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The Real Crime Is What’s Not Done

The of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.

Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.

Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year . Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.

Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory in state history. While on its deregulatory binge last year, the state almost entirely aboveground chemical-tank safety standards enacted in response to the Elk River contamination of 2014 – which made the water of 300,000 people undrinkable.

Prosecution and regulation are not mutually exclusive, but political energy and media attention are disproportionately expended by the lust for criminal punishment. Food safety is not assured by punishments like the 28-year handed down last year to Stewart Parnell, former chief executive of the Peanut Corporation of America, for the lethal 2008 salmonella outbreak stemming from his company’s contaminated warehouses. But the outbreak could have been prevented altogether if the company hadn’t been allowed to use a dodgy private inspection system. New Food and Drug Administration regulations under the Food Safety Modernization Act might be a potent safeguard against outbreaks if the rules can survive business-group lobbying and if the agency’s enforcement budget is adequate, unlike that of the Securities and Exchange Commission, which is getting as the Dodd-Frank Act expands its regulatory authority.

Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now to its $1.5 million annual budget.

A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.

“Every mine safety regulation we have was written in blood,” said , the minority whip in the West Virginia House of Delegates and a vice president of the United Mine Workers of America, who worked 20 years in his state’s coal fields. “These regulations would never have passed if some miner hadn’t died, and for the government to take them away is a slap in the face.”

With regulatory structures in willful disrepair, the corporate world has become one more sphere colonized by the police and prosecutors. But even as progressives have begun to question the overuse of criminal law elsewhere, its encroachments into the white-collar world are generally cheered: Finally, a chance to stick it to “crime in the suites”!

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Criminal law, however, turns out to be a lot better at catching the small, sad fish of middle management than the sharks of industry and finance. Go to the F.B.I.’s “most wanted” for white-collar crime and what leaps out is how many on the list are nonwhite and how petty their swindles are.

As for the Flint charges — nine officials face them now — no one can doubt that they shine a helpful media spotlight on Michigan’s attorney general, Bill Schuette, a Republican with a widely reported eye on the governor’s mansion in 2018. Nothing in Mr. Schuette’s in politics indicates that he would try to resolve the infrastructural crisis of Flint and Michigan’s with major public investment in infrastructure and a regulatory framework. That would take courage in today’s climate of neoliberal austerity. On the other hand, Mr. Schuette is brave enough to go after a handful of low-to-mid-level state officials.

The injustice of the Flint contamination and other safety disasters demand a meaningful response. Criminal law is not the right tool for the job.