NCJ Number
59263
Journal
Criminal Law Bulletin Volume: 15 Issue: 4 Dated: (JULY/AUGUST 1979) Pages: 322-345
Date Published
1979
Length
24 pages
Annotation
THE ELEMENTS NECESSARY TO CRIMINAL CONVICTION AS SPECIFIED BY SECTION 666(E) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) ARE ANALYZED IN THIS ARTICLE, AND SUGGESTIONS FOR STRENGTHENING THE SECTION ARE GIVEN.
Abstract
FIVE ELEMENTS ARE NECESSARY TO OBTAIN A CONVICTION UNDER SECTION 666(2): THE EVIDENCE MUST SHOW THAT THE ACCUSED IS (1) AND EMPLOYER WHO HAS (2) WILLFULLY VIOLATED (3) ANY STANDARD, RULE, OR ORDER PROMULGATED OR ANY REGULATION PRESCRIBED, AND THAT (4) THAT VIOLATION CAUSED DEATH TO (5) ANY EMPLOYEE. THE WEAKNESSES OF EACH OF THESE ELEMENTS CAN BE SEEN IN THE FOLLOWING OBSERVATIONS. IN THE FIRST ELEMENT, BECAUSE INEQUALITY MAY RESULT AS CORPORATE EMPLOYERS MAY BE ABLE TO ABSORB PENALTIES QUITE EASILY, WHILE SMALL EMPLOYERS MAY BE RUINED, THERE IS THE NEED TO EXAMINE THE RESPONSIBILITY OF AGENTS OR OFFICERS IN THE CASE OF CORPORATIONS. WITH REGARD TO THE SECOND CRIMINAL ELEMENT, A STRONG DEFINITION OF 'WILLFULLY', OR 'KNOWINGLY' HAS NOT YET BEEN FORMULATED, BUT IS NEEDED TO HELP FOCUS THE JURY'S ATTENTION ON THE CORRECT STATE OF MIND NECESSARY FOR CONVICTION. THE THIRD ELEMENT AVOIDS DIFFICULTIES INHERENT IN ANY ATTEMPT TO PROSECUTE UNDER THE GENERAL DUTY CLAUSE; HOWEVER, SITUATIONS CAN ARISE WHERE A REGULATION OR STANDARD NOT PROPERLY PROMULGATED WILL BECOME ULTRA VIRES AND THE PROCEDURAL DEFECTS MAY BE SUBJECT TO COLLATERAL ATTACK IN A CRIMINAL PROSECUTION WHERE THE INVALID REGULATION OR STANDARD IS THE BASIS OF THE CHARGES. THE FOURTH ELEMENT CAN BE PROVIDED FOR BY THE SUBSTANTIAL FACTOR TEST WHICH PROVIDES THAT A DEFENDANT'S ACTIONS NEED NOT BE THE SOLE OR PRIMARY CAUSE OF INJURY BUT NEED ONLY BE A SUBSTANTIAL CAUSE OF THE INJURY TO BE CONSIDERED THE PROXIMATE CAUSE. IN THE FIFTH ELEMENT, THE COURTS NEED TO RECOGNIZE THE BROADER IMPLICATIONS OF THE USE OF 'ANY' EMPLOYEE AND PROTECT EMPLOYERS FROM CRIMINAL RESPONSIBILITY IN UNRELATED CASES. APART FROM REPEALING SECTION 666(E) ALTOGETHER BECAUSE OF THESE VARIOUS PROBLEMS, TWO RECOMMENDATIONS CAN BE MADE: CORPORATE OFFICERS AND AGENTS SHOULD BE PROSECUTED FOR CRIMINAL RESPONSIBILITY UNDER OSHA, AND PROTECTED ONLY BY THE REQUIREMENT THAT THE VIOLATION BE PROVED WILLFUL; AND THE PENALTY FOR THE FIRST AND SUBSEQUENT OFFENSES SHOULD BE MADE STIFFER SO THAT A MAXIMUM MONEY PENALTY MIGHT BE USED FOR LARGE CORPORATIONS, INCREASING THE IMPACT ON THEM, AND EQUALIZING THE BURDEN OF THE SMALL EMPLOYER. CASE STUDIES AND REFERENCES SUPPLEMENT THE TEXT. (MHP)