Thursday, June 17, 2010
“Ithink it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen.” – Rand Paul, on Good Morning America, speaking about the BP oil spill.
Of all the crazy-ass things Rand Paul has said during his brief, disastrous turn in the national spotlight, this is the most insidious. A week after Paul’s comment, New York Times columnist David Brooks made the same point a touch more artfully, chalking up the disaster to “the bloody crossroads where complex technical systems meet human psychology,” the inevitable result of “living in an imponderably complex technical society.”
Society must have seemed “imponderably complex” to those living through the Triangle Shirtwaist Factory fire, but luckily, activists of the day refused to simply say, “Shit happens” and move on.
The public wants to see BP held accountable, with good reason: Early indications are that the company is guilty of a host of mortal sins – from ignoring repeated internal warnings about its safety procedures to harassing workers who raised safety concerns.
After foot-dragging, the Obama administration finally seems to understand that justice demands an aggressive stance. Attorney General Eric Holder announced that the Justice Department is opening a criminal probe into the accident, which claimed the lives of 11 workers; then the White House came out in favor of a bill that would raise the $75 million liability cap on damages.
But despite the public outrage, there’s a decent chance BP will escape fairly unscathed. The reason is the legal and social shift in how we approach punishment for powerful corporations – a shift that contrasts sharply with the trends in punishment for citizens, particularly those without money or power.
Let’s look at corporate accountability. The state’s regulatory apparatus has, in many areas, been gutted or co-opted, which leaves it primarily to private parties to pursue accountability through the courts. In tort law, damages are divided into two types: compensatory and punitive. The former are designed to compensate victims of negligence for economic damages; punitive damages are awarded above these compensatory costs as a means of, well, punishing the wrongdoer.
In the 1990s, an Alabama doctor sued BMW for having sold him a repainted new car without disclosing the repainting; a jury awarded him $4,000 in compensatory damages and $4 million in punitive damages. The Supreme Court found that punitive damages violated due process, but didn’t specify [other] guidelines.
Which brings us to the 1989 Exxon Valdez disaster. Five years after the spill, an Alaska jury found Exxon guilty of reckless disregard for allowing a drunken sailor to steer its ship. Exxon paid $507 million in compensatory damages, and the jury assessed it $5 billion in punitive damages. In 2008, the Supreme Court invalidated the award, stating that no more than a 1:1 ratio between compensatory damages and punitive damages was allowable.
The arbitrary limits make a mockery of equal justice. Our criminal justice system is the most punitive of any industrialized democracy. We have 2.3 million people incarcerated, half for nonviolent property and drug offenses. At least two dozen states have three-strikes laws, and in some cases citizens can face life imprisonment for minor offenses.
For years we’ve been applying Rand Paul’s “accidents happen” principle to those at the top while heaping blame, scorn and draconian punishment on those at the bottom. This tears the social contract apart. The only way to repair it is to apply the same principles of accountability up and down the social hierarchy. We should start with BP.