Nothing good comes of criminal prosecutions following air disasters. While such proceedings may satisfy the public’s zeal to punish those responsible, the result is that the flow of information necessary to correct aviation problems dries up over the long term because of the fear that such information will be used for criminal prosecution in the event of accidents.
It is bad enough that manufacturers and airlines now hide what they do, or more importantly what they don’t do, in an effort to escape civil liability for accidents. Criminalization has always been fraught with the specter of witnesses using their Fifth Amendment rights not to incriminate themselves (which has the effect of impeding investigations that might result in safety improvements).
Moreover, public authorities, whether prosecutors or public investigators, do a terrible job at investigating aircraft accidents and are too often the tools of manufacturers and airlines. Plaintiffs’ lawyers do the majority of aircraft accident investigations in the United States and spend far more, examine more intensively and extensively, and take sworn testimony more often to get to the bottom of these accidents. Criminalization will impede, not enhance, these efforts. What we need is more zealous sanctions when airlines and manufacturers hide information from the certifying authorities, distort warnings received from the field and flat out lie during civil proceedings. We need fewer judges who are selected for their promise to deter plaintiffs’ lawsuits; we should go back to hiring judges based on their demonstrated lack of bias and predilection.
This issue has been around for years and is most often discussed in countries where civil litigation does not exist the way it does in the United States. Where there is no suitable vehicle to get to the truth civilly, criminalization is the fall-back position taken out of frustration. The real solution is to expand civil litigation systems in countries that don’t currently have them so that safety is enhanced rather than deterred by the regressive effects of criminalization.
Arthur Alan Wolk
September 9, 2008
