Experts: Blankenship sentence sends ‘powerful message,’ but laws still too weak

Experts: Blankenship sentence sends ‘powerful message,’ but laws still too weak

Former Massey Energy CEO Don Blankenship makes his way across Virginia Street in Charleston before entering the Robert C. Byrd Federal Courthouse for his sentencing on Wednesday morning.

Legal experts and mine safety advocates are saying the sentencing of former Massey Energy Co. CEO Don Blankenship to a year in prison sends a “powerful message” but also that federal laws need to be updated to provide stronger punishment for worker safety crimes.

Sen. Joe Manchin, D-W.Va., announced Thursday that he is asking the leaders of the Senate Committee on Health, Education, Labor and Pensions to take up a long-stalled bill that would toughen criminal penalties for mine safety crimes.

Meanwhile, Blankenship’s lawyers filed their formal notice that they’re appealing his conviction — and “all orders in this action” — to the 4th U.S. Circuit Court of Appeals.

They also were expected to file an appeal that specifically asks the 4th Circuit to delay Blankenship’s sentence — allowing him to remain free on $1 million bail — until a full appeal of the conviction can be heard and decided. An appeal could take a year or more.

On Wednesday, Blankenship was sentenced to one year in prison and a $250,000 fine — the maximum allowed under current law for his conviction for conspiring to violate federal mine safety standards at the Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.

U.S. District Judge Irene Berger ruled that Blankenship “emphasized the production of coal at UBB while failing to ensure that safety and compliance were given appropriate attention and financial support.”

While Blankenship was acquitted of felony counts filed against him — and received far less than the 30-year-maximum had he been convicted of those charges — mine safety advocates and legal experts still said the case against him and its results mark a remarkable moment in the long history of coal-mining disasters in West Virginia.

“The indictment, trial and criminal conviction of Don Blankenship is certainly a truly historic moment in the history of coal mining in this country,” said Pat McGinley, a West Virginia University law professor who served on longtime mine safety advocate Davitt McAteer’s independent team, appointed by then-Gov. Manchin to investigate the Upper Big Branch explosion.

David M. Uhlmann, a University of Michigan law professor who follows white-collar crime cases, said it is “difficult to overstate how much of an accomplishment it is” for the Department of Justice to successfully prosecute Blankenship.

“Even though the resulting sentence feels too short to the families of the miners who died at Massey mines, it is rare for a chief executive of a large corporation to be successfully prosecuted,” Uhlmann said. “Blankenship’s conviction and sentence sends a powerful message that ruthlessness and lawlessness will not be tolerated in coal country or anywhere else in the United States.”

Rena Steinzor, a professor of law at the University of Maryland, said, “This case should send a shiver down the spine of every top corporate manager who follows the approach described by one witness: ‘Run, run, run until we get caught. When we get caught, then we will fix it.’

Manchin issued statements on Tuesday — the anniversary of the mine disaster — and on Wednesday, after Blankenship’s sentencing hearing, but neither of them mentioned his sponsorship of legislation that would increase the penalties for mine safety crimes. Two reports and an editorial in the Gazette-Mail this week noted that the bill appeared to be going nowhere.

On Thursday, Manchin’s office issued another news release, this time with the headline, “Manchin Urges Quick Action on Comprehensive Mine Safety Bill.” It announced that Manchin had sent a letter to the leadership of the Senate Committee on Health, Education, Labor and Pensions, or HELP, urging them to take up the bill.

“I urge you to bring this piece of legislation before your committee as soon as possible,” Manchin said in a letter to Committee Chairman Lamar Alexander, R-Tenn., and ranking Democrat Patty Murray, D-Wash. “While no sentence or amount of jail time will ever heal the hearts of the families who have been forever devastated, I believe we have a responsibility to do everything we can in Congress to ensure that a tragedy like this never happens again.”

Manchin, a co-sponsor of the Robert C. Byrd Mine Safety Protection Act, does not serve on that committee.

The bill would make it a felony to willfully violate mine safety and health standards when doing so “recklessly exposes a miner to significant risk of serious injury, serious illness or death.” The maximum sentence would be five years in prison and a $1 million fine. Versions of the bill have been pending for years, with the most recent one being introduced in April 2015.

Sen. Shelley Moore Capito, R-W.Va., is not a co-sponsor of the legislation and also does not serve on the Senate HELP committee. Capito’s office did not say Thursday if she would support Manchin’s request that the committee take up the bill.

Margaret Atkinson, a spokeswoman for Alexander, said the committee is “carefully reviewing the legislation” but hasn’t “made any determinations about it at this time.”

None of West Virginia’s Republican House members — Reps. David McKinley, Alex Mooney, and Evan Jenkins — is a co-sponsor of the House version of the legislation.

Luke Popovich, a spokesman for the National Mining Association, would not comment Thursday on the Blankenship case, but he confirmed that the organization continues to oppose the mine safety bill. Bruce Watzman, an association lobbyist who focuses on safety matters, has said the industry group believes existing penalties “are sufficient.”

During the sentencing hearing in U.S. District Court on Wednesday, lead Blankenship defense lawyer Bill Taylor criticized federal prosecutors for the language they used in a sentencing memo filed with Berger.

Noting that Blankenship was not charged with having caused the mine disaster, Taylor said phrases like “powder kegs” and “black dust pervading mines” were “name-calling, word pictures” that “have no useful purpose in the courtroom.” Taylor said such language is not of any use “in the conduct of reasonable proceedings and the decorum of the courtroom.”

“It’s not accident, your honor, that they start the sentencing memo with a list of mine fatalities,” Taylor said. “And it’s because that’s how you accuse a man of killing people, of killing the people who died at UBB.

“You say he’s not on trial for the explosion and then do everything you can to persuade the relatives and the public and the court that he caused it,” Taylor said. “And you crank up the language and the word pictures and you show images which are calculated to inflame public opinion and to have an effect on the court.”

Assistant U.S. Attorney Steve Ruby told Berger that it was important to remember that Blankenship “conspired to commit the type of violations that he knew and that everybody in the industry knew risked causing a disaster, violations of the kind that caused disasters in the past.

“And to properly weigh the seriousness of that offense and what justice requires here, it is critical to remember that the lives the defendant risked were real lives,” Ruby said. “They weren’t abstractions.

“These people weren’t just numbers on one of the reports that the defendant got every 30 minutes,” he said. “They were flesh-and-blood human beings with good lives that deserved to be protected. They were husbands and fathers and sons and brothers and uncles. They weren’t fungible units of labor underground. They were men and, in some cases, women who hunted and fished and rode four-wheelers and watched football and basketball games with their families. They had lives that were immensely worthy and immensely important to the people who loved them.

“That’s what was at stake. That’s what the defendant, by conspiring to violate the mine safety laws, chose to gamble with, and all just for the sake of money.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

FUNERALS FOR TODAY NOVEMBER 19, 2019

Baisden, Stephen - 2 p.m., Handley Funeral Home, Danvillel.

Carper, Madgaline - 1 p.m., Keller Funeral Home, Dunbar.

Casto, Pamela - 1 p.m., White Funeral Home, Summersville.

Ferrell Jr., Jesse - Noon, Matics Funeral Home, Clendenin.

Frazier, Robert - 11 a.m., Tyler Mountain Funeral Home, Cross Lanes.

Jennings, Donald - 1 p.m., Gatens-Harding Funeral Home Chapel, Poca.

Myers, Pauline - 2 p.m., Myers Chapel of Hafer Funeral Home, Elkview.

Stover, Norma - 1 p.m., Armstrong Funeral Home, Whitesville.

Summers, Garnet - 1 p.m., Stevens & Grass Funerals Home, Malden.

Young, Louise - 11 a.m., Snodgrass Funeral Home, South Charleston.