The result, however, is that the lines between our regulatory, civil, and criminal justice systems are blurring. Remember that after the ValuJet crash, the NTSB held three parties accountable: SabreTech, ValuJet, and the FAA. Of course the prosecutors could not pursue criminal sanctions against their sister agency—the FAA. Yet one could argue that the FAA was reckless—perhaps criminally so—in failing to mandate smoke detection and fire suppression systems in Class D cargo compartments. But at bottom, it was just a terrible mistake, a poor judgment that cost many lives.
If we are to avoid the perils to aviation safety caused by making every accident a crime scene, we simply must act swiftly and unanimously. If the NTSB and FAA see a real danger going unaddressed, then those in the commercial aviation industry should pull together and fix it.
Finally, criminal sanctions in a post-accident environment distract the industry from learning about new threats to civil aviation. The ValuJet crash was an immediate wake-up call. It triggered increased FAA oversight of repair stations, of new air carriers, and of hazardous materials transportation by any company, whether aviation-related or not. It triggered all types of aviation-related businesses to take a closer look at their procedures. It was the crash itself—not the criminal indictments or any convictions—that sounded the wake-up call. If anything, the criminal sanctions caused aviation companies to spend more time with their lawyers establishing criminal liability action plans, rather than focusing on the goal of making their products and services as safe as possible.
If aviation companies continue to be the targets of criminal investigations, those involved should be granted immunity from prosecution in exchange for their truthful statements. In the SabreTech case, prosecutors used truthful statements made to the NTSB and FAA against SabreTech mechanics and the company itself. The court later rejected our motions to exclude the statements. To mitigate the chilling effect, Congress could enact legislation preventing prosecutors from using truthful statements made to accident investigators. At the moment, neither the NTSB nor the FAA has the authority to grant immunity. Although prosecutors do have the authority to grant immunity, they use it sparingly. They worry that the practice will harm their ability to prosecute future cases.
To them I say: So be it. Aren’t we better off ensuring candor and the admission of mistakes and bad judgment in order to prevent another loss of life than we are putting people behind bars and inviting further tragedy?
Kenneth P. Quinn is a partner in the Washington, D.C. office of the Wall Street-based law firm Winthrop, Stimson, Putnam & Roberts.