CHARLESTON, W.Va. – Former coal executive Don Blankenship could receive up to a year in prison and a fine of $250,000 in connection to the deadliest U.S. mine disaster in four decades when he is sentenced one day after the tragedy’s sixth anniversary.
But just as important as the length of his sentence is whether the ex-Massey Energy CEO will remain free while he appeals the ruling.
Blankenship could actually be in and out of prison by the time he gets an appellate ruling, his defence attorneys have said in court filings.
If he is sent to prison immediately, “the court of appeals likely won’t even have decided the case until after he’s served his sentence, and so the appeal really becomes largely academic,” said Barry Pollack, a white-collar defence attorney for Miller & Chevalier. Pollack wasn’t involved in the case.
Blankenship is scheduled to be sentenced Wednesday for a misdemeanour conspiracy to wilfully violate mine safety standards at Upper Big Branch Mine.
Prosecutors didn’t charge Blankenship with causing the explosion that ripped through the southern West Virginia coal mine in 2010, killing 29 men. They painted him as a wealthy, intimidating boss who was intricately involved in decisions at the violation-plagued Upper Big Branch, and prioritized profits over essential safety precautions.
A jury convicted Blankenship of the conspiracy on Dec. 3, but cleared him of felonies that could have stretched his sentence to 30 years.
Blankenship’s lawyers want to keep him out of prison on his $1 million bond until the appeal is settled. They say he meets the legal marks because he is not a flight risk or a danger to the community, and his lawyers can raise enough questions about the lower court’s ruling that an appeals court likely will change it.
Prosecutors say Blankenship’s concerns aren’t likely to change the decision on appeal. Additionally, the judge will not even be allowed to consider that the maximum sentence is only one year, prosecutors wrote.
“A year of Defendant’s time is no more or less valuable than a year in the life of a drug defendant sentenced to 20 years,” prosecutors wrote.
Federal law allows maximums of one year in prison and $250,000 in fines for the mine safety crime, penalties that prosecutors said are “woefully insufficient.” But handing down anything less would encourage coal operators to break the law, prosecutors wrote.
“Given the magnitude of Defendant’s crime, a sentence shorter than the maximum could only be interpreted as a declaration that mine safety laws are not to be taken seriously,” prosecutors wrote.
Blankenship’s attorneys contend he should receive probation and a fine, at most. They embraced Blankenship’s image as a tough boss, but countered it by saying he demanded safety and showed commitment to his community, family and employees.
His attorneys provided the judge more than 110 letters from family, friends and former workers praising Blankenship as a safety innovator and offering rare personal glimpses into his life.
“I have two children and would have taken them in that mine (Upper Big Branch) at any time,” wrote Rick Nicolau, a former Massey worker. “. Massey (UBB) was the safest run mine that I have ever worked in in my lifetime.”
Blankenship helped build sports fields, gyms and playgrounds in the coalfields; made donations and funded scholarships; cleaned up after floods; helped local widows; and let one worker’s wife use the company plane to fly out for cancer treatment, some letters read.
Those anecdotes will contrast sharply with statements during Wednesday’s hearing from the families of miners who died at Upper Big Branch.
Even though the law ultimately caps Blankenship’s possible prison time at a year, the sentencing guidelines call for 15 to 21 months because Blankenship was a leader and organizer of the conviction offence; abused a position of public trust; and obstructed the administration of justice, according to the prosecution. Blankenship’s attorneys contest that math.
Mike Hissam, an attorney with Bailey & Glasser and former assistant prosecutor who helped investigate Upper Big Branch, said he wouldn’t be surprised if the judge cites the sentencing guidelines and gives Blankenship the full year.
Pollack disagreed, saying he expects a lesser sentence since Blankenship was convicted on a misdemeanour and he has no previous criminal history.
This story has been edited to correct the spelling of the lawfirm’s first name to Bailey, instead of Baily.