I'm working on an interesting pro bono case involving the crime victims' right to object to a plea agreement in federal court under the Crime Victims Rights Act. It arises out the Texas City Refinery explosion in March 2005, which left 15 dead, hundreds injured, and untold property damage.
Recently the responsible corporation -- BP Products North America -- agreed to pled guilty to a criminal violation of the Clean Air Act. But the plea agreement is a "binding" plea agreement -- that is, the judge would have no discretion in sentencing. The plea agreement obligates BP Products North America to pay a $50 million fine and do essentially nothing more to ensure plant safety than abide by previous agreements with federal and state regulators.
Along with other pro bono lawyers in Texas, I represent some of the victims of the explosion. They would like the judge to reject the plea and send the parties back to the drawing board to negotiate more safety measures and a more appropriate -- and tougher -- penalty.
Today the other lawyers and I filed pleadings in the federal district court in Texas. Our pleadings argue the court should reject the plea because the proposed plea blocks the court from appointing its own independent safety monitor to supervise BP Products' environmental compliance. The pleadings also argue that since the statutory maximum fine in this case (based on the gain to the company or loss to the victims) is more than $2 billion, a substantially larger fine is appropriate.
The larger issue here is what role the fedeal courts will give crime victims in these kidns of issues. Under the new Crime Victims Rights Act, crime victims have the right to "heard" on any proposed plea. On Monday, I will be in Houston helping victims exercise that right.
Related Posts (on one page):
- Fifth Circuit Finds Victims' Rights Violated ... But No Remedy
- Crime Victims' Right to Object to a Plea Agreement:
Very interesting brief, and I appreciate Judge Cassell sharing it.
But somewhere I suspect there is a primary motive for the plaintiffs to the civil suits connected to this. This is merely a way to put the screws to the company via the criminal proceedings so as to leverage your bargaining on the civil side. It is of course the civil side where you make your percentage of what is hoped to be a really big sum.
This is a case of "it's a good start" being a good start.
America the aggrieved.
The only upside to this litigation is that it technically doesn't change anything, because of course the court can object to the plea agreement. So they're just hearing something "at sentencing," I suppose.
But if the problem is that the prosecutor shouldn't be entering into pleas like this, the remedy should be more cohesive - either political or personal - against the prosecutor's office. Not this.
There's also the concern that it will make plea agreements harder to enter into. Defendants have a constitutional right in the enforcement of plea agreements (and non prosecution agreements). They're already forced to defend this right against prosecutors - sometimes unscrupulous ones - who are willing to ignore the defendant's constitutional rights. Now their interest can be attacked by an additional party that's not bound by the agreement? Especially if the defendant has cooperated - generally to his own detriment?
No offense, but I hope you lose. And I hope its published.
Theoretically, BP will not simply be able to pass along its unique costs. The price is already set at the maximum that the market will bear based on supply and demand. (In other words, if BP could get away with rising its prices now, wouldn't they do so just for the sake of additional profits?) So if BP tries to adjust its new cost by raising prices, consumers will just buy their gas at true market prices from other suppliers. At least that's the theory, and I think there is a grain of truth to it. So we shouldn't just jump to the conclusion that huge fines don't hurt businesses.
Plea negotiation is a delicate art. The prosecutor has to consider a number of factors, including the strength of his case, the disparity between the plea sentence and the Guidelines sentence, the judge's sentencing tendencies, the likelihood that his or her case will become less viable as time goes on, etc. A victim may not be in a position to adequately weigh each of those factors, and may not have the relevant information. For example, if a key witness is getting shaky, the prosecution may not want to share that information. Further, if the case goes south the victim may be able to take a second bite at the apple through a civil action, so they may be willing to take bigger risks. A victim may also not appreciate that witnesses disappear, forget, die, or recant as time goes on, and throwing a wrench into the process by deep-sixing a plea may work to the defendant's significant advantage. You could even see a situation where a victim-driven delay weakens the prosecutor's case and leads to an even more defense-friendly plea.
I'm all in favor of victim notification and consultation, as well as allocution opportunities at various phases in the case, but I suspect that litigation on behalf of the victims in criminal cases will do more harm than good to the criminal justice system - such litigation ties up prosecutorial resources and drags cases out (delay more often than not benefits the defense). My instinct is that in many cases, litigation on the part of victims will create a significant risk that those victims will ultimately receive less justice than they otherwise would. There's also the more cynical issue of prosecutorial incentives: ceteris paribus, if a victim is making a prosecutor's life difficult, is the prosecutor more or less motivated to work the case?
I have not considered victims' rights issues in detail and have not delved deeply into the scholarship, so these concerns may have been repeatedly hashed out and resolved, but this is my initial grunt's eye perspective.
Obligatory but probably unnecessary disclaimer: I work for DOJ, but have nothing to do with this case or subject matter. My opinion is my own and does not necessarily reflect the Department's.
If you want to be really harsh, force them to comply with existing standards and procedures and training.
From our discussion last time it seemed that the justification for crime victims having a role in criminal procedings in the first place was either because people thought that the justice system owed them some kind of retribution or because the extent of the suffering inflicted in that particular situation mattered. However, none of these considerations suggest the crime victims should be given any special consideration in terms of new safety measures.
While the whole idea of punishing a company for any reason other than deterrence (the people who are responsible may not even be there anymore) seems fishy maybe you can stretch the above arguments to a justification for the crime victims involvement in the damages question. But safety precautions are a matter of protecting the public in the future. I mean in many cases (maybe not this one) the victims of the last failure are actually particularly unlikely to be affected by any future accident.
So in short why should crime victims have any special standing to talk about the protections that should be created for other people in the future? Should their role their be limited merely to saying how bad it was when it happened last time?
Should the government succeed in a criminal conviction it gets much easier for the victims to win a civil action. Thus if the plea agreement doesn't provide a sufficient base for this civil action then even a very small chance of success in court might make going to trial worthwhile for the victims.
Also I really would like to hear someone explain the purpose of victim input (not just testimony at trial as to how much harm they suffered) when the defendant is a corporation. Most of the justifications for victim involvement seemed to primarily apply to situations in which the defendant was an individual.
If I were representing the non-BP defendants the BP prosecutor is prosecuting, I'd be writing Professor Cassell a thank-you note. You almost always get better deal when the prosecutor is busy with other things. I wonder whether murderers, rapists, drug dealers or all three are getting better deals thanks to Cassell's efforts.
But victims' rights groups do have one good point--for too long too many prosecutors and police treated victims rudely and indifferently. Some defense attorneys have told me they have become some victims' primary source of information just because the prosecutor and police were so tight lipped.
It's possible that the prosecutor accepted this deal because it was concerned about the strength of its case. Now, thanks to Professor Cassell, the prosecutor may be coerced into saying, "the reason this deal is reasonable is that our case has the following weaknesses. . . ."
Defense counsel then might find a reason to take the case to trial. And then every other defendant this prosecutor is prosecuting would have an opening to get a better deal because Cassell has decided that BP case is more important than every other case the prosecutor is handling.
Of course, Cassell is supposed to watch out for the interests of his clients over everyone else's. That's what lawyers do. But prosecutors are supposed to look at society's interests as a whole, and Cassell is distracting the prosecutor from reaching that goal. The other defendants who face that prosecutor, whether they are accused of rape, murderer, or drug dealing, all owe Cassell a debt of gratitude.
Plea Bargaining and Victims: From Consultation to Guidelines
Michael M. O'Hear
It might not actually be published yet, though, I'm not positive. It is (or will be) in the Fall 2007 issue.
A victim's argument to upset a plea agreement can only be on the basis of 1. just emotion or 2. leverage in civil suits. It frankly, Congress's pandering notwithstanding, does not serve any of the primary goals of the criminal justice system. It is just a way to make victims feel better.
There are many, many interests to balance, all in search of the elusive concept of "justice". Victim opinions are an important factor, but by no means the only one and not the decisive one.
The competition for geekiest comment becomes furious.