The Boom and Bust of American Imprisonment

By Garrett, Brandon L. | Texas Law Review, November 1, 2017 | Go to article overview

The Boom and Bust of American Imprisonment


Garrett, Brandon L., Texas Law Review


The Boom and Bust of American Imprisonment

A Book Review of:

WHY THEY DO IT: INSIDE THE MIND OF THE WHITE-COLLAR CRIMINAL. By Eugene Soltes. 2016.

CAPITAL OFFENSES: BUSINESS CRIME AND PUNISHMENT IN AMERICA'S CORPORATE AGE. By Samuel w. Buell. 2016.

FREE MARKET CRIMINAL JUSTICE: HOW DEMOCRACY AND LAISSEZ FAIRE UNDERMINE THE RULE OF LAW. By Darryl K. Brown. 2016.

"I'm set up to fail here," said a miner at the Upper Big Branch mine in West Virginia.1 He was supposed to spread rock dust around the sprawling underground mine to prevent explosions, but dusting machines were broken, and there were not adequate supplies.2 Mining explosions can be caused when methane buildup contacts a heat source, when particles of coal dust contact a heat source, or a combination of both.3 Large fans circulating air can prevent the buildup of both methane and dust.4 Limestone powder or rock dust can render the coal dust inert and also absorb heat from any explosion to make it more minor.5 Here in the Upper Big Branch mine, though, as another miner said, "so often, I couldn't count," there was "low air," or improper ventilation.6 A mining superintendent described a far-reaching conspiracy to hide a range of persistent violations from inspectors and to falsify records, all for cost-cutting reasons.7 In April 2010, a massive explosion in the mine claimed the lives of twenty-nine workers.8 It was the deadliest mining disaster in the United States in forty years.9

Five years later, Don Blankenship, the former CEO of Massey Coal, faced federal criminal charges at a trial. In December 2015, Blankenship was acquitted of the most serious charges of securities fraud and conspiracy and was convicted of a misdemeanor mine-safety offense.10 The trial lasted twenty-four days, and the jury deliberated for nine days.11 At sentencing in April 2016, he told the judge, "[i]t's important to me that everyone knows that I am not guilty of a crime."12

The judge, describing Blankenship's remarkable rise to head Massey Coal, said, "Instead of being able to tout you as one of West Virginia's success stories, however, we are here as a result of your part in a dangerous conspiracy."13 Blankenship received a prison sentence of one year, less than those of underlings who pleaded guilty and fully cooperated with prosecutors.14 The rejected charges could have earned him up to a thirty-one-year sentence.15

But any criminal conviction of a CEO of a corporation is a rare event. After all, Blankenship denied knowledge of day-to-day affairs at the mine.16 He could afford top lawyers; he ran up $5.8 million in legal fees even before the trial began.17 (By comparison, court-appointed lawyers for indigent defendants are paid on average about $53 an hour in West Virginia, and the average case charges $754 in costs.)18 Indeed, the company that bought Massey Coal is obligated to pay those legal fees, a court has ruled.19 Having served his sentence and lost on appeal, Blankenship is seeking certiorari from the U.S. Supreme Court.20

The defense costs in that one case may run up to as high as half of the state of Louisiana's entire annual budget for public defense, and perhaps far more. In Louisiana, the criminal justice equivalent of bread lines formed in 2016 across the state as deep cuts in public defenders' budgets forced cuts to services. The entire system went bust. A person charged with a crime may literally have to take a number and wait to hear from a lawyer. In Orleans Parish, where the public defender must handle over 20,000 cases a year, hundreds of cases have been refused and more people linger on a wait list.21 In the meantime, these people may languish in jail, perhaps for something they did not do, or for minor crimes that should not even result in jail time. Or they may plead guilty to avoid remaining in limbo. Even in the most serious death penalty cases, delays are growing, and where fourteen districts could not keep up with caseloads in 2016, 33 of 44 public defender districts could not keep up with caseloads in 2017. …

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