The Wall Street Journal reports that an Italian court has convicted six scientists and a government of criminal manslaughter for what the court said was a failure to warn of a 2009 earthquake. The judge sentenced the seven defendants to six years in prison, pending appeals. I was aware of this case back when the prosecution was first initiated, but somehow assumed that this kind of claim was a stunt that would get tossed out in due course. Apparently I was wrong, at least pending appeals. I haven’t been able to find an English translation of the judgment, but the Wall Street Journal’s report doesn’t appear to be behind the subscriber wall:
An Italian court convicted six scientists and a government official of manslaughter for failing to adequately warn of the earthquake risk in the city of L’Aquila ahead of a deadly 2009 quake, in a surprise ruling that victims’ relatives welcomed but scientists said could undermine their work.
Judge Marco Billi sentenced each of the defendants to six years in prison—harsher than prosecutors’ original requests of four years. The judge also barred the men from holding public office for life. The sentences won’t come into effect until the end of any appeals process. “The importance of this ruling isn’t that it says an earthquake can be predicted; rather that the risk of a quake can be predicted and, therefore, mitigated,” said Fabio Alessandroni, a lawyer representing many of the 308 people killed in the disaster.
I am skeptical, to say the least, of the lawyer’s statement in that last graf – even if you can’t predict an earthquake, the “risk of the quake can be predicted” and “therefore mitigated.” As the article points out, Italy’s Major Risks Commission had noted that the vast majority of minor tremors don’t presage a major quake. Many scientific associations have been alarmed by the prosecution:
The trial has outraged many scientists who say that predicting a specific earthquake or other natural disaster is virtually impossible and that they shouldn’t be held responsible for such risk predictions. “The concern is this could have a very chilling effect for future scientists in seismology,” said Joanne Padrón Carney, director of the Office of Government Relations at the American Association for the Advancement of Science. “Where does the responsibility lie? It is really a political question, a process question, not just a science question.”
The verdict could prompt Italian scientists in the future to err on the side of exaggerating risk and over-alarming the public, or to say nothing at all, said Brooks Hanson, a spokesman for the American Association for the Advancement of Science. “It’s going to make it harder in the future to convey accurate information,” said Dr. Hanson, a geologist.
It’s hard for me to imagine that this kind of prosecution and verdict creates welfare maximizing incentives for the scientists and public officials involved. Even beyond the incentives to give maximum warning at every tremor, the threat of criminal prosecution also might disincentivize the development of improved technologies of prediction. Since such technologies emerge incrementally in many instances, if technology v1 creates liability, v2 will often not be sufficiently different to avoid liability even if a marginal improvement on v1, and v3 likewise, and so on. This makes it potentially much harder to reach v25, even though it might constitute a huge improvement.
Update: The estimable international and EU law scholar Martin Holterman, who comments frequently here at VC and Opinio Juris, has sent me a link to a blog post by Roger Pielke suggesting that the decision is more complex than news accounts outside of Italy have described. As I said above, I haven’t been able to find an English language translation of the court judgment (I’m not sure there is one), so let me quote Pielke quoting Science (behind sub wall) as pushback:
[A]s the trial unfolded here over the past year, a more complex picture has emerged. Prosecutors didn’t charge commission members with failing to predict the earthquake but with conducting a hasty, superficial risk assessment and presenting incomplete, falsely reassuring findings to the public. They have argued in court that the many tremors that L’Aquila experienced in the preceding months did provide at least some clues about a heightened risk. Meanwhile, a recorded telephone conversation made public halfway through the trial has suggested that the commission was convened with the explicit goal of reassuring the public and raised the question of whether the scientists were used—or allowed themselves to be used—to bring calm to a jittery town.
That last block quote is from the Science article quoted by Pielke, not Pielke himself, just to be clear. I appreciate that the facts might be much more complicated as far as scientists being more reassuring to the public than the existing state of science and risk analysis ought to permit. But I don’t think this would change my judgment about a criminal manslaughter verdict with six year sentences and its effects, not just on these scientists, but on the overall incentives for warnings. Criminal liability and prison time seem to me far too blunt an instrument for addressing whatever mistakes of the warnings conveyed. However, Pielke raises another important issue, also at the center of this case, but separate from the question of risk analysis as such or what should be conveyed to the public in the way of warnings given the primitive state of the science and technology. This is the question of the authority of scientists when it comes to public policy:
[O]ne interpretation of the Major Risks Committee’s statements is that they were not specifically about earthquakes at all, but instead were about which individuals the public should view as legitimate and authoritative and which they should not. If officials were expressing a view about authority rather than a careful assessment of actual earthquake risks, this would help to explain their sloppy treatment of uncertainties.
Obviously the question of the authority of scientists, speaking to their expertise, in relation to public policy and public officials, and the authority they have from a quite different source, which is essentially fiduciary in a democracy – conveyed to officials from the public – is a debate at the center of the role of scientists in the bigger arguments over climate change and a host of other risk analysis-dependent public policies. There are ways in which this case might be thought to illuminate that debate, perhaps. But at bottom criminal law, particularly prison terms, is too blunt an instrument, not only for this case and its individual scientists – but also for serving as a way to illustrate the argument over scientific authority. As a way of framing an argument over expert authority, criminal law in this case obscures rather than illuminates.