What’s next for the Don Blankenship case?
A guide to what lies ahead
Free on bond
Blankenship remains free on the $5 million bond he posted when he initially appeared in court more than year ago, on Nov. 20, 2014. Other restrictions, such as a limit on his travel, also remain in place.
Generally, when a defendant is only accused of a crime, prosecutors can only have them held pending trial if they can show the defendant is a threat to the community or a risk of flight. After a conviction, the burden of proof flips, and the defendant must prove that they are not a risk to the community or a risk of flight.
Assistant U.S. Attorney Steve Ruby asked U.S. District Judge Irene Berger to either detain Blankenship or require him to post an additional $10 million bond to remain free pending sentencing. Berger declined.
Later, Blankenship could ask that any prison sentence ordered be delayed until his appeal is decided.
What are the potential penalties?
Under the federal mine safety law, Blankenship faces up to one year in prison and a maximum fine of $250,000. He could also be sentenced under a separate section of federal law that allows a fine of up to twice the financial loss or gain resulting from the conspiracy.
Prosecutors say Blankenship could also face having to pay tens of millions of dollars in restitution.
U.S. District Judge Irene Berger preliminarily set Blankenship’s sentencing for 10 a.m. on March 23. The judge later delayed the sentencing until 10 a.m. on April 6, one day after the 6th anniversary of the Upper Big Branch Mine Disaster.
Prior to sentencing, the court’s Probation Office will prepare a pre-sentence investigation report. Probation officers will speak to Blankenship’s family members, friends, and others to prepare a detailed history of his life. These reports are provided to the court, prosecutors, and the defendant. They are confidential and filed under seal, but portions of them are often mentioned in legal briefs or during the sentencing hearing, which is held in open court.
The pre-sentence report will make a recommendation about the U.S. Sentencing Guidelines range for the seriousness of the offense and the defendant’s criminal history. The guidelines, set by a judicial branch agency called the U.S. Sentencing Commission, are advisory only. Judges are urged to consider the guidelines but can depart from the sentencing range the guidelines recommend, as long as the sentence does not exceed the maximum term set by statute.
During the sentencing, defendants are given the opportunity to the court anything they believe the judge should consider. Both prosecutors and defense lawyers will file written briefs with their views on sentencing.
Crime victims may also have the right to speak at sentencing, and testimony may also be taken from other witnesses.
Blankenship’s lawyers have vowed to appeal the conviction. In West Virginia, appeals in federal court go to the 4th U.S. Circuit Court of Appeals in Richmond, Va. Initially, appeals are heard by a three-judge panel. Sometimes the panel’s decisions are reviewed “en banc,” or by the full 17-judge circuit.
For criminal cases, the 4th Circuit requires defendants to file a notice of appeal within 14 days after entry of judgment (the sentencing order) by the district court. The appeals court will then set a scheduled for lawyers on both sides to file briefs. The appeals court may also schedule oral arguments – but those arguments, and a decision are many months away.