June 8, 2010
By Brian W. Walsh and Robert Alt
As oil continues to pour into the Gulf of Mexico, what the region needs most is the nation’s best experts to plug the well and clean up the mess. It doesn’t need Justice Department prosecutors threatening criminal charges. Yet that’s exactly what it’s getting.
The Obama administration has launched a criminal investigation and may prosecute BP and others for their roles in the Deepwater Horizon oil-rig disaster. At best, this is premature. It is also predictable and disturbing.
Buffeted by accusations that President Obama has failed to take decisive action, his administration is seeking shelter from the real issues raised by the oil spill by playing up to the call to “do something.” After all, there’s nothing like prosecuting someone to show that you are “doing something.”
The catastrophe in the Gulf must be taken seriously, which is why the Justice Department shouldn’t float the idea of criminal punishment unless and until there’s good evidence of actual criminal wrongdoing. The potential civil fines and liability for financial damages alone could be crippling for BP. Dangling the Damocles sword of criminal liability over the heads of those who are now trying to contain the spill only multiplies the difficulties of the tasks they face. It puts the fear of incarceration and personal destruction upon people who, so far as anyone knows, have tried hard to comply with the (often conflicting) requirements of the thousands of federal laws, rules, and regulations that govern oil exploration.
As the Wall Street Journal reported recently, Attorney General Eric Holder “declined to specify the target of the investigation because he said authorities aren’t ‘clear on who should ultimately be held liable.’”
This is criminal prosecution as fishing expedition — scouring the federal code to find anything that might possibly work to provide criminal penalties. That’s counterproductive to the number-one priority, which must be stopping and containing the oil spill. Announcing criminal investigations to score political points or stave off political damage is an abuse of one of the most awesome powers of the state, the power to deprive an individual of his or her personal liberty.
It’s possible that criminal wrongdoing occurred, but the current approach — one that all but announces that criminal charges will be brought and then seeks to identify the crime and decide who will be designated as the criminal — undermines the criminal-justice system and Americans’ respect for the law. Whenever high-ranking law-enforcement officials select their targets in this manner, it evokes disturbing echoes of a statement Harvard law professor Alan Dershowitz has attributed to the head of Stalin’s secret police, Lavrenti Beria: “Show me the man, and I’ll find you the crime.”
Ironically, Obama has previously mocked elected officials for using criminal penalties for political gain. “We used to have a joke,” then-senator Obama said when reflecting on his days in the Illinois state legislature in a 2006 interview with the New York Times. “Let’s say the offense was that defacing property was a Class C misdemeanor, or a Class A misdemeanor. Suddenly somebody would jack it up to a Class 2 felony. And it was always before election time. And we’d say, ‘You know it’s not a good idea to leap all the way to the maximum penalty, because you’ll have nothing to come back with in the next election.’ You know, you want to take it in stages.”
No elected official should treat his authority over criminal law and punishment as a joke or abuse it for political benefit.
The Heritage Foundation recently published a book documenting the problems and causes of overcriminalization. One Nation under Arrest explains how these thousands of federal criminal laws can trap honest, hard-working Americans. In many cases, people who were trying to be respectable, law-abiding citizens have been targeted for prosecution and spent time in federal prison.
It’s easy to heap scorn upon an oil company whose operations are causing serious damage to our Gulf Coast. But the American government shouldn’t seek criminal punishment unless there’s solid evidence that someone violated a criminal law and did so in an intentional fashion.
Robert Alt is senior legal fellow and Brian Walsh is senior legal research fellow in the Heritage Foundation’s Center for Legal and Judicial Studies.
First appeared in National Review Online
Brian W. Walsh
Senior Legal Research Fellow
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