To Err Is Human, Except When It’s A Crime

June 11, 2010 Current Commentary 1 Comment
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Catastrophic accidents often are the product of an “error chain.” The 1986 Challenger explosion began with a faulty O-ring design and ended with a launch in severely cold weather that exposed the design’s defects. The RMS Titanic had too few lifeboats, which became a lethal flaw when its captain ordered full speed through iceberg-filled waters.

In both cases, and in countless others, there were many intervening points at which disaster would have been averted if someone had made a different decision. If you break the error chain, everyone lives happily ever after. Of course, we do not hear about disasters that never happen, so we only become aware of error chains when they proceed to their awful conclusions.

Accident investigators have understood error chains for decades. Every student pilot is taught to try to recognize an error chain before it is too late. Error chains are behind most aviation accidents.

Investigators probing the Gulf of Mexico oil spill have a lot of work ahead of them, but enough information has come out already to make it obvious that an error chain was at work. The well’s pipe design, the quality and testing of the cement work that was supposed to seal out dangerous natural gas, the design and maintenance of the blowout preventer, and the decision to withdraw protective drilling mud before the well was fully sealed all appear to be factors in the explosion of the Deepwater Horizon and the resulting damage: 11 lives lost, millions of gallons of crude polluting the sea and nearby shorelines, and an ongoing battle to bring the mess under control.

If we could eliminate error chains by making them illegal, we might finally have an issue on which politicians of all stripes could agree. But we can’t. People inevitably make mistakes. As long as humans continue to make decisions, error chains are going to happen. We can try to avoid them, and we can try to mitigate the consequences, but we cannot eliminate errors. If it is a crime to make mistakes, all of us are criminals.

We don’t all get hauled into court, however. Prosecutors have vast discretion to decide when to bring a case, and they have near-total immunity if they bring one on weak or even specious grounds. (The extent of that immunity may be spelled out shortly when the U.S. Supreme Court decides Pottawattamie County v. McGhee, in which two men seek redress for spending 25 years in prison after Iowa prosecutors helped frame them for murder.) Prosecutors seeking publicity or political gain are free to try to put people in jail even for honest mistakes.

The most recent case in point is Attorney General Eric Holder’s chest-thumping announcement that the Justice Department is considering criminal charges in the Deepwater Horizon disaster. Such charges may be warranted if it turns out that somebody willfully or recklessly broke the law, but nothing made public thus far gives any hint that this is the case. Holder is proceeding, essentially, on the grounds that the accident itself is evidence of a crime.

It is clearly no accident that Holder’s announcement came just after BP’s attempt to “top kill” the leak had failed, at a moment when public anger was mounting not only against the oil company but also against the federal government and particularly against Holder’s boss, President Obama. Obama has tried to redirect that anger by announcing that he, too, is “enraged at the time it’s taken” to control the leak.

The administration misses the distinction between governing the public and pandering to it. What is the point of being enraged at people who are doing everything they can think of to try to stop or contain the spill? The administration’s approach is that if the public demands scalps, scalps must be obtained.

The timing of all this retribution talk is simply bizarre. If a house is on fire with people trapped inside, who do you send in — the rescue team or the arson investigators?

This is not the first time we have seen this sort of politically inspired prosecution, or threat of prosecution, and this is not the first administration to succumb to such temptation. Last November, I discussed theJustice Department’s failed attempt to prosecute former Bear Stearns hedge fund managers in a case that sought to make them scapegoats for the global credit crisis. There was more than touch of deja-vu in the air this April when it came to light that Holder’s DOJ was investigating Goldman Sachs on criminal charges as well. The Securities and Exchange Commission had decided only on a 3-2 vote to pursue civil charges against Goldman, but this underwhelming case still attracted criminal prosecutors’ attention.

The standards of crime and punishment were inconsistent during the administration of Obama’s predecessor, too. President George W. Bush promised to fire whoever in his government had leaked the fact that Valerie Plame was a CIA agent, and he put criminal prosecutors on the case. But when Lewis “Scooter” Libby, Vice President Cheney’s Chief of Staff, was convicted of lying to investigators, Bush commuted his jail sentence. In fact, the only person to go to jail over the incident — which involved several federal crimes — was New York Times reporter Judith Miller, who refused to reveal her confidential sources to a grand jury. Miller was not even the journalist who blew Plame’s cover.

Holder’s own conduct has not always been above reproach, most notably in connection with President Clinton’s pardon of fugitive financier Marc Rich. Holder has expressed regret for his mistakes, which seems to be good enough. Being a prosecutor means only having to say you’re sorry, and then, only sometimes.

Nobody apologized to the 28,000 workers formerly employed by Arthur Andersen. They lost their jobs after the accounting firm was wrongly convicted of criminal charges stemming from the collapse of Enron Corp. Though the Supreme Court unanimously reversed the conviction won by the Justice Department, vindication came too late for those workers. The mere act of filing those charges was enough to ensure that the accounting firm would not survive. Prosecutors in the Bush administration knew this, but public anger in the wake of Enron needed to be assuaged. Does this sound familiar?

Though not brand new, this tendency to find a crime in every headline-grabbing accident is fairly recent. Nobody went to prison for the sinking of the Titanic, or for the explosion of the Challenger, or for the Three Mile Island accident in 1979 that put the nuclear power industry on ice in this country for 30 years. If those events occurred today, do you think an attorney general would announce an investigation? I think so.

I don’t believe aggressive prosecution can eliminate error chains, but I am sure of one thing: If we start putting people in jail for making mistakes, we’re going to have to build a lot more prisons.


One Response to “To Err Is Human, Except When It’s A Crime”

  1. He that kills a man when he is drunk, shall be hanged when he is sober.

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