Are Criminal Charges Against GM and Its Negligent Employees Even Possible?

Back in 2005, General Motors management decided that a few dollars per car was too much to spend to keep its customers from peril and hid a critical safety flaw on the Chevrolet Cobalt. Now 13 people have been killed as a result of the defective ignition switches that GM refused to fix, although that number dead may really be in the hundreds.

Last week, in a Senate subcommittee hearing on the safety defect, lawmakers confronted General Motors CEO Mary Barra with evidence that a company employee, Ray DeGiorgio, intentionally tried to hide the switch problem back in 2006. It was also revealed that GM purposely withheld the knowledge that failed switches would lead to airbags not deploying in accidents.

These revelations are prompting politicians, safety advocates, victim's families, and even progressive icon Michael Moore to call for criminal charges for the people responsible for the cover up (or in Moore's hyperbolic solution, the death penalty), although there is very little precedent for such prosecution.

After the hearing, Leo Ruddy, whose 21-year-old daughter Kelly was killed 4 years ago when her Chevrolet Cobalt inexplicably crashed, told the media that "the only way the public is going to be protected from this negligence by companies is if there will ultimately be prison sentences."

Rudy's call for justice was echoed by Ken Rimer, whose stepdaughter was killed in a defective Cobalt 8 years ago and by Joan Claybrook, the former director of the National Highway Traffic Safety Administration when they appeared on Democracy Now!

“They knew what was going on,” Rimer told interviewer Amy Goodman. “They need to be held accountable for those decisions that they made, and throughout process, not just the guy that signed off the original paper, but, you know, his supervisor and all the way up the chain of command.”

Claybrook, also speaking to Goodman, added that she and others had worked to get criminal penalties into Department of Transportation safety statutes since the mid-1960s, but their efforts failed because of vigorous opposition by the automakers. Now she says that it's past time for that.

“If an auto company knowingly and willfully covers up or refuses to disclose a safety defect or a noncompliance with a safety standard, that they are liable for criminal sanctions, and that would include jail time as well as dollar amounts,” says Claybrook.

Politicians are also joining the fray. Sen. Claire McCaskill, who chaired the Senate subcommittee inquiring into GM's actions last week, called for GM to made restitution to the families of the victims and suggested that criminal charges should be filed.

Sunday on ABC's “This Week” show, McCaskill, the chair the Senate subcommittee on consumer protection and product safety, suggested that if GM is a person under the Citizen's United definition, then it can face the same criminal charges that a human person can.

"You know we had the Citizens United case where our Supreme Court said corporations are people,” said McCaskill, “but if in fact they are people, there needs to be some criminal accountability depending on what the facts of the investigation show.”

McCaskill isn't alone in the Senate, her Republican counterpart, Sen. Kelly Ayotte, a former prosecutor, says that "I don't see this as anything but criminal.”

Never shy to add fuel to a fire, Michael Moore wrote a controversial declaration about the scandal: "I am opposed to the death penalty, but to every rule there is usually an exception, and in this case I hope the criminals at General Motors will be arrested and made to pay for their pre-meditated decision to take human lives for a lousy ten bucks."

But the possibility of criminal prosecution of GM employees is not clear. Legal analysts are quoted as saying that it's easier to show corporate wrongdoing, but hard to target employees. Corporate documents, which can be used in a civil lawsuit against a company, might not be admissible as evidence in criminal cases against people.

Legal experts also note that the Justice Department set some precedent when it didn't pursue criminal charges against Toyota employees recently, although it was revealed that some managers concealed a problem with pedal entrapment in eight vehicle models, which led to unintended acceleration problems. In 2009, it was revealed that unintended acceleration caused many deaths and accidents and that Toyota ignored the problem even after the toll mounted and customers became outraged.

While it never sought criminal charges, the Justice Department was able to secure a $1.2 billion penalty against Toyota last month.

But doubts about the feasibility of criminal prosecution by legal analysts isn't stopping the Justice Department from at least trying. It's Southern District of New York office is looking into criminal prosecution, as it questions whether GM purposely misled federal regulators about the extent of the problems. According to The New York Times, if federal prosecutors find they can't prove criminal liability, they'll pursue civil charges instead.

Watch the video from Democracy Now!