Should Bad Engineers Go to Jail?

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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.