By and large, most engineers do their jobs well
enough to stay employed, and their actions are a net benefit to the firms that
pay them, and hopefully society at large.
But every so often, things go wrong, and someone is hurt or killed in
connection with an engineered product or service. What should be the consequences for engineers and managers
if wrongdoing—intentional or otherwise—can be traced to their actions, or
irresponsible inactions? In other
words, should bad engineers go to jail?
Jail is for criminals who have been duly prosecuted
and convicted of a violation of criminal law. Or at least I used to think so, until I read an article
entitled "Limited Liability" in a recent issue of The New Yorker. In it I saw an amazing statistic: only one out of twenty U. S. criminal
cases in both state and federal courts nowadays actually go to trial. The other nineteen or so are resolved
in plea bargains.
A plea bargain is a deal arranged between a defendant's
lawyers and the prosecuting lawyers.
Except in unusual cases in which one defendant gets immunity from
prosecution in exchange for ratting on other defendants, few defendants get out
of a plea bargain scot-free. And
the same article informs me that the outcome of a plea bargain depends a lot on
the social and legal status of the defendant.
If you're a white-collar criminal, and this would
include engineers and the corporations they typically work for, it has become
almost unheard of for any jail time to be served. Instead, the typical outcome is what's called "deferred
prosecution." Instead of
formally charging a corporation with a crime, prosecutors investigating
corporate wrongdoing will make a deferred-prosecution agreement in which the
company acknowledges it did something wrong, pays a fine, and promises not to
do it again. But some companies
have gone through this wrist-slapping process two or three times for the same
type of misbehavior, and increasingly look at the fines as simply a cost of
doing business.
On the other hand, if you're a low-level drug dealer,
or user, or even an impoverished innocent bystander to a crime who was arrested
by mistake, your chances of going before a jury of your peers and a judge who
can declare you innocent before the law are vanishingly small. Instead, you will probably be offered
some kind of plea bargain, and the less well off you are, the more likely the
"bargain" will involve jail time. The article quotes a federal judge who said in 2014 that for
most Americans, the Sixth Amendment right to a trial by jury is now a
"myth."
Curiously, the exception to this rule of relative
immunity from prosecution for engineers seems to be if you get involved in
espionage or illegal transfer of classified information, especially to
China. A few years back, I
described the sad but avoidable case of University of Tennessee professor J.
Reece Roth, who was convicted in 2010 of giving restricted military information
about aerospace research to China.
And googling "Engineer Goes to Jail" turned up the case of a
former Northrup Grumman engineer named Noshir Gowadia, who in January of 2011
was sentenced to 32 years in prison for selling defense secrets to China.
Engineers in the U. S. generally do not have to be
licensed to practice engineering, and so the threat of losing one's license for
malpractice does not exist, as it does in some other countries. Nevertheless, there are federal and
state laws that engineers in many professions must be aware of in order to
practice their profession, well, professionally. And most of the time, most engineers stay well clear of any
criminal violations.
But it's disheartening somehow to discover that the
old retort engineers would give to a ridiculously irresponsible proposal,
namely, "You could go to jail for that!" is not as true as it once
was. It seems that unless you
committed a very specific type of crime—namely selling or giving defense
secrets to China—that engineers (at least those working for corporations, which
is most of us) don't have to worry much about going to jail.
One reason for this is the long history of legally
limited liability that has been granted to corporations by the legal
system. One of the main reasons
for forming a corporation is that one's liability, in case the corporation gets
sued, is limited to the extent of the money you have put into the
corporation. By contrast, if you
are operating in the business world as a sole proprietor or as part of a
partnership, a lawsuit can not only bankrupt your business, it can bankrupt you
personally. This hazard
discouraged people from buying stock in publicly traded companies until the
mid-1800s, when laws limiting the liability of stockholders were enacted.
Most engineering ethics violations that wind up in
the legal system are civil suits rather than criminal prosecutions, and the
rules are different for civil and criminal cases. Being sued is no picnic either, and those who have had
involuntary dealings with the legal system can testify that even if you win a
lawsuit as a defendant, the experience can be harrowing, draining, and
expensive. Again, because most
engineers work in a corporate environment, they are protected in most cases
from immediate personal involvement when a company is sued, but their actions
may be critical to the outcome of a civil trial or settlement.
It's rare for an engineer to be found criminally
negligent as a result of an accident such as the one that happened last week at
the Ohio State Fair. A young man
named Tyler Jarrell, who had signed up for the U. S. Marine Corps only a few
days earlier, took his date to the fair.
They got on a ride called the Fire Ball, in which riders are seated in
open-air seats under a protective frame and then swung and spun high in the
air. Something went wrong and
several people were flung out of the ride. Jarrell flew fifty feet to his death, and several others
were injured seriously.
KMG, the Dutch company who made the ride, ordered all
operators of that type of ride to shut them down until the cause of the
accident is ascertained. That may
take a while. But already the
chain of possible responsibility is complicated: the man who was operating the ride, the Ohio state
inspectors who observed the ride being assembled and certified it as safe,
Amusements of America (the New Jersey firm who owned and provided the ride),
and KMG. Forensic engineers will
try to find out what other engineers did wrong, if anything, to contribute to
this sad mishap. But with
responsibility potentially spread among so many actors and organizations, the
likelihood that anyone will go to jail as a result is small.
Maybe that's a bad thing, or maybe it's a good
thing. But anyway, it's a fact in
today's United States.
Sources: The New
Yorker for July 31, 2017 carried "Limited Liability" by Patrick
Radden Keefe on pp. 28-33. I
referred to online reports from Cleveland.com at http://www.cleveland.com/open/index.ssf/2017/07/post_65.html
and http://www.cleveland.com/open/index.ssf/2017/07/the_ohio_state_fair_fire_ball.html. The conviction of Gowadia was reported
by CNN in 2011 at http://www.cnn.com/2011/CRIME/01/25/hawaii.spy.sentenced/index.html,
and I described the Roth case in 2010 at http://engineeringethicsblog.blogspot.com/2010/09/mixing-academia-and-military-secrets.html.
Note added Aug. 7, 2017: At least one person at VW has actually gone to jail for what the media is
calling Dieselgate. The site
https://jalopnik.com/vw-exec-pleads-guilty-faces-up-to-seven-years-in-jail-1797552831
on Aug. 5, 2017 reported that Oliver Schmidt, former
head of U. S. regulatory compliance, pled guilty in a plea bargain to a charge
of defrauding the U. S. and violating the Clean Air Act and will pay a fine of
between $40,000 and $400,000, spend up to seven years in jail (where he is
now), and be deported back to his native Germany after that. Although technically he's a manager,
not an engineer, Schmidt probably has an engineering background and was in a
position of responsibility. So
sometimes engineering managers do go
to jail.