and political will," said John T. Phillips, a former regional OSHA administrator in Kansas City and Boston. "You try to reason why something is criminal, and it never flies."

In fact, OSHA has increasingly helped employers, particularly large corporations, avoid the threat of prosecution altogether. Since 1990, the agency has quietly downgraded 202 fatality cases from "willful" to "unclassified," a vague term favored by defense lawyers in part because it virtually forecloses the possibility of prosecution.

The Times's examination - based on a computer analysis of two decades of OSHA inspection data, as well as hundreds of interviews and thousands of government records - is the first systematic accounting of how this nation confronts employers who kill workers by deliberately violating workplace safety laws. It identified a total of 2,197 deaths, at companies large and small, from international corporations like Shell Oil to family-owned plumbing and painting contractors in quiet corners of America.

On the broadest level, it revealed the degree to which companies whose willful acts kill workers face lighter sanctions than those who deliberately break environmental or financial laws.

For those 2,197 deaths, employers faced $106 million in civil OSHA fines and jail sentences totaling less than 30 years, The Times found. Twenty of those years were from one case, a chicken-plant fire in North Carolina that killed 25 workers in 1991.

By contrast, one company, WorldCom, recently paid $750 million in civil fines for misleading investors. The Environmental Protection Agency, in 2001 alone, obtained prison sentences totaling 256 years.

OSHA has often made itself an easy target for criticism. Labor scolds the agency for taking years to write new safety rules. Business ridicules it for nitpicking inspections. But no one disputes OSHA's duty to deter employers from killing workers by deliberately violating safety laws, and few object to the idea that OSHA should at least ask prosecutors to look at such cases.

Yet OSHA - whipsawed by criticism, fearful of public embarrassment - has become almost paralyzed by even this task, current and former officials agreed.

In an interview this month, OSHA's administrator, John L. Henshaw, acknowledged that the agency had referred few cases to prosecutors. But he insisted that OSHA seeks criminal sanctions "to the fullest extent that the law provides." And he emphasized that workplace deaths had fallen over the last five years.

OSHA has not sought more prosecutions, he said, because officials concluded that most cases simply lacked enough evidence for a conviction. "There's a higher degree of evidence that you need," he said.

While true in some cases, this is only part of the explanation. Before OSHA deems a violation willful, it subjects the case to especially intense scrutiny, sometimes spending thousands of hours amassing evidence. It does so because of the stigma attached, and because the maximum fine for a willful violation is 10 times higher than for almost any other kind of violation. Only 404 of OSHA's 83,539 cited safety violations this fiscal year were labeled willful.

"We make sure we have the evidence," said John B. Miles Jr., OSHA's regional administrator for five Southern states.

Yet when it comes to deciding what to do with that evidence, many current and former officials said, the culture of reluctance rules, regardless of which party controls Congress or the White House.

Paul Bakewell, who recently retired after 26 years as an OSHA inspector and supervisor in Colorado, said that inspectors meet so much resistance that the very notion of pursuing criminal charges soon disappears - especially since killing a worker is only a misdemeanor under federal law.

"I personally didn't think, `Oh, it's a fatal, it's willful, it should go criminal,' " Mr. Bakewell said, adding, "You just don't need that grief. The honest to God truth is that it's just going to slow you down. They want numbers, lots of inspections, and it will hurt you to do one of these cases."

A Tool That Few Will Use
Posters crammed with statistics line the hallway to John Henshaw's office in Washington. "Metrics," he calls them.

Numbers drive OSHA's management culture. When Mr. Henshaw speaks of his accomplishments at OSHA, part of the federal Labor Department, he makes his case with numbers - 3,000 more inspections this year than in 2000, 9,000 more serious violations.

But one number missing from Mr. Henshaw's posters is how often OSHA uses its ultimate enforcement tool, the ability to refer cases to federal or state prosecutors.

The omission matters greatly, veterans of the agency said, because at OSHA, what gets counted gets rewarded. And if it is not counted, that sends an unmistakable signal.

When it comes to an interest in prosecuting cases, William M. Murphy, the top OSHA official in Cincinnati until his retirement in 2002, said, "We've never communicated that to the staff."

In the early 1990's, OSHA agreed that inspectors should be trained to work on criminal investigations. The program was discontinued after fewer than 100 employees had the training.

In 1994, the agency formed an Enforcement Litigation Strategy Committee to focus resources on cases with "maximum deterrent effect." Deaths involving willful violations were high on the list. The committee disbanded after a few meetings.

Two years later, OSHA established a policy requiring its local offices to advise Washington in writing of "cases appropriate for potential criminal prosecution." The policy has not been enforced; OSHA headquarters said it could not find any such written notifications.

The Environmental Protection Agency has more than 200 criminal investigators and works closely with three dozen environmental prosecutors at the Justice Department. But Richard E. Fairfax, OSHA's director of enforcement programs, said he had never met William P. Sellers IV, the one federal prosecutor in Washington who works almost entirely on workplace safety crimes. "I know the name," Mr. Fairfax said in August, "but I'm not placing it."

Indeed, although Mr. Henshaw and his top assistants in Washington insist on approving any proposed fine over $100,000, they said they played virtually no role in deciding when the agency seeks criminal charges. That decision, they said, has been left almost entirely to local and regional OSHA officials and Labor Department lawyers.

And yet in at least one region of the country, OSHA inspectors have been instructed in writing not to initiate contact with state law enforcement authorities, whose local laws often offer stronger and more flexible criminal sanctions.

Until presented with results of the Times examination, the agency had never done a comprehensive study of how often workers were killed by willful safety violations.

The Times tried to identify every such workplace death in the last 20 years. It also tracked every prosecution, conviction and jail sentence that resulted from these deaths, and it tallied every civil fine.

The deaths were the subject of 1,798 investigations, 1,242 of them by OSHA. The rest were done by the 21 states and one territory with their own versions of OSHA. But with a handful of exceptions these state agencies have been just as hesitant to seek prosecution as the federal OSHA.

In all, The Times found 196 cases that were referred to state or federal prosecutors, resulting in 81 convictions and 16 jail sentences.

Mr. Henshaw declined to comment specifically on The Times's findings but said he considered it a high priority to seek prosecution for willful violations that kill. "We have a law under the Occupational Safety and Health Act that gives us tools, both civil and criminal, to discharge our responsibility and to correct workplaces," he said. "And that's what we're trying to do."

High Hurdles From Within
When people at OSHA explain their reluctance to pursue criminal prosecutions, they sometimes begin by pointing to the example of Ronald J. McCann.

Mr. McCann, acting regional administrator in Chicago during the early 1980's, was an early champion of criminal prosecutions. He had a simple, no-nonsense approach: If a death resulted from a willful violation, it should be referred to the Justice Department without delay.

But in the early days of the Reagan administration, he said in a recent interview, that policy brought a clear rebuke from OSHA's new political appointees. Twelve times he sought prosecutions. "They were all thrown out." Soon after, he said, he was removed from his job and transferred so often that he ended up living in a tent to avoid moving his family again.

"We wanted to stop people from killing," said Mr. McCann, now retired. "We wanted to make an example of those few people who do so much harm to society for their own personal gain."

But that impulse - which many OSHA inspectors clearly share - often runs headlong into a deeper instinct to avoid any action that might draw unwelcome scrutiny from Washington. That instinct is reinforced, many OSHA employees say, by an obscure but powerful arm of the Labor Department, the Office of the Solicitor, which oversees the work of the department's 500 or so lawyers.

The solicitor, a political appointee who reports to the labor secretary, makes the final decision on whether to refer a case to the Justice Department. Thomas Williamson Jr., the Labor Department's solicitor under President Bill Clinton, called the solicitor's office a "choke point control" - a mechanism to, among other things, protect the labor secretary's political flanks.

And in Mr. Williamson's view, referring cases carries risks OSHA can ill afford. "You lose control of it," he explained. "You start accusing people of crimes and they get acquitted, you're going to destroy the credibility of the agency."

For his part, Mr. Phillips, the former regional administrator, said, "I had more fights with our solicitors than I did with any employer's attorneys."

Joseph M. Woodward, the top OSHA solicitor at the Labor Department, described his office's work as necessary and prudent.

"These are cases where somebody has died and you're looking at maybe it was even a deliberate violation of the standard, so they're very high-priority cases," Mr. Woodward said. "It's a very serious charge, and you don't want to make it unless you think that it's warranted, and that you can prevail. So you analyze it under that much higher burden of proof."

But the practical result, current and former OSHA officials say, is that to have even a chance of referral, a case must clear an unwritten threshold that has little to do with actual legal requirements. In interviews, OSHA investigators used words like "smoke screen" and "snow job" to describe the legal objections they encounter.

"It can't just be willful, it has to be obscenely willful," said Jeff Brooks, who spent 16 years as an inspector and supervisor before leaving the agency in 2001. "If they didn't purposely with malice seek to kill this person, then you don't prosecute."

What this means, they say, is that prosecutors often never even get to assess cases with compelling evidence of criminal wrongdoing. In 1998, for example, inspectors concluded that willful safety violations had resulted in a worker being crushed to death by a front-end loader in Beaver Falls, Pa. They found that the employer, Venango Environmental, had long known that the machine had defective brakes and steering. An administrative law judge called the case "replete with evidence" that Venango had committed willful safety violations.

The case was not referred to prosecutors.

In interviews, a number of federal prosecutors said they would be happy to take on more of these cases. But Joseph A. Dear, who served as OSHA administrator under President Clinton, emphasized that such eagerness was not universal. "After you do all the work, get the file perfect," he said, "you take it to a U.S. attorney, and they say, `It's a misdemeanor?'"

Human Life vs. Harassed Burro
When Congress established OSHA in 1970, it made it a misdemeanor to cause the death of a worker by willfully violating safety laws. The maximum sentence, six months in jail, is half the maximum for harassing a wild burro on federal lands.

With more than 5,000 deaths on the job each year, safety experts and some members of Congress have long argued that hundreds of lives could be saved if employers faced a credible threat of prosecution.

"A company official who willfully and recklessly violates federal OSHA laws stands a greater chance of winning a state lottery than being criminally charged," said a 1988 Congressional report.

Actually, it overstated the odds for much of the country. During the two decades examined by The Times, in 17 states, the District of Columbia and three territories, there was not a single prosecution for willful violations that killed 423 workers.

There have been repeated efforts to make it a felony to cause a worker's death. But strong opposition from Republicans and many Democrats doomed every effort. Congress did, however, agree in 1984 as part of a broader sentencing reform package to raise the maximum criminal fine to $500,000 from $10,000. And in 1991, it raised civil fines. But the added deterrent appears modest.

From 1982 until 1991, the median fine for a willful violation that killed a worker was $5,800, according to the Times examination. Since 1991, the median has been $30,240.

A much less publicized change has actually eroded any remaining potential for prosecution. Starting in 1990, with a death at a Nebraska meatpacking plant, OSHA began to accede to employer demands that it replace the word "willful" with "unclassified" in citations involving workplace deaths.

Unclassified was a term invented by lawyers who specialize in defending corporations against OSHA. Indeed, the word appears nowhere in the law or regulations governing OSHA. But the agency's field manual permits the "unclassified" designation when an employer is willing to correct unsafe conditions "but wishes to purge himself or herself of the adverse public perception attached to a willful" violation.

Mr. Woodward, the top OSHA solicitor, acknowledged that employers "might occasionally" push for unclassified violations to minimize criminal liability. But he defended the arrangement as a useful compromise.

Companies, he explained, "might do everything in the world that you wanted them to do as far as fixing the problem and making the workplace safer for the workers." But the big sticking point, he said, was "they didn't want to admit willful."

Major corporations, and their lawyers, have been increasingly successful in persuading the agency to eliminate the word "willful," The Times found. The agency has done this even for employers who have repeatedly shown a deliberate disregard for safety laws, resulting in multiple deaths.

The effects of the new policy have been felt by families in several small towns around the country where, over the last decade, refineries and petrochemical plants either owned or co-owned by Shell Oil have blown up because of safety violations.

Each town in turn was consumed by the disasters, the funerals and the cleanup. And every time, safety investigators would show up and dig in, filling thick files with the details of how management had disregarded known hazards. Often, the safety violations were exactly the same from plant to plant. And yet in each case, defense lawyers persuaded regulators to label the most flagrant violations unclassified.

In Belpre, Ohio, an explosion in 1994 killed three workers. OSHA called it a "runaway chemical reaction" and blamed poor training, inadequate maintenance, bad equipment and shoddy oversight.

Anacortes, Wash., a small town on Puget Sound, shook from the explosions the day before Thanksgiving 1998. Necessary maintenance had been put off, investigators found, and pledges of safety improvements had been neglected. Six men died.

Almost three years later, in Delaware City, a crew was working near a tank filled with spent sulfuric acid at the Motiva Refinery, a plant with a long history of leaks, injuries and deaths. Managers had issued the work order despite employees' warnings that the tank was severely corroded and overdue for maintenance, according to court records and OSHA documents. A welding torch ignited leaking vapors, and the explosion flung Jeffrey Davis, 50, into the tank. The acid consumed all but the steel shanks of his boots.

Then last year, a worker was killed at the Shell plant in Geismar, La. OSHA inspectors spent over 12,000 hours documenting a series of preventable safety violations.

In all, Shell and partners paid $4.3 million in OSHA fines for the 11 deaths, sums too small to make a meaningful dent in Shell's earnings. There was no admission of wrongdoing, no referral to prosecutors.

"When you are talking settlement, essentially the rules go away," said Robert C. Gombar, a lawyer for Shell in the Anacortes and Delaware City explosions. Mr. Gombar's firm, McDermott, Will & Emery in Washington, advertises on its Web site that it "pioneered" the use of unclassified violations to avoid "unnecessary complication presented by harmful labels." In the Shell cases, Mr. Gombar said, the company simply persuaded OSHA that it should not cite any willful violations. "They know we'll litigate and we'll win,'` he said.

In a written statement, Shell said that it was treated no differently from any other company and that its "highest priority" was employee safety.

That was not the accountability many of the 11 families had envisioned.

Dyna Fry had learned from the evening news that her husband, Woody, was among those killed in Anacortes. She became consumed with piecing together what happened. She said she yearned for a criminal trial so managers would be forced to "make eye contact with my family."

Other Shell widows and relatives felt the same way.

"We would have worked in McDonald's for the rest of our lives if it meant anyone would go to jail for this," said Nicole M. Granfors, whose father, Ronald J. Granfors, was killed in Anacortes.

In Delaware, the state's congressman and senators wrote to Mr. Henshaw this year and demanded that he account for "OSHA's inexplicable decision" to reduce the violations in Delaware City. OSHA's handling of the case, they wrote, had compounded "the emotional trauma for the family."

In response, OSHA's deputy administrator, R. Davis Layne, wrote that OSHA had simply "exercised its prosecutorial discretion" to settle a contested case. Families, he explained, are not consulted "regarding confidential litigation matters."

But if OSHA saw no potential for a criminal case, Delaware's attorney general, M. Jane Brady, did. In an interview, she recalled the stunned reaction of one Motiva lawyer when she announced her intention to seek charges: "You got to be kidding me."

This summer, Motiva pleaded no contest to criminally negligent homicide and assault, only the second such prosecution in state history. The company was ordered to pay $46,000 in fines, then the maximum under state law, and $250,000 more to a victims fund. Soon after, Delaware changed its law to allow far higher fines.

A Response by the States

Once the dominant regulator of workplace safety, the federal government is falling behind a growing number of states.

At least four states now require safety inspectors to notify prosecutors of deaths caused by safety violations. Eleven states have increased prison terms beyond the six-month federal maximum. In Michigan, California and Arizona, it is now not only a crime to commit safety violations that kill but also to commit safety violations that cause severe injuries.

Again this year, there is talk of toughening the federal law. Three months ago, in an evaluation of OSHA's handling of deaths among immigrant workers, the Labor Department's inspector general recommended that OSHA study the potential deterrent effect of making it a felony to commit willful violations that kill. In Congress, Senator Jon S. Corzine, a New Jersey Democrat, is proposing legislation to increase the maximum sentence to 10 years from six months.

Like past efforts, this one will meet fierce resistance.

"Obviously we're not going to support the expansion of criminal penalties," said Randel K. Johnson, vice president for labor issues at the United States Chamber of Commerce.

At OSHA, Mr. Henshaw recently ordered up some new metrics. After The Times sought comment about its analysis, he asked his agency to conduct its own. The results, his aides said, closely mirror those found by The Times.

They argued, however, that 151 cases could not have been referred to federal prosecutors because the willful violations were of the employer's "general duty" to provide a safe workplace, not of a specific safety standard. Federal law, they said, does not permit referral in such cases. They conceded, though, that such cases could be referred to state and local prosecutors.

Nevertheless, Mr. Henshaw made it clear that he saw no need to change either the law or OSHA's handling of these worst cases of death on the job.

"You have to remember," he said, "that our job is not to rack up the individual statistics that some people like to see. Our job is to correct the workplace."

Remy Gerstein and Robin Stein contributed additional reporting for this article. The data analysis was done by Tom Torok.

Each week we review dozens of articles and essays from both corporate and independent media sources and choose one that we believe brings you unique or important information or perspectives on issues of democracy and corporate power. Opinions presented do not necessarily reflect those of ReclaimDemocracy.org.Index of past features
Fair Use Notice
This site occasionally reprints copyrighted material, the use of which has not always been specifically authorized by the copyright owner. We make such material available in our efforts to advance understanding of issues. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is available without profit. For more information go to: http://www4.law.cornell.edu/uscode/17/107.html. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.

[ Home ]

Click here to enter this hundreds of postings

Address Questions or comments to [  admin@pushhamburger.com  ]