NCJ Number
141824
Journal
American Criminal Law Review Volume: 30 Issue: 2 Dated: (Winter 1993) Pages: 373-415
Date Published
1993
Length
43 pages
Annotation
Because the criminal penalties for negligent employers, codified in the Federal Occupational Safety and Health Act (OSHA) are minimal, many States have sought to apply their own more stringent criminal laws. However, the Supreme Court's decision in Gade v. National Solid Wastes Management Association threatens a stricter Federal preemption of State prosecutions.
Abstract
The rationale for holding individual corporate officers criminally liable for violations of workplace safety laws centers around the concepts of deterrence, fairness, and retribution. This article discusses the failure of OSHA in prosecuting employers for safety violations and the success with criminal enforcement exhibited by other Federal bodies, including the Environmental Protection Agency. State and local prosecutors have faced several obstacles in pursuing corporate criminal liability cases, including lack of resources for finance investigations and litigation, political resistance from employers and trade associations, and preemption by OSHA. Prior to the Gade ruling, State courts rejected, in numerous rulings, express preemption logic, implied preemption logic, and conflict preemption logic. This author offers a way of rethinking OSHA preemption of State criminal laws in light of Gade and concludes that States should focus on enforcing their general criminal laws rather than on those laws that specifically govern the workplace. 259 notes