‘Hardly criminals?’

Gazette editorial: ‘Hardly criminals?’

We are accustomed to saying, “Thank goodness for the feds,” who are too frequently the only ones in West Virginia with the skills, budget or gumption to pursue justice. So what is going on with federal prosecutors in the case of the former Freedom Industries executives?

The U.S. Attorney’s office under former leader Booth Goodwin took the unusual and welcome step of prosecuting Freedom Industries leaders after their criminal behavior poisoned the water of 300,000 people. The January 2014 chemical spew into the Elk River sent people to emergency rooms, closed schools and businesses and kept people understandably wary of their water for months.

Now it’s sentencing time, and federal prosecutors are backing off, advocating light sentences to the judge. What’s going on?

Is this because Goodwin is gone, having resigned to run for governor? Was he the only one pursuing justice, and everyone else is just a case processor? Is it because Goodwin presided over a plea agreement that let all the violators plead to misdemeanor charges with lighter penalties than felony charges would have brought?

U.S. District Judge Thomas E. Johnston, with the blessing of the U.S. Attorney’s Office, sentenced former Freedom co-owner Charles Herzing, former company environmental manager Robert Reynolds and former plant manager Michael Burdette to probation and fines.

Interestingly, the only felony in the plea deal is for the company, and you can’t send a company to jail. The judge fined the company, too, knowing it is bankrupt and not going to pay it.

The human beings involved pleaded guilty to misdemeanor charges. How can the company be guilty of a felony — a knowing violation of a Clean Water Act permit condition — without at least one of the people in the company being guilty of a felony?

Both former presidents Gary Southern and Dennis Farrell, whose sentencing hearings come up soon, pleaded guilty to a negligent violation of a permit condition, a misdemeanor charge with a maximum penalty of a year in prison. A knowing violation, the felony charge, has a maximum sentence of three years. Prosecutors did finally recommend jail time for Farrell last week.

Three times now Judge Johnston has looked at one of these environmental lawbreakers and said he is “hardly a criminal.” Hardly criminals? Really? Criminals are precisely what they are.

But federal prosecutors sit by and don’t object to the judge’s characterization.

Prosecutors cited cooperation among three of these former employees to justify lighter sentences, although in one case they questioned whether the cooperation was complete. In any case, cooperating with prosecutors does not excuse a person from paying a penalty. And sentences serve another purpose — deterring other lawbreakers.

Although federal prosecutors have been unwilling to display them in court, these crimes had victims.

Will the people who hauled water and replaced appliances and lost income and worried about their kids and rinsed out their red and burning eyes with bottled water believe justice was done if no one responsible for this damage goes to jail?