- The Washington Times - Tuesday, October 3, 2000

There ought to be a law against the cavalierness of Ford Motor and Bridgestone/Firestone executives toward vehicle or tire safety. Approximately 200 deaths testify to the urgency of the congressional enterprise.

What better way than to bring in criminal artillery to prevent a second edition? After all, the knowledge that a corporate officer may be hung in a fortnight for permitting unsafe vehicles or tires on the road will concentrate his mind wonderfully, to paraphrase British sage Sam Johnson.

That is the impassioned theme of criminal liability provisions championed by the chairman of the Senate Committee on Commerce, Science, and Transportation, John McCain, Arizona Republican, and unanimously approved in committee on Sept. 20 (S 3059). But what electrifies our retributive instincts may obstruct highway safety and minimization of traffic fatalities caused by manufacturing defects achieved through Mercury-footed identification and recall of dangerous vehicles. Mr. McCain's new crimes, despite their benign inspiration, may be worse than the Ford Motor, Bridgestone/ Firestone corporate disease.

Generally speaking, the McCain bill would stiffly punish corporate executives or agents who knowingly permit the distribution of motor vehicles or equipment deficient under Transportation Department federal motor vehicle safety standards. Also criminalized would be bad faith failure to notify with alacrity the transportation secretary, car owners, or dealers of defective vehicles or equipment. Both crimes would require proof that the violations threatened death or grievous bodily harm.

Intuition suggests that the in terrorem effect of the proposed crimes will heighten the alertness of corporate officialdom to motor vehicle and highway safety. No flawed vehicle will make it onto the roads, or, if it does, detection and removal will be swift and sure. Traffic deaths will tumble. And everyone will celebrate the beneficence of the new punishments.

But put yourself in the shoes of an executive at a motor vehicle or tire company. Criminal exposure comes only if you "knew" cars or tires were defective when introduced on the highways. Might you not become less rather than more scrupulous in overseeing employees on the factory floor in order to build a criminal defense of ignorance if a dangerous defect later turns up? How eager would you be to report expeditiously to corporate superiors or government safety officials inchoate suspicions of flaws which, if true and voluntarily reported, might prevent fatalities? Wouldn't such cooperation invite the now legendary accusatory interrogation, "What did you know and when did you know it?" Wouldn't you worry about the time-honored maxim in D.C. that "no good deed ever goes unpunished," and thus fear entrapment in a costly legal quagmire that would be risked if you employed aggressive quality control supervision over manufacturing and devoted unflagging day-to-day attention and analysis to customer complaints?

In sum, the McCain criminal liability provisions may encourage corporate executives to distance themselves from vehicle or tire safety and to embrace Fifth Amendment silence and non-cooperation with government authorities. Even if convinced they would never knowingly subject auto customers to a substantial risk of death, they could not trust prosecutors and juries aroused by public fury over highway deaths and sympathy for bereaving families to accept their testimonies. Moreover, even a criminal investigation, simpliciter, could expose corporate suspects or witnesses to exorbitant legal fees and life-time stigmas, as the independent counsel's Monicagate ordeal demonstrated.

To make criminal violations of federal vehicle standards might thus unwittingly throw a spanner into the prompt discovery, reporting and recall of dangerous cars or tires. The grim result would be deaths that might otherwise have been prevented. This case against the proposed crimes, however, is not free from doubt.

Proponents might urge that car and tire company executives will remain scrupulously attentive to quality controls in manufacturing despite criminal liability because of the colossal financial losses occasioned by selling life-threatening defective merchandise: recalls, replacements, lost customer good will, tort liability, and civil fines. The specter of corporate bankruptcy and will concentrate their minds on safety even at the risk of individual criminal hangings.

But if that is true, the proposed new regulatory crimes are superfluous to highway safety and corporate executive quality control vigilance. Civil remedies are already up to the task.

The new federal crimes, nevertheless, would add a measure of emotionally or psychologically satisfying retribution. But the price would be creation of a non-trivial danger of flagging corporate alertness to highway safety and resistance to voluntary recalls and confessions of manufacturing defects.

Every state, moreover, sternly punishes intentional or reckless conduct of any type that seriously endangers life or causes death. For instance, disengaging the steering wheel of a car intending to cause a lethal highway accident would be prosecuted as first-degree murder under state criminal codes. Ditto for intentional or reckless indifference of corporate executives to life-threatening defects in their merchandise, whether known at the time of sale or discovered later.

The new crimes Mr. McCain is saluting in S 3059, therefore, may occasion preventable highway dangers yet promise virtually nothing good. Shouldn't that justify their recall from the bill?

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