The 2018 Update to the Listing of Criminal Prosecutions in Disasters and Tragedies

Prof. Denis Binder1
1Chapman University, Tustin, United States

The list has been comprehensively updated to include about 350-400 incidents. The final tabulation will be completed by the end of July. Categories range from natural disasters, environmental disasters, Infrastructure (dams and bridge failures), construction, especially building collapses in India, mining, especially coal mines in China, transportation (aviation, maritime, and railroads), and fires and explosions.

Initial theses are that there has been a substantial increase in these incidents in the New Millennium and that the vast majority of the recent cases are in Asia and the Pacific Islands. Some of the cases involve spectacular disasters, such as the 2013 collapse of the Rana Plaza textile plant in Savar, Bangladesh and the 2010 British Petroleum Gulf of Mexico Blowout. Most though are not of a spectacular nature receiving global attention. .

The listing validates the theses. A vast majority of the cases have occurred in the New Millennium with about 2/3 of them in Asia and the pacific Islands. An increasing number of cases involve public officials being arrested for bribery or dereliction of office. In addition, architects and especially engineers are being prosecuted.

The data shows us that aviation safety has greatly improved in the New Millennium whereas maritime tragedies, especially ferry boats in Africa and Asia, have increased.

An additional thesis is that the prosecutions are prompted by the common use of cell phone cameras and videos, followed by posting on social media. I cannot directly prove this hypothesis.

The incidents arise in both civil and common jurisdictions.

The initial criteria for listing is the bringing of criminal charges, such as an arrest, detention or indictment. Listings are not based on outcomes, such as convictions, since these are often unavailable. The list include resolutions when available. An additional condition for listing, with the exception of a few major oil spills, is that they have to involve a loss of life.

A third condition is that the list does not include acts of terrorism.

Workplace accidents are not included unless they otherwise fall into an existing category. If tough a major incident occurs, such as the Mecca crane toppling over on September 11, 2015, killing 11 persons and injuring 394, then I also include other crane incidents with a loss of life.

The results of this study should be considered by business officials and public decision makers in their acts. Decisions were often made to cut costs by not acting, as with the famous Ford Pinto example of not replacing a part subject to gas tank explosions in rear end collisions, on the premise it would be cheaper to pay wrongful death settlements rather than change the part.

The decision makers might be protected from civil liability trough vicarious liability, insurance, bankruptcy, and forms of immunity. Criminal liability though cuts through all of these shields with the Sword of Damocles hanging over their heads in the form of imprisonment, fines, probation, embarrassment and shame, substantial personal liability, loss of employment, and status.

Decisions may be by companies or governments, but the reality is that the decisions to act or not act are made by individuals. Criminal law can reach these individuals.

Corporations cannot be imprisoned, but they can be dissolved or liquidated (Enron), placed on probation, substantially fined, have their records inspected, subject to a special master, and often lose their identity as the weakened company is taken over by another (Union Carbide into Dow Chemical after Bhopal or Perrier into Nestle after benzene contamination).

Thus the costs and risks of criminal liability should alter the risk/benefit, cost/benefit analyses often employed by now.


Biography:

Professor Binder has been teaching Environmental Law since 1972. His courses are Environmental Law, Torts, and Toxic Torts. However, he has been involved with infrastructure issues since 1986.

Professor Binder was hired by the Seattle District of the Army Corps of Engineers in 1976 to analyze the legal rights of the Colville and  Spokane Indians by the construction of Grand Coulee Dam and the formation of Lake Roosevelt  on the Columbia River. Not only were reservation lands of the Native Americans taken, but their great fishery resource at Kettle Falls was inundated.

His work on the Grand Coulee study led him to being the first Chair of the Association of American Law Schools (AALS) Section of Native American Rights (1977-78), although he is not an Native American. He further served as Chair of the Environmental Law Section 2012-13.

The Bureau of Reclamation’s Teton Dam in Idaho failed on its initial filling during the 1976 summer, killing a dozen people and causing $400 million in damages. The Seattle District of the Corps a few weeks later had an operations decision which resulted in the drowning of two children on the White River below the Corps Mud Mountain Dam.

Thus we had tragedies in design, constructi9on and operations. I  noticed nothing had been written about dam safety from a legal perspective. I wrote an article, and then became an expert on the subject, branching into broader issues of natural hazards, disasters, tragedies, emergency action planning and business continuity, as well as campus safety and cyber security.

The past decade has focused on two aspects of natural and human caused disasters and tragedies. First is the human factor in these incidents, both in being a cause of the incident or through adding to their impacts through failures to act or acting poorly.

The second observation came with the 2013 tragic collapse of the Rana Plaza textile plant in Savar, Bangladesh with a death toll of1,134 persons and another 2,500 injured. Criminal prosecutions were brought.

Suddenly, it appeared that these prosecutions were increasing in the New Millennium. No comprehensive list existed so I decided to create one.

Professor Binder extensively published and spoken on environmental issues, dam safety, emergency action planning, human causation in disasters and tragedies, whether of natural or human origin, and criminal liability.

He has served on a National Research Council Panel on Dam Safety as well as American Society of Civil Engineers (ASCE) task forces. He has given presentations at the Massachusetts Institute of Technology, and in recent years at Clare College Cambridge, University of Copenhagen, and the University of Washington.

He has twice presented at the FEMA (Federal Emergency Management Agency) Training Center in Emmitsburg, Maryland and delivered the Keynote Address at the 2015 Canadian Dam Safety Association Annual Meeting in Banff, Canada.

He has published on emergency planning issues in Istanbul, as well as land use planning in Warsaw, Poland and unfortunate overlaps between Apartheid in South Africa and earlier practices with Native Americans, Asian immigrants, and urban renewal in the United States.

Professor Binder became interested early in life with seismic risks, having grown up in San Francisco near the Hayward and San Andreas faults.

He is trained in the law, receiving his A.B. (1967) and J.D.(1970) from the University of San Francisco, followed by studies at the University of Michigan, LL.M. 1971 and S.J.D. 1973.

I published in September 2016 a list of 200 disasters and tragedies with criminal prosecutions. An interim update was published in late 2017. These studies are the only comprehensive list of criminal prosecutions in disasters and tragedies.

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