Former U.S. Attorney Booth Goodwin is criticizing federal court rulings that have, so far, produced only one short jail sentence for any of the six former Freedom Industries owners and officials that Goodwin went after in a rare prosecution of water pollution crimes following the January 2014 chemical spill that contaminated drinking water for hundreds of thousands of residents in the Kanawha Valley and surrounding communities.
"I'm very disappointed that the defendants who poisoned the water of 300,000 West Virginians are being treated with leniency," Goodwin said in a statement issued shortly after former Freedom co-owner and president Dennis Farrell was sentenced to just 30 days in jail for two water pollution crimes.
Goodwin, who resigned last month to run for governor, had issued another statement a few days prior to Farrell's sentencing hearing that argued, "people who poison our water should go to prison."
But in sentencing decisions made so far in five of the six Freedom cases, U.S. District Judge Thomas E. Johnston has cited the nature of the crimes - all misdemeanors - that Goodwin agreed to in plea deals with those Freedom officials as a central reason for not imposing tougher sentences.
"In the eyes of the legal system, a misdemeanor charge limits the seriousness of the crime and must necessarily limit the punishment as well," Johnston has said, reading from a similar prepared statement at each of the sentencing hearings.
Freedom Industries and six former owners or top officials pleaded guilty to one or more of three water pollution charges: negligent discharge of a pollutant; discharge of refuse material; and violation of a water pollution permit condition.
In the cases of individual defendants - Farrell and former Freedom officials William Tis, Charles Herzing, Michael Burdette and Robert Reynolds - Goodwin's office charged and eventually agreed to plea deals for misdemeanor-only offenses. Former Freedom President Gary Southern also was charged with a long list of felony bankruptcy fraud counts, alleging that he lied about his involvement with the company to protect his personal wealth from Freedom's creditors and spill lawsuits. Southern's eventual plea agreement, though, dropped those felony counts, reducing his maximum potential sentence from 88 years to 85 years in prison. Southern is scheduled to be sentenced Wednesday.
Misdemeanors carry sentences of no more than one year in prison and are generally considered less serious. Felonies are more serious crimes, with more lengthy jail time potentially associated with convictions.
Under the advisory federal sentencing guidelines, Johnston could have sentenced any of the Freedom officials to prison and still been keeping within the recommended sentencing range. The guidelines recommended a sentencing range for Tis, Herzing, Burdette and Reynolds of between zero and six months in prison. Johnston sentenced each them to "straight probation," with no jail time.
Johnston has observed that few misdemeanors are handled in U.S. District Court, and that, of the "hundreds of cases" he's handled in nearly a decade on the bench, he could recall only one misdemeanor in which he gave prison time, a political corruption case in which Johnston sentenced former Mingo County Prosecuting Attorney Michael Sparks to the maximum of one year - and said he would have given him longer if he could.
"I've struggled with the sentencing decisions in these cases as much or more than as any other case I've ever had," Johnston said during a sentencing for Reynolds. "While there's no doubt that causing a discharge of a pollutant chemical into the water supply is a very serious offense requiring a just punishment, I cannot ignore the fact that these charges, for all the individual defendants, are misdemeanors."
But Pat McGinley, a West Virginia University environmental law professor, questioned the sentencings in the Freedom cases.
"Lenient sentences of probation can undermine respect for anti-pollution laws intended to protect communities and encourage similar white-collar crimes in the future," McGinley said after the Farrell sentencing.
In discussing the Farrell case, Goodwin noted on his gubernatorial campaign's Facebook page that Farrell's plea deal included language that agreed that the advisory federal sentencing guidelines called for a recommended sentence of 18 months to 24 months. Farrell had pleaded guilty to two misdemeanor counts, each carrying a statutory maximum of one year in prison.
"Now, as a private citizen, I believe it would be a miscarriage of justice for Farrell-someone who clearly contributed to poisoning the water source for 300,000 people-to escape prison time," Goodwin had said.
Sentencing in federal criminal cases is determined, at least in part, by the Federal Sentencing Guidelines and by confidential pre-sentencing investigation reports prepared by the U.S. Probation and Pre-trial Services office. The guidelines are only advisory. Judges have to calculate the recommended sentence, but still have broad discretion to sentence however they like, up to the statutory maximum.
When sentencing Farrell, Johnston noted that the section of the guidelines that produced Farrell's recommended range of 18 to 24 months included a note specifying that such a range was meant to be applied when the crimes involved were "knowing" offenses, or those that involve criminal intent. If the crimes in question instead involved "negligence," a lesser sentence could be warranted, the guidelines advise.
"If the evidence and charges against these defendants had reflected intentional misconduct, they would likely be facing the relatively lengthy prison terms the guidelines otherwise call for," Johnston said.
Goodwin, in an appearance Friday on the MetroNews radio program, "Talkline," said that "part of the problem is Congress didn't make the penalties for activities like this fit the crime."
But Congress did provide for more serious penalties for water pollution crimes - if prosecutors charged those crimes as "knowing" offenses, or felonies. For example, one of the charges in the Freedom cases, violation of a Clean Water Act permit condition, can be either a negligence crime, a misdemeanor with up to one year in prison, or a "knowing" crime, punishable with up to three years in jail.
Two of the individual Freedom defendants, Farrell and Southern, were charged with and pleaded guilty to negligent violation of a permit condition. Freedom the company, though, was charged and pleaded guilty to a knowing violation of a permit condition, a felony.
In court filings, Assistant U.S. Attorney Phil Wright has said the "knowledge" involved in Freedom's felony offense was that "certain responsible corporate officers" knew the company's Clean Water Act permit required a stormwater control plan and also knew that Freedom had not developed or implemented such a plan. But no "responsible corporate officers" of Freedom were ever charged with the felony that knowledge would have warranted, court records show. Clint Carte, a spokesman for the U.S. Attorney's Office, noted that, in another court filing, prosecutors explained that a former Freedom plant manager - who died in 2005 - knew that the company had a draft stormwater plan that had never been finalized.
Asked why no felony charges were brought against the individual Freedom defendants, Goodwin said, "We charged the cases we could develop."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.