The drive to criminalize business conduct continues unabated, with federal officials even deploying the specter of jail time for a company’s negligent behavior as a tactical diversion from government’s own incompetence. 

Consider, for example, the situation in the Gulf of Mexico.  Nearly three weeks have passed since the British Petroleum oil rig exploded, but so far, little has been done to deal with the worst energy disaster since Chernobyl.

The U.S. government’s newest tactic: shift the focus from “plugging the hole” to BP’s conduct.  How to do this: begin a criminal investigation of BP that will hopefully yield a villain worthy of the front pages.  Two of the last three posts on the official White House blog have been on the criminal investigation of BP.  Attorney General Holder has promised that, “If we find evidence of illegal behavior we will be forceful in our response.” 

In the U.S. criminal justice system, evidence is sought following the establishment of a crime.  The Attorney General and the President are inverting the process in a way that is hauntingly similar to a quote by Lavrenti Beria, Stalin’s Chief of Police.  “Show me the man, and I will show you the crime.”  The Attorney General and the President seem to know who is guilty, now they just need to find some facts.

The situation in the Gulf South is terrible.  The ecological landscapes and economies of Louisiana, Mississippi, and Alabama may never be the same.

However, such a tragedy cannot sanction federal officials’ dismantling of criminal due process as a way of shifting the media’s attention from government’s failures.  Instead, the government should concentrate on fixing the problem, and then perform a dispassionate investigation to determine where administrative, civil, or perhaps even criminal sanctions are appropriate.