"I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen."
—Rand Paul, on Good Morning America, speaking about the BP oil spill
Of all the crazy-ass things Rand Paul has said during his brief, disastrous turn in the national spotlight, this is the most insidious. A week after Paul’s comment, David Brooks made the same point a touch more artfully, chalking up the disaster to "the bloody crossroads where complex technical systems meet human psychology," the inevitable result of "living in an imponderably complex technical society."
Society must have seemed "imponderably complex" to those living through the Triangle shirtwaist factory fire, but luckily for us, activists of the day refused to simply say, "Shit happens" and move on.
Pace Paul and Brooks, the public wants to see BP held accountable, and with good reason: early indications are that the company is guilty of a host of mortal sins—from ignoring repeated internal warnings about its safety procedures to harassing workers who raised safety concerns. According to reports from the Guardian and NPR, after the fatal explosion BP sequestered the surviving workers at sea, refusing to let them contact their loved ones, and bullied them into signing forms that indemnified BP for the accident.
After some initial foot-dragging, the Obama administration finally seems to understand that justice demands an aggressive stance. Attorney General Eric Holder announced that the Justice Department is opening a criminal probe into the accident, which claimed the lives of eleven workers; then the White House came out in favor of a bill that would raise the $75 million liability cap on damages from the spill under the Oil Pollution Act of 1990. And, of course, President Obama famously told Matt Lauer that he’s trying to figure out "whose ass to kick."
That’s all well and good. But despite the public outrage at BP and the thirst for justice from the battered residents of the Gulf Coast, there’s a decent chance BP will, like Exxon before it, escape fairly unscathed. The reason is the legal and social shift in how we approach punishment for powerful corporations—a shift that contrasts sharply with the trends in punishment for citizens, particularly those without money or power.
First, let’s look at corporate accountability. Ideally, this is the kind of thing you’d want the government to pursue, but as has been dramatically demonstrated, the state’s regulatory apparatus has, in many areas, been gutted or co-opted. Which leaves it primarily to private parties to pursue accountability through the courts. In tort law, damages are divided into two types: compensatory and punitive. The former are designed to compensate victims of negligence for their economic damages: lost income, property destruction, etc. Punitive damages are awarded above these compensatory costs as a means of, well, punishing the wrongdoer.
For a long time, conservatives and big corporations have hated punitive damages. The amounts are decided by juries, who have a tendency, when faced with stories of corporate malfeasance, to stick it to the bastards. In the 1980s conservatives began a legal assault on punitive damages, in "an effort coordinated very closely with the Chamber of Commerce," says Stanford law professor Jeff Fisher. "The first few fits and starts didn’t work, but they kept hammering away."