If a Distraction Doesn’t Kill You, It Could Put You in Jail
When a truck driver is distracted and causes an accident, U.S. courts have never hesitated to throw the driver in jail. And there are certainly countries where the pilots of a crashed plane are taken directly to jail, regardless of their injuries.
But, for most of our history, the U.S. has not prosecuted surviving pilots for their negligence in the cockpit.
It is a simple question of social policy: If a pilot or mechanic makes a mistake that results in an accident, is it better to find out the truth of what happened and why, or is it more important to inflict criminal consequences on those at fault?
Most of the aviation industry is already aware of the criminal enforcement actions filed against SabreTech following the 1996 crash of ValuJet Flight 592. Since the time of the ValuJet crash, the United States Attorney in Miami has announced publicly that criminal prosecution of aviation-related misconduct is a top priority of his administration. That office has pursued numerous criminal prosecutions against a variety of aviation operators for charges related to hazardous materials, non-conforming aircraft parts, and other allegations.
One of the most telling developments in the process of criminalizing FAR violations occurred in a hazmat case several years ago. In late 1999, American Airlines pled guilty to criminal charges in which it admitted violating federal hazardous materials laws. In addition to an $8 million fine, American agreed to enter into a compliance plan with the federal prosecutors. While our industry may criticize the FAA’s lack of expertise from time to time, FAA inspectors can certainly do a more capable job of policing compliance in aviation than Department of Justice attorneys.
What law allows the U.S. Department of Justice to criminalize FAR violations?
The FAA medical application has long carried the following “Notice” from 18 U.S.C. § 1001:
Whoever in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or who makes any false, fictitious or fraudulent statements or representations, or entry, may be fined up to $250,000 or imprisoned not more than 5 years, or both.
What the notice fails to say is that these penalties are per violation. The Department of Justice has long had the ability to inflict criminal penalties in aviation matters, but for years, the FAA has been judicious about turning matters over to the DOJ for criminal prosecution.
Defendants in a criminal action have constitutional rights that “respondents” in an administrative action don’t have, and the entire FAA investigative system is designed for the relaxed evidentiary standards of administrative law. If the government really wants to abandon the present system and use criminal penalties instead of administrative sanctions, the FAA and the DOJ will lose many cases before they can effectively change the way inspectors investigate suspected allegations.
However, it has become obvious that some prosecutors at the state level and within the DOJ have determined that the “public” desires their involvement in aviation cases. It certainly appears that this trend will escalate before the “public” realizes what the criminalization of FAR violations will do to aviation safety.
For years, the courts allowed an individual to answer questions from a federal agent with a general denial, which the courts referred to as an “exculpatory no.” However, in 1998, the U.S. Supreme Court abolished this doctrine, holding that falsely answering “no” to an investigator’s question is a violation of 18 U.S.C. § 1001.
For example, if a pilot put a false answer on a medical application, and an FAA inspector called and asked “Did you falsify your medical application?” and the pilot answered “No” then the pilot could be charged with two felonies, doubling his potential fines and imprisonment.
If criminalization of FAR violations continues, what will happen to the NTSB? Neither the FAA nor the NTSB has the statutory authority to grant immunity from criminal prosecution. The Fifth Amendment privilege against self-incrimination would effectively end the NTSB’s ability to interview those involved with an aircraft accident. For years, pilots, mechanics and manufacturers have cooperated with the NTSB’s quest to determine the true cause of an accident.
If the NTSB is relegated to making educated guesses solely from studying the wreckage, it is almost certain that the complete picture of the human factors that led to the tragedy will never be fully revealed. Ultimately, criminalization of FAR violations will cost lives. Hopefully, Congress will act to immunize those who truthfully cooperate with NTSB investigations, and the DOJ will let the FAA and the NTSB do their jobs.
Kent S. Jackson
Jackson & Wade, LLC
For information about Kent Jackson see his bio on our Experts page