When I served as Counselor to the Secretary of Transportation and later as Federal Aviation Administration Chief Counsel in the Bush administration, I was faced with several airline tragedies: a microburst that knocked Delta Flight 191 out of the sky over Dallas, Texas, the USAir/SkyWest controller error at Los Angeles International that resulted in a runway collision, the crash landing of United 232 in Sioux City, Iowa, and the downing of Pan Am 103 by a terrorist bomb.
Pan Am 103 triggered a massive criminal investigation, which everyone hopes will result in the culprits being brought to justice. Unfortunately, the criminal investigation that was so warranted in the terrorist attack on Pan Am has become all too commonplace in today’s investigation of airline accidents. Criminal investigations and sanctions in the wake of a major aircraft accident should be reserved for deliberate acts of sabotage. The current criminalization of aviation accidents is not in anyone’s best interest.
I reject the notion that criminalizing accidents is necessary for deterrence. Aviation companies and individuals already have abundant ways to deter bad acts. They are in the safety business. Flight crews risk their own lives every day in the flight deck. While they ordinarily exercise great judgment, one lapse of judgment, like failing to declare an emergency or failing to get the airplane down when lights go off or smoke appears in the cockpit, can lead to tragedy. A black mark on your safety record, even undeserved, can have a devastating impact on careers and businesses. Just ask Alaska Airlines, USAirways, ValuJet/AirTran, and the former Pan Am about the millions in uninsured expenses and lost bookings that tragedies have cost them.
Obviously, most of us do not want to harm another person. And most of us want to stay in business, remain employed, avoid large civil fines, and retain the certificates granted by the Department of Transportation and the FAA that authorize us to operate in this industry.
Absent deliberate sabotage, an aircraft accident should not be criminalized because criminalization of aviation serves no useful purpose. Traditionally, criminal punishment is meant to both deter and punish. In the case of an aviation accident, however, the accident itself is its own punishment to the individuals and companies involved. I have represented on many fronts SabreTech, the maintenance company employed by ValuJet when its DC-9 dove into the Florida Everglades on May 11, 1996. Does anyone doubt SabreTech learned a painful lesson? The company paid over $14 million in uninsured expenses relating to the accident, and it is still vulnerable to additional claims. Harsh, unrelenting media coverage following the accident helped put the company out of business first in Miami, then in Orlando, and finally at its flagship facility in Phoenix. Thousands of jobs were lost. It went from being the third largest independent repair station in the country with decent profits, to being over $24 million in the red today. Even though its former maintenance workers were acquitted on all charges and the company was acquitted on two-thirds of the federal criminal charges brought against it, both the individuals and the company were devastated.
Based on my experience, guilty pleas and convictions are not victories for prosecutors or the traveling public. Some companies must opt for a guilty plea just to avoid the business damage and prolonged media scrutiny associated with a grand jury investigation, indictment, and trial. In this highly competitive industry, where a pristine safety record is crucial to success, no company wants to be branded in the news as potentially unsafe. And customers are understandably reluctant to continue to do business with a tainted company. In SabreTech’s case, customers were upset to see their own aircraft showing up on the evening news. Even the most loyal customers are likely to leave companies accused of wrongdoing, simply for liability reasons.
In short, companies may be inclined to plead guilty. After all, prosecutors can get grand juries to indict a ham sandwich.
Perhaps not surprisingly, when individuals and company officials are aware of the possibility of criminal sanctions, they may refuse to cooperate with National Transportation Safety Board investigators by asserting their Fifth Amendment privilege against self-incrimination. Any reluctance to cooperate undermines the NTSB’s ability to learn about a problem and prevent its recurrence. Flight crews, mechanics, manufacturers, and other witnesses are understandably afraid to share what they know for fear of prosecution. This in turn undermines the safety of the aviation system.
In my view, we need to encourage a climate of cooperation and candor so people will come forward and admit bad judgment and mistakes, enabling us to find out what really happened and prevent a reoccurrence. We best honor the victims of tragedy by making sure it won’t happen again, not by seeking jail time or huge criminal fines for individuals or companies that have to spend the rest of their days (which may be numbered) haunted by the fact that something they did or did not do contributed to the loss of lives.
To some extent, perhaps we’re all to blame for the current erosion of confidence in the FAA. Despite the agency’s enforcement role, prosecutors and victims’ families seem unwilling to place their trust and confidence in the organization. Working with the FAA, we should do more to embrace change and arrive quickly at consensus improvements. All too often, we get bogged down in parochial disputes (whose ox is getting gored on a particular rulemaking proposal), which impede progress. We need to ensure that rule changes and new business practices take effect in days and weeks, not months and years. Perhaps, just perhaps, through discord and myopia, we have inadvertently encouraged the criminalization of aviation accidents.
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.