The oil spill is on the minds of many Americans, in part due to the fact that it is featured nightly on prime-time news programs. Many of the questions being asked are about what BP is doing to clean up the mess, when the problem will be solved, and how bad the damage is going to become. But one of the major topics is whether BP will face criminal sanctions for the damage they have done to the Gulf of Mexico and the Gulf Coast. The most simple answer is “maybe.”
BP could face criminal charges under three different federal laws: The Refuse Act, The Migratory Bird Treaty, and the Clean Water Act. The first two are “strict liability” crimes, meaning that BP didn’t have to have any intent to commit the crime; just the fact that it happened is enough for charges to be raised. However, because the standard for intent is so low in strict liability crimes, the punishment is also usually relatively small. The Clean Water Act requires proof that BP acted negligently, or that BP did not take the proper care in drilling the oil wells. This is still a fairly low burden of proof for a prosecutor to handle.
The thing to note about these crimes is that they are all misdemeanors, with correspondingly low sentences. In order for the violation of the Clean Water Act to be considered a felony, it must be proven that BP acted knowingly. This is still not a huge burden of proof; it simply requires proof that BP knew that their pumps were below regulation standards. The Houston Chronicle reports that this would be a difficult charge unless the prosecutor could bring actual evidence that BP had actively deceived safety officials.
One vision that most Americans would like to see is BP’s CEO Tony Hayworth in handcuffs, being led into prison. And while these environmental violations would impose prison sentences, Lawrence Goldman, a former president of the National Association of Criminal Defense Lawyers, in an interview with CNN, warns people tracking the news of the oil spill not to hold their breaths. Chances are, Tony Hayworth will remain free, and some unlucky mid-level employees will take the fall for the company at large.
The true precedent in this situation is, of course, the Exxon Valdez case. The difference is that in that case, the captain of the boat was intoxicated and Exxon knew he had a drinking problem. And even then, when the company was sanctioned for $150 million, the government eventually forgave $125 million. So it is possible that BP will not even receive heavy sanctions for its pollution. On the other hand, the damage to the gulf is far worse than the damage to the Alaskan shoreline was.
And one more thing going against BP? Tony Hayworth’s behavior in his July 17th Congressional hearing. According to the Washington Post, he evaded most of the questions with a reported 55 “I don’ts”, 42 “I’m nots”, and 28 “I can’ts.” Perhaps there’s hope for BP to face some sort of formal criminal charges after all.