I've written a few times about the deaths of Far West Water and Sewage Company employees James Gamble, 26, and Gary Lanser, 62, who were suffocated by toxic sewage gases while working on an underground sewer tank on Oct. 24, 2001, in Mesa Del Sol, Arizona.

The company and the company's President Brent Weidman were prosecuted. According to the prosecutors on the case, the violations were so blatant, and it was so obvious that the workers had no idea of the danger inherent in confined spaces, that a criminal prosecution was completely appropriate. The air in the tank had not been tested during the day of the incident, the workers weren’t properly trained and the required safety and rescue procedures weren’t followed. Far West decided to fight the case, at one point arguing that the workers had mysteriously suffered simultaneous heart attacks.

The company was convicted of negligent homicide and aggravated assault last November and fined $1.77 million. Weidman was found guilty by a jury of two counts of negligent homicide and two counts of endangerment last June. Last week he was sentenced:

Superior Court Judge Andrew Gould sentenced Brent H. Weidman to four years of supervised probation for one of the negligent homicide convictions and another four years for one of the aggravated-assault convictions. The sentences will be served concurrently.

Weidman was also sentenced to three years of supervised probation for a second count of negligent homicide and three years of supervised probation for another count of aggravated assault. Those terms will also be served concurrently, and will start after his four-year probation ends.

"I'm pleased it's over and that it came out the way it did," a still-emotional Weidman said in the hallway outside the courtroom moments after the sentence was handed down. "But, it will always be a sore spot in everyone's life. I'm sorry for the families and their loses and sorrow."

The judge also sentenced Weidman, who used to head Far West Water and Sewer Company, to serve 840 hours of community service in which he will teach safety training classes for the Arizona Occupational Safety and Health Administration in Yuma and ordered him to pay a $50,000 fine at the rate of $250 a month which will take Weidman about 17 years to pay off.

Yeah, I'll bet Weidman's pleased. Kills two workers, convicted of negligent homicide and gets sentenced to teaching and the equivalent of a monthly car payment -- fates apparently worse than jail. That should teach American employers not to kill their workers.

I've spend a lot of time in this blog talking about the ineffectiveness of OSHA's penalty system and the need for more criminal prosecutions of employers who kill workers in clear violation of OSHA standards. But if judges are going to hand down non-sentences like this, what's the point?

I am currently reading a book called Working Disasters: The Politics of Recognition and Response. I will review the entire book late, but there's a chapter by Richard Johnstone, Professor of Law at Griffith University in Australia, on "Courts, Crime and Workplace Disaster" that discusses how, throughout history, occupational safety and health offenses were not considered to be "real crime."

Johnstone discusses defense attorney's success in using a variety of defenses or "mitigation techniques" in the sentencing process such as "blameshifting" (subtly blaming the worker), pleas that the employer is a "good corporate citizen" with an otherwise excellent safety record, suggesting that the workers succumbed to a "freak accident," pointing out that the accident was in the "far distant past," whereas the employer has seen the light and corrected the problems, and, finally, "anthropomorphizing the defendendent," in other words, convicting the company as if it were a person, rather the the responsible persons themselves.

As we have seen, some of these tactics were clearly in play, and the judge, in this case, may have fallen for others. In other words, as Johnstone explains, judges

may have difficulty conceiving these offences to be truly criminal; they are susceptible to careless worker and other blameshifting arguments.

While the judge made no statement about his reasoning, it is entirely probable that in his heart of hearts, he felt that Weidman was truly sorry, that he probably wouldn't do it again, that it was (kind of) a freak accident (I mean, it doesn't happen every day), and anyway, why put a nice middle aged man in one of those nasty old prisons with all of those other, uh, disreputable scoundrals?

One more thing. Apparently attempting to make lemonaid out of lemons, Andrea Esquer, press secretary for Arizona Attorney General Terry Goddard, explained to Occupationalhazards.com:

That was really the point of pursuing criminal charges against him....We think [safety training] was one thing that was really needed to help these workers avoid this incident."

Well, no, I don't think training was the point here. No one will dispute the value of a good worker training program, particularly when it comes to the potentially deadly hazards of confined spaces. But training is only one small part of a comprehensive confined space program, which, if isolated from the rest of the program, essentially becomes another version of blaming the worker. Gamble and Lanser were sent by their manager into a confined space without evaulating the hazards, without monitoring the space, and without ensuring a means of rescue. Lack of training was only one part of the crimes.

The law states that the employer is responsible for maintaining safe working conditions. Putting the entire blame on lack of training puts the burden on the employee to confront his managers, risking his job. While risking one's job is clearly preferable to losing one's life, that's not the way the law is supposed to work in this country. After all, if the trained employee doesn't confront his manager, then whose fault is that?

What this makes clear is that we have a lot of work to do -- not just changing the laws, but also developing effective arguments to be presented to juries, as well as judges and the media.

Labels: confined space hazards, Criminal Prosecution