by Steve Tombs and Dave Whyte. Portland, OR: Willan Publishing, 2007. 264pp. Hardback. $79.95/£50.00. ISBN: 9781843920861. Paperback. $39.95/£19.99. ISBN: 9781843920854.
Reviewed by Gabriel H. Teninbaum, Suffolk University Law School. Email: gteninbaum [at] suffolk.edu.
Imagine you are a first year law student and your professor has posed a hypothetical question based on the following facts: a defendant has engaged in a pattern of behavior that virtually assures that people will be maimed or killed as a direct result of the defendant’s acts or omissions. The defendant is, or should be, aware of the high risk but, for financial gain and convenience, has chosen to continue engaging in the dangerous behavior. When the defendant’s course of actions results in serious injuries or death, will the penalty be a civil or criminal one?
For those who played out the hypothetical assuming the defendant was an individual, the answer is likely “both”: common law legal systems would likely consider the defendant’s reckless behavior criminal and imprison him; and the defendant would likely also be civilly liable and therefore have to pay money to the victims. However, if the reader assumed the hypothetical defendant was a business entity, the sanctions it would face have historically proven to be either none at all, or, at most, a modest fine.
SAFETY CRIMES is a book about reassessing the approach to recognizing and controlling workplace injuries under scenarios like those in the above hypothetical. To do so, Steve Tombs and Dave Whyte seek to identify the scope of the problem, analyze the current state of enforcement, and theorize about the best solutions to curb workplace injuries. The basic thesis of the book is that when business entities put people – whether workers or the public – at risk for serious injury, their dangerous behavior should be more closely regulated and discouraged by the government. However, a series of problems – ranging from governments disfavoring any penalty more severe than small fines for industrial bad actors, to systemic underreporting of work-related injuries – have led to regulatory agencies and society viewing workplace injuries as nothing more than unavoidable accidents. SAFETY CRIMES uses a theory-rich method to help the reader understand the root of the problems, current attitudes toward their treatment, and suggests some ways to fix them.
First, the caveats: the book is written by British authors, using British case studies, British law, and offering conclusions specifically aimed at making changes in the United Kingdom. However, that should not deter the reader interested in this topic: the British legal system is remarkably similar to that in the United States with respect to its response to occupational safety, with corollary agencies (HSE in the UK vs. OSHA in the US). Also, the theory and principles underlying the analysis and [*397] suggested changes are also applicable beyond the UK. Next, those with only a passing interest in the subject should be warned: this is a heavy book that focuses on theory and, at times, borders on esoteric. The premise of SAFETY CRIMES is simple enough, but in analyzing the sources and options for fixing the problem, Tombs and Whyte delve deeply into economic, political and legal theory. Because of the density of the book, unless the reader has knowledge in these subjects, or at least a strong yearning to learn more, it will be difficult to read more than a few pages at a sitting. Nonetheless, for those willing to put in the time and effort necessary to read SAFETY CRIMES, the reward is a well-crafted, sophisticated, creative analysis of a serious societal problem.
The book is ordered in a logical, easy to follow manner. To start, the authors define “safety crime.” In simple terms, they reason that a safety crime is an illegal act resulting in injuries to workers or the public that occurs because of deliberate decisions or omissions that grow out of a business entity trying to meet self-interested goals. To explain their concept of safety crimes, and the contexts in which they arise, Tombs and Whyte provide a series of case studies. In each (some of which are well-known, like the Bhopal, India explosion at a Union Carbide facility; while others are lesser known, like the death of a British dockworker), the authors describe the events of the incident and the environment that set the stage for the incident to occur. By presenting these case studies, Tombs and Whyte help the reader understand what they mean by safety crime by providing concrete examples of how pervasively careless attitudes and procedures of industry result in tragic, and predictable, consequences for workers.
The third chapter explains why such tragic injuries to workers are not “accidents” at all, and how the culpable pattern of risk-creating behavior by industrial actors is fundamentally indistinct from behavior of those who participate in what society typically defines as a “real” crime. Here, the authors also begin the task of explaining why it is that those in academia have failed to incorporate safety crimes into their mainstream understanding of violence and crime. Chapter 4 helps the reader see just how widespread safety crimes truly are: despite vast underreporting, the numbers establish that British workers are more likely to be victimized by safety crimes than traditional crimes of violence.
After completing the groundwork of defining the problem and its scope, Tombs and Whyte consider the reforms necessary to control safety crime. To do so, Chapters 5 through 8 examine ways to reframe the theoretical approach and suggest some solutions. In Chapter 5, the authors address how those conceptualizing conventional criminal law distinguish safety crimes from “real” crimes. They note how the process of the creation of bodies of law, and legal reform, are guided by capitalist social systems. As such, society defines its legal system at least in part with the goal of promoting capital in mind. This outlook creates tension with the need to keep workers and the public safe from unsafe industrial practices. In Chapter 6, the authors reflect on how the idea of a new category of “safety crimes” would assimilate into existing structures in the criminal law. Tombs and Whyte note [*398] that a series of technical legal problems make any approach they suggest difficult. Chapter 7 considers how existing safety law is enforced, empirically and theoretically. Here, they discuss a threshold problem of determining exactly how workplace safety regulation is enforced in practice because of a lack of transparency by the British agency charged with regulating workplace safety. The authors address theories of how and why workplace safety must be enforced by examining several approaches to which form is most desirable. In Chapter 8, Tombs and Whyte consider the empirical and theoretical options for punishing corporations and employers following successful prosecutions of safety crime, including the best practices to incentivize safety crime prevention, ranging from “shaming” corporations to a “corporate death penalty” forbidding industrial bad actors from continuing their operations.
The concluding chapter brings the preceding text together and suggests ways in which safety crimes can be better understood and controlled from a theoretical standpoint. Here, the authors return to discussing the various modes of categorizing industry’s culpability for work-related injuries. The focus of the conclusion, like most of the text, is on thinking about safety crimes in theoretical terms.
Because of its theoretical focus, it would seem that SAFETY CRIMES would not have much practical use. Yet, there is evidence someone is listening. In April 2008, a new law, the Corporate Manslaughter and Corporate Homicide Act, went into effect in the United Kingdom. The law dictates that if a corporation causes a person’s death as a result of reckless conduct, the corporation is subject to an unlimited fine, with a recommended punitive guideline of the corporation paying 5% of “turnover” (revenue) for a first offense. While its not clear that the ideas of Tombs and Whyte played a significant role in the new reforms, by bringing the issue of workplace safety to the forefront, books like SAFETY CRIMES serve as an important reminder of the significance of corporate responsibility, and how, with careful consideration, workers and the public can be made safer.
Corporate Manslaughter and Corporate Homicide Act 2007, available at: http://www.justice.gov.uk/publications/corporatemanslaughter2007.htm
© Copyright 2008 by the author, Gabriel H. Teninbaum.