More, Please.

Judge Irene C. Berger to Donald Blankenship:

“Mr. Blankenship, I’ve given great consideration to this sentence, and I find that the sentence of 12 months followed by one year of supervised release and a variant fine of $250,000 is reasonable. The jury found in its deliberation, after listening to evidence for a period of six weeks, that you had conspired with others of Massey Energy to willfully violate mine safety and health laws.*

In so doing, I have found, and I find it to be fact, that you abused the trust of the Massey Energy shareholders, your fellow officers and directors and, most importantly, the trust of the employees who looked to you for leadership and for a safe workplace. Mining has carried the State of West Virginia for generations, as you well know. Each day and each shift that miners don their hats and boots and proudly go underground generally without any trepidation to make a living for themselves and for their families, they necessarily rely on owners and operators and administrators of these mines to provide a safe workplace. Safety simply has to be paramount.

Although there was evidence, presented of an S-1, P-2 program, or a safety first and production second program at the mine, it was not borne out by the testimony that we heard presented during the course of the trial. By putting profitability of the company ahead of the safety of your employees, you, Mr. Blankenship, created a culture of noncompliance at Upper Big Branch, where your subordinates accepted and, in fact, encouraged unsafe working conditions in order to reach profitability and production targets.

The legacy of that conduct was visible in the testimony of the miners from Upper Big Branch in this case, who described dire working conditions where their safety was routinely compromised and preventable hazards were tolerated. There was testimony that I recall that the miners had to hide their efforts at safety, or that they had to hide nonproduction time where they were making efforts at safety. As chief executive officer, you were ultimately responsible for ensuring that these miners went to work each day in mines which followed M.S.H.A.’s safety and health standards. Having grown up in West Virginia coalfields, you had to be aware, and having risen through the ranks of the company you had to be aware of the vital importance of safety in the coal industry.

I take no pleasure in imposing this sentence here today, Mr. Blankenship. Although I believe the sentence to be warranted and I believe it to be appropriate, there’s no pleasure in my imposing it. Quite frankly, having given a bit — a good bit of consideration to this case, you should be someone that we are able to tout as a West Virginia success story.

You were raised by a single mother in southern West Virginia. You attended public schools in southern West Virginia, attended Marshall University, where you obtained a degree. You then became a C.P.A. and rose through the ranks of Massey to become its chief executive officer. And you’ve given back to your community. Instead of being able to tout you as one of West Virginia’s success stories, however, we are here as a result of your part in a dangerous conspiracy. I’ve considered your lack of criminal history, Mr. Blankenship. I have reviewed in excess of 100 character letters written on your behalf. I think your lawyer submitted 110, and there were four or five which came directly to me that were not included in the batch that was sent to me by the lawyers.

Some of those who wrote letters flatly disagree with the jury’s verdict based upon their opinions of your work ethic and your commitment to safety. Some simply express their opinion that you were, in fact, committed to safety, while others tout the community programs for children and others you initiated including the Christmas Extravaganza which a number of them mentioned for underprivileged children, and of scholarships that you initiated.

Other writers knew you personally from childhood. And still others had personal stories of how you helped when they went through personal health or other crises. I’ve given consideration to all of that.

In my consideration of the 3553(a) factors, the direct and circumstantial evidence in this case, I disagree with your lawyer about the status of the evidence as it relates to a conspiracy. The nature of conspiracy cases is that oftentimes there’s not direct evidence of some express agreement and, more often than not, the evidence is borne out through circumstantial evidence. He and I simply disagree on the status of that. But having considered it, I have considered the length of time that the conspiracy lasted. I’ve also considered that during that time, the risk of injury and death was present every single day for employees in the mines. I’ve considered the pervasiveness of that conspiracy.

Neither of those issues is addressed in the guideline range. I have found, given the nature and extent of the conduct, that the fine range under the guidelines is simply not sufficient in this case to meet the goals of sentencing and, therefore, have imposed a fine above that applicable advisory guideline range at the statutory maximum. Specifically, in my consideration of just punishment for the serious crime of conspiring to willfully violate mine safety and health standards, of deterring you and others from engaging in similar conduct, and promoting respect for the law, I find a sentence of one year of incarceration coupled with that maximum fine is sufficient and, yet, not greater than necessary to meet the goals of sentencing.

I also find specifically, Mr. Blankenship, that the sentence reflects the seriousness of the offense. And I want to be clear that this court has considered the evidence at trial. I want to place on the record, because it was brought out during the course of arguments, that I’ve not even seen a “60 Minutes” production about this case. But the evidence and the impact of the offense, and giving consideration to the 3553(a) factors, tells me that this sentence is appropriate and that it’s warranted.

Again, I believe the sentence promotes respect for the law. It also reflects the seriousness of the offense. And it serves to protect the public from other such crimes. It also serves to avoid unwarranted sentence disparities, in my opinion, between you and others who are similarly situated. The crime is serious. There’s been discussion here about the acquittal of felony offenses and your conviction of a misdemeanor. Those of us in the legal community put tags on offenses. Congress puts tags on offenses. But when we seek to sentence someone, we sentence based on the conduct, which I find to be very serious not only in its commission but in its potential impact in terms of risk in this particular case. And, again, I find it to be appropriate given those 3553(a) factors.

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*Prior history of safety violations and fatalities

In 2009, the company, Massey Energy, was fined a total of $382,000 for "serious" unrepentant violations for lacking ventilation and proper equipment plans as well as failing to utilize its safety plan properly.[29] In the previous month, the authorities cited the mine for 57 safety infractions. The mine received two safety citations the day before the explosion, 600 in the preceding 18 months, and 1,342 in the preceding five years.

The CEO of Massey Energy, Don Blankenship, has received criticism for his apparent disregard of safety. The Upper Big Branch Mine-South, where the explosion occurred, has been in operation since October 1994. Between 2000 and 2009, two fatalities occurred at this mine.

In the previous year, 50 of the safety violations, more than 10%, were categorized as "unwarrantable failures to comply," which indicates willful or gross negligence; this was higher than the 2% national average.

According to miners at Massey, many employees knew the Big Branch mine was hazardous; to protect themselves some experienced miners had left in months prior to the explosion.

One miner said mine officials "buy off judges and have political connections. They disregard safety rules; they get away with it. And most of all they work you to the bone."

Another miner said “When you work for Massey, you give your life to Massey.

According to the World Socialist Web Site, many of the mine's infractions prior to the explosion entailed a sharp increase in coal production.