Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability

Abstract

On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of life at the Upper Big Branch mine was not an accident. After a twenty-month investigation, the Mine Safety and Health Administration ("MSHA") determined that the workers died because of a methane and coal dust explosion at the Upper Big Branch mine that was "entirely preventable." The MSHA identified over 300 violations of the Mine Safety and Health Act at the Upper Big Branch mine, including nine flagrant violations that contributed to the explosion. Without any of the hedging often found in safety investigations, MSHA concluded that Massey's "unlawful policies and practices... were the root cause" of the Upper Big Branch mine tragedy.