Monday, June 29, 2020

When Does a Worker’s Death Become Murder? Unjust if simply satisfied with compensation for victims?

A preventable and/or predictable death of a worker must lead to criminal prosecution of the employer or persons responsible for Murder, Culpable Homicide or other killing offences. A monetary compensation for the victim alone, without criminal liability for the perpetrators is not Justice. 

When Does a Worker’s Death Become Murder? 
April 2000, Vol. 90, No. 4 

In 1983, Stefan Golab, a 59-year-old Polish émigré working at the Film Recovery Systems plant outside Chicago, collapsed and died after inhaling cyanide gas producedin the chemical leaching of silver from usedfilm. The Cook County medical examiner termed his death a homicide following an investigation that revealed that neither Golabnor his mainly Polish-speaking coworkers had been provided with adequate protection from the gas or properly warned of the dan-gers of cyanide. In the course of the investigation into the death, it was discovered that under orders from the plant managers, the skull-and-crossbones warnings on the side of the cyanide gas container had been scraped off the barrels containing the chemicals used to create the toxic mixture. The company had already been subjected to numerous fines for code violations found by state and federal safety and health inspectors. Furthermore,sick and vomiting workers were a common sight around the plant, undercutting company officials’ claim that they did not know that the fumes surrounding the workers day in and day out were dangerous.1–3

 In news that made headlines around the nation, the Cook County district attorney brought the case to the grand jury, which indicted 5 company executives for murder in1985. In 1993, after 8 years of overturned decisions and appeals, 3 managers were finally sentenced for manslaughter to up to3 years in jail; another escaped prosecution when the governor of Utah refused to extradite him to Illinois.1–3 

The Film Recovery case was particularly troubling for lawyers and the press. It was a precedent-setting decision: criminal law had never before “imposed a duty upon corporate managers to provide employees with a safe workplace.”4It also was the first time corporate executives had been convicted for maintaining unhealthful and dangerous conditions in a plant. Murder, the willful act of an individual resulting in the death of another, had always been difficult to ascribe to factory owners, much less a corporation.Legally, it was traditionally held that a corporation had no “mind” and therefore could not be prosecuted for willful intent, and, further,that it had no “body” and could not be subjected to imprisonment. At best, as in the1977 case of Pyro Products, a fireworks concern in Massachusetts, criminal prosecutions were limited to involuntary manslaughter charges, for which the burden of proof is considerably lower than for a murder charge. Manslaughter is defined as “an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probably harmful consequences to another as to amount to wanton or reckless conduct.”4

 In a number of law review articles that appeared in subsequent years, authors continued to comment on the implications of the judge’s decision in the Film Recovery case.5–9In the lay literature as well, newspaper after newspaper remarked on the significance of the case,10–12which spurred many to express fear that the number of prosecutions would rise in dangerous trades such as mining, construction, and chemical works.13 

While the Film Recovery case was the first to result in a conviction, it was just one of a number of manslaughter and murder indictments that were brought to court in the1980s and 1990s. In fact, the number of manslaughter and murder charges brought against corporations and their executives has been growing since the late 1970s, when executives at the Warner-Lambert company were brought to trial after a vat exploded,killing a worker in the company’s LongIsland City, NY, bubble-gum factory. In the1980s and 1990s, manslaughter and murder charges were brought against corporations and owners of construction companies,demolition companies, mining companies,chemical manufacturers, waste disposal corporations, electrical manufacturing corporations, maritime terminal operators, the Morton Salt Company, automobile manufacturers,air-bag manufacturers, the director and producers of the film The Twilight Zone,and others.14–27

In 1985, the Los Angeles district attorney established a team of prosecutors dedicated to investigating and prosecuting criminal charges against corporations in cases of wrongful death.28,29In 1988, the Justice Department ruled that “employers whose workers are killed or injured on the job can
be prosecuted for murder, manslaughter, or assault under state law and cannot seek refuge under Federal laws on workplace safety.”30In 1991, a fire that killed 25 people and injured 56 in a chicken processing plant in Hamlet, NC, led to the indictment of 3officials who were accused, among other things, of having locked these employees in the plant. One plant owner was sentenced to a20-year term in prison.31–33Recently, a superior court judge in Oakland, Calif, sentenced the owner of a chrome plating company to16 months in jail and fined him $500 000 for instructing an employee to crawl through an entry hole and clean sludge from the bottom of a tank filled with acids and cyanide—an act that led to the deaths of 2 workers.34,35 

The movement of job-related injuries and deaths into the criminal courts, where district attorneys prosecute corporation heads and managers for manslaughter and murder,is still unusual enough to be newsworthy. In1984 Business Week published a review article titled “Why More Corporations May Be Charged with Manslaughter.”36In 1985, the New York Times commented on the viability of manslaughter and murder charges brought against corporations. “For years, the courts rejected the notion that a corporation could be charged with a crime,” opined the newspaper. “But the idea of corporate ‘personhood’ stopped short of murder.”37More recently,the Wall Street Journal expressed concern about the “growing number of employers . . .being charged with manslaughter, reckless homicide, and assault” and the fact that“prosecutors in 14 states in recent years have sought jail time for employers, sending at least 12 to jail in the 1990s.”38 

Traditionally, a worker’s injury or death has been addressed in the civil courts, where workers have sued for damages, or through the workers’ compensation system, where workers or their families have gained modest, if relatively secure, compensation in exchange for giving up their rights to sue companies for damages. While it is premature to identify a “trend,” the recent criminal cases may signal a definite change in employees’ historical dependence on the decisions of civil juries, workers’ compensation boards, expert panels, and the broader public health community to remedy injustices. Further, the criminalization of a worker’sdeath is a step in the transformation in our thinking about the nature of industrial accidents and disease: Is this an essentially private matter, to be settled in court between a worker and an employer? Is it a public health matter? Or is it a public, criminal issue, to be prosecuted by the state? We may be in the process of reinventing the means by which the public protects its right to a safe and healthy workplace, exclusive of the compensation system and state and federal regulatory bodies.

 The Changing Understanding of Workplace Deaths

 For the historian, it is remarkable that this change is occurring under historical circumstances that in certain ways are familiar and in certain ways are very different from earlier efforts to bring national attention to the need to reform workplace conditions.First, the recent effort to introduce the concept of murder into our understanding of industrial accidents is coming not from the labor movement, the public health community, federal agencies, or liberal advocacy groups, but from local prosecutors and the states. Second, it is occurring at a time of labor decline and weakness, born as it was in the midst of the Reagan administration.Third, it is an effort that appears to assume that the administrative and governmental tools of the Occupational Safety and Health Administration (OSHA) and public health agencies are ineffective, despite a continuing decline in the fatality rate in American work-places. Finally, it is occurring in a virtual vacuum of popular pressure.39 

While this may be the first time in American history that prosecutors have defined workplace death as a form of homicide, it is certainly not the first time that broad segments of the American public have viewed it in this way. During the past century there have been numerous instances in which popular journals, government, unions, and laborers have defined workplace deaths as forms of murder. A brief look backward may help us understand the ways in which a worker’s death is socially transformed from an “accident”—an unpredictable, chance occurrence—into manslaughter or murder—a preventable and predictable event, caused by one or more identifiable entities. In this process, the responsibility for such an event is also transformed:no one is to blame for an accident, but specific persons, sometimes in their capacity as representatives of disembodied corporations,can be held accountable for a preventable and predictable event.

The growing concern over workers’ deaths took shape in the first decade of the20th century, in the wake of the revolutionary social and economic changes that American industry had recently undergone. In little more than 3 decades, Americans had witnessed the virtual explosion of urban and manufacturing centers as rural populations moved to urban centers. Before the Civil War,most Americans lived on farms or in small towns, and the few factories that existed were scattered in mill and mining communitiesthroughout the Northeast. The growth of the transcontinental railroads, the development of national markets, increased exploitation of natural resources such as coal and iron, and the massive immigration of laborers from rural Europe to the cities of the Northeast and Midwest changed the conditions of work dramatically. (See Tomlins.40,41) America rose from a fourth-rate industrial power to the world’s leading industrial producer. 

Along with increased production came a rapid decline in working conditions for many laborers. Speed-ups; monotonous tasks;exposure to chemical toxins and metallic,mineral, and organic dusts; and unprotected machinery made the American workplace among the most dangerous in the world.42“To the unprecedented prosperity . . . there is a seamy side of which little is said,” reported one observer in a 1907 article titled “The Death Roll of Industry.” “Thousands of wage earners, men, women, and children, [are]caught in the machinery of our record breaking production and turned out cripples. Other thousands [are] killed outright. . . . How many there [are] none can say exactly, for we[are] too busy making our record breaking production to count the dead.”42(p791) 

In a theme that would appear repeatedly,reformers compared the toll of industrial accidents to that of an undeclared war, sometimes a war on workers themselves. In 1904, for example, The Outlook,a mass-circulation magazine, commented on the horrendous social effects of industrialization. “The frightful increase in the number of casualties of all kinds in this country during the last two or three years is becoming a matter of the first importance. A greater number of people are killed every year by so-called accidents than are killed in many wars of considerable magnitude. . . . It is becoming as perilous to live in the United States as to participate in actual warfare.” The magazine demanded that the states begin counting industrial accidents and deaths “in order that the people of the United States may face the situation and understand how cheap human life has become under American conditions.”43 

The power of the early-20th-centurymovement depended on the widespread publicity provided by a group of journalists and writers. These “muckrakers” exposed the horrible conditions of work to millions of Americans through mass-circulation magazine articles, pamphlets, and books. Their primary aim was to arouse the public through a wide spread propaganda campaign aimed at forcing reform legislation through Congress and state legislatures. They also sought to force particularly dangerous industries to April 2000, Vol. 90, No. 4536 American Journal of Public Health Health Policy and Ethics Forum clean up their workplaces, by developing a language and argument that portrayed workers’ deaths as a form of industrial homicide.William Hard, in a 1904 article in the widely circulated magazine Everybody’s, described the conditions of work at the US Steel Corporation’s south Chicago plant. In 1904 alone, 46 men were killed on the job and 386 suffered permanent disabilities. In vivid detail, Hard described how men fell into vats of molten metal or were showered with molten steel by sudden explosions in the furnace.44Similar conditions were described in 1911 by John Fitch.45 

The Survey, Everybody’s,and The Outlook, all widely distributed mass-circulation magazines, served as the outlets through which muckrakers and others exposed conditions in the dangerous trades and detailed “the death roll of industry.” Here, writers described how industrialists sent “to the hospital or the graveyard one worker every minute of the year.”42(p791)Others noted that the “price we pay in human lives for our industrial progressis . . . appalling. For nearly every floor of every skyscraper that goes to make up Manhattan’s picturesque skyline, a man gives up his life.”46During these years, Crystal East-man wrote her classic study of Pittsburgh workers, Work-Accidents and the Law,47andUpton Sinclair wrote The Jungle.48It was at this time, too, that Alice Hamilton produced her classic studies of the lead industry49andwrote feature articles for popular magazines relating the plight of urban industrial workers and their families.50At the federal level, the Railroad Compensation Act of 1907 promised financial compensation for accidents to rail-road workers injured on the job.

The rhetoric used to address workers’deaths in the first decade of the century was composed of two sometimes conflicting ideological perspectives. Most of the muck rakers used the rhetoric of class to talk about the systematic deaths of workers. But others used concepts and language borrowed from the lexicon of business when analyzing the issue of death, disability, and responsibility at the workplace. They often used words and arguments borrowed from then-contemporary theories of scientific management and efficiency, speaking of the “costs” of industrial accidents or the “inefficiency” or scarcity of“human resources” they caused. Injured workers were compared to broken machinery, and workers killed on the job were described as “wasted resources.”

 “A careful businessman sees that his property is maintained in excellent condition,” said one propagandist for International Harvester in 1912. “His buildings are kept in good repair and fully insured against loss from fire. His machinery is always maintained at a high point of efficiency. . . . In short, every dollar he invests in his business is guarded and nursed so that it brings forth its full and legitimate earning power.” A businessman who conserves the workforce, he maintained, “is simply applying the same business principles to his workers that he applies to the rest of his business.”51Others pointed out that healthy workers were more productive than sick workers.52–54The over-riding assumption of most muckrakers was that if they shone a bright light on acts of evil,the more unseemly outrages of industry would be controlled and the killing of workers would subside.

 The Triangle Shirtwaist Factory Fire and Its Consequences 

Yet this attempt at moral suasion would change dramatically in the years following the infamous Triangle Shirtwaist Fire in lower Manhattan, near Washington Square Park. On March 25, 1911, just before closing time, a fire began on the eighth floor of the loft building in which 600 women, most of them young immigrants, made corsets and shirt waists. Quickly the fire began to consume the tons of scraps and cloth clippings that covered the floors of the factory, spreading rapidly to the floors above. Because exit doors were locked from the outside and the fire stairs were made of wood, the women began to realize that they faced a terrible choice: either be burned alive or jump to their deaths 110 feet below. As a crowd gathered below, and as firemen in horse-drawn trucks found that neither their ladders nor the water from their hoses could reach above the sixth story, 62 women jumped to their deaths on the pavement below. Some hit with such force—11 000 lb/ft2—that they crashed through the pavement into an underground basement.55

 The fire spurred a shift in the rhetoric regarding the responsibility for “accidental”deaths, as labor organizers, reformers, and socialists began pressing a broader, more pointed class analysis that saw workers’ deaths as symptoms of an insidious social malady. A broader indictment of capitalism itself, rather than of individual culpability or the greed of a specific owner, began to permeate the popular and reform literature.Especially after the March of Half a Million garment workers, their families, and supporters (during the week following the fire), it became apparent that the shift in rhetoric augured severe class conflict over workers’deaths. Businessmen “would rather risk their neighbor’s lives than their own money,” complained one discussant. “Greed feels nothing, knows nothing, cares for nothing but profit. It fears nothing but the loss of dollars. . . . There is no . . . reason to suppose [employers] are distressed by the sight of human beings crushed under falling walls or leaping all aflame from tenth story windows,” remarked The Independent in an editorial titled “Business and Manslaughter.”56The fire and its aftermath also ushered in, in the words of Arthur McEvoy, “the establishment of the modern regulatory state.”55(p622)(See alsoStein.57)

Socialists and moralists rejected a world-view that saw workers as “machines” or the“raw material” for industry. The new rhetoric of the muckrakers and other propagandists achieved major reforms intended to protect workers. It was most successful in making occupational safety and health a national issue.For almost a decade, exposés of inhumane working conditions were regular features in newspapers and magazines across the country.Labor leaders and the American Association of Labor Legislation pressed for a bundle of legislative and voluntary reforms such as the Esch Phosphorus Bill, which mandated a prohibitive federal tax on phosphorus used in the manufacture of kitchen matches (matchmakers who worked with phosphorus suffered from “phossy jaw,” a devastating disease that destroyed the jaws). Child labor laws and laws restricting women’s work in foundries, lead plants, and other dangerous places were passed. Stricter factory inspection systems were introduced in the larger industrial states. 

An alliance between labor and consumer groups augured an even more potent political movement. The Consumers League,a New York–based organization, pressed for“safe and healthful” workplaces and a ban on homework for women and children. TheWomen’s Label League called for a label—similar to the Good Housekeeping Seal of Approval—to be placed in clothes produced in safe and healthful workplaces and to bedisplayed in advertisements of companies that maintained hygienic workplaces.58EvenTeddy Roosevelt’s Progressive Party adopted a plank calling for safer workplaces.59 

The “Assumed Risk” Doctrine and Other Roadblocks to Change

During the 19th century, job-related injuries and deaths were seen as unfortunate,perhaps inevitable, by-products of production.Personal health and safety issues in pre industrial America were seen as the responsibility of the worker. Legal doctrines such as “assumed risk” spoke to the prevailing 19th-centuryAmerican Journal of Public Health537April 2000, Vol. 90, No. 4 Health Policy and Ethics Forum belief that the worker both controlled and was responsible for the conditions of his or her work and that the employee, by taking a job,assumed the risks of employment and therefore responsibility for occupational injury or death. The doctrine of “contributory negligence” held that even when an employer had clearly placed an employee at risk, a suit could be disallowed if the worker had contributed in any way to the accident. Finally, the “fellow servant” rule, which laid responsibility for industrial accidents at the feet of the victim’s fellow workers, effectively protected employers from responsibility. Together, these three19th-century concepts effectively shielded the employer from responsibility for injuries or deaths on the job.60 

The rise in industrial production, the seeming helplessness of individual workers employed in mass-production factories, and the control that managers obviously sought to assert over a large immigrant work force allowed for a movement that forced society at large and government officials to respond. All this effort led to the passage of one of the most enduring legislative programs aimed at addressing human welfare. State after state,between 1910 and 1920, passed worker’s compensation laws that guaranteed monetary compensation for industrial accidents through a no-fault system of mandatory insurance.

Ironically, this answer to the problems posed by accidents and deaths in the early years of this century may have served to diminish attention to the ongoing deaths and injuries that continued to plague American industry throughout the 20th century. By identifying death and disability with monetary compensation and by moving contention over deaths from the courts to expert panels and administrative boards, [the rhetorical language of industrial deaths] virtually vanished from popular discourse, to appear only sporadically during particularly outrageous moments in the coming decades. No longer did the popular press refer to such deaths as homicides—now they were presented as accidental events, for which there was no corporate criminal liability and which merely required compensation. 

Another effect of the development of workers’ compensation as the means by which we as a culture addressed death on th ejob was to remove the issue of accidents from the courts and therefore from public view. As is well known, the compensation system makes it difficult, if not impossible, for a worker or a worker’s family to bring an injury claim to court, even when the injury results in the worker’s death. When the statutes were written and passed during the second decade of the 20th century, the states mandated that in exchange for relatively fast and uncontested compensation for workplace injuries, workers would give up their right to sue employers in court. The workers’ compensation system further undermined popular understanding of workplace injuries as a responsibility of employers by establishing a no-fault system,in which culpability for an accident was no longer an issue. In part, this system freed workers from having to prove in court that an employer’s negligence in safeguarding equipment or providing proper warnings had led to an event. In large measure, however, it also served to make culpability an irrelevant issue.State or privately administered workers’ compensation boards and insurance companies had no reason to assign blame, other than to adjust premiums according to the dangers of the job. No longer were juries of one’s peers forced to determine responsibility.

 Despite these drawbacks, the reforms led to significant reductions in job-related fatalities. But work continued to be dangerous and deaths continued to be a frequent occurrence. The tetraethyl lead controversyin the 1920s, when workers in DuPont and Standard Oil facilities in New Jersey were poisoned and died, made national headlines and raised again the question of responsibility.61Throughout the 1930s, deaths on the job were, if not an everyday experience, some-thing that seemed commonplace to industrial workers. Disease began to replace accidents as a focus for labor and reform activists, and there were widespread references in the labor, political, and ethnic press to the “murder” of workers on the job. During the Depression, slavery became a prominent metaphor, supplementing the rhetoric of murder.62,63Workers, tethered to terrible jobs by the ever-present fear of unemployment,were forced to work under unbelievably horrible conditions. The health and well-being ofentire communities were destroyed. 

Silicosis and the Redefinition ofResponsibility for Risk 

The silicosis crises of the 1930s, when it was estimated that thousands of workers were dying slowly and painfully from a disease that was caused by industrial negligence, produced headlines in newspapers and spurred the publication of a number of books and hundreds of articles in popular and professional journals. Once again, industry’s role in workers’ deaths was seen as criminal negligence at best and murder at worst.64But even then, as public health officials, government agencies, and congressional hearings identified silicosis as a well-known and completely preventable disease,workers’ compensation and other factors combined to undercut employer responsibility as an issue.

Silicosis, a chronic disease with a long latency period, was perhaps the first such dis-ease to be incorporated into state workers’compensation schedules after 1935. This proved to be an important factor in removing silicosis from public attention in the 1940s and1950s. In New York State, for example, the bill provided for a maximum of $3000 for total disability for silicosis and no compensation for partial disability.65Between 1936—the year compensation for silicosis became law—and 1940, only 79 workers were compensated for silicosis, receiving a total of $99 594.66Because the disease was addressed by workers’ compensation plans, workers with silicosiswere effectively denied access to the courts.Industry took other actions as well to limit the visibility of silicosis, and by the 1940s, the disease began to fade from public view. The professional and business communities, despite continuing documentation of cases, declared silicosis a disease of the past, whose current victims were a legacy of the unhygienic and primitive working conditions of a bygone era and certainly not the responsibility of contemporary owners.64 Today, silicosis continues to destroy the lungs of workers and to attract the attention of some federal officials.67

 The Continuing Menace ofAccidents and Disease 

In 1970, the passage of the OccupationalSafety and Health Act—which established OSHA and the National Institute of Occupational Safety and Health (NIOSH)—and the Mine Health and Safety Act once again reminded Americans of the dangers of the workplace and of corporations’ responsibilityfor these dangers. But despite the real decline in job-related fatalities brought on by OSHA,workers’ compensation, factory inspection,and the like, there is a continuing “death roll ofindustry.” The Bureau of Labor Statistics estimated that 6210 of the United States’ 126 million workers lost their lives in 1995. In all,there were 5 fatalities for every 100 000 workers.68(p61)Mining, construction, chemical works, and other dangerous industries continue to injure and kill hundreds of workers a year. On any given day, 1 worker in the United States is killed, mangled by a machine, or crushed in a cave-in or grain bin. Further, on a typical day, 1 worker is killed by falling cinderblocks at a construction site and 2 others die infalls from construction scaffolds, ladders, or roofs.68(p62)In 1997, “fatalities resulting from workers being caught in machinery reached a6-year high.”69,70While it should be pointed out that trucking accidents and the like are April 2000, Vol. 90, No. 4538American Journal of Public Health Health Policy and Ethics Forum quite different from the industrial accidents of the past, the shifting nature of the economy has created new, often undocumented, hazards as service jobs and home work replace manufacturing and factory work.8,9,71,72 

The historic trade-off, in which workers give up their right to sue employers in exchangefor relatively swift no-fault compensation, has been supported by labor and management alikefor many decades. But this mutual agreement to exchange money for justice has a downsidethat is slowly becoming more evident as themost egregious acts of corporate malfeasance go unpunished because of laws that often obscure rather than illuminate injustices. The destruction of even a semblance of federal oversight of the workplace has left an enormous vacuum that may be filled, justifiably, bystate district attorneys.

District Attorneys or PublicHealth Advocacy?

If the recent reawakening of concern for workers’ deaths is real and the activities of the district attorneys increase in coming years, we must ask some interesting questions. First, we must ask why the criminal code is being employed to address workers’deaths in the absence of a major social move-ment. In previous eras, state reform and legislative activities followed popular and labor agitation; they did not precede it. Second, we must ask why activity is occurring primarilyat the state level, rather than at the federal level, where OSHA and NIOSH have claim to the issue. It is perhaps ironic that the conservative attempts to restrict federal regulatory activities and to move control to the state level have resulted in a broadening of the mechanisms for addressing workers’ death:what was, at the federal level, an area for public health regulation becomes, at the state and local level, an arena for prosecutorial action. It is a further irony that the public health community’s inability or unwillingness to effectively confront this issue is forcing prosecutors to take up the challenge. 

We may ask whether there is a parallel between the conditions of 19th-century lais-sez-faire capitalism that led to the popular movements promoting workplace safety and the Reagan years’ move toward deregulationand fewer restraints on industry that have led state and local prosecutors to criminalize some workplace accidents. Finally, we may ask whether the personalized nature of the current prosecutions will lead to success inlimiting the number of deaths on the job. By asking such questions and looking at the history of this issue, we may be able to determine when and under what circumstances a worker’s death stops being an accident and becomes murder. 


This commentary was presented at the History andPublic Health Ethics conference, Columbia Univer-sity, New York, NY, February 23, 1999.

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The author is with the Program in the History of Pub-lic Health and Medicine, Mailman School of PublicHealth,Columbia University, New York, NY.Requests for reprints should be sent to DavidRosner, PhD, Program in the History of Public Health and Medicine, Joseph L. Mailman School ofPublic Health, 100 Haven Ave, Tower III, 17H, NewYork, NY 10032 (e-mail: commentary was accepted January 13,2000.

Source:- American Journal of Public Health, April 2000 Vol. 90 No.4