Criminalizing Aviation Accidents Only Assures Repeats

On the clear, late afternoon of Sept. 29 , two sophisticated jets approached each other along an airway known as UZ6. Their combined speed was in excess of a 1,000 miles per hour. Both were at 37,000 feet over the Amazon jungle, and neither set of pilots were aware of the other.

No alarms went off. No air traffic control warnings were given. And no rules were broken because both crews had climbed to their assigned altitude.

In a micro-second, the left, upturned "winglet" of the brand-new Embraer Legacy 600 business jet sliced into the left wing of the Boeing 737. The Embraer's pilots knew only that an explosive force of some sort had rocked them, and that they now had a marginally controllable airplane.

For the pilots of the commercial airline flight known as Gol 1907, however, the situation was far worse. Their essentially new Boeing 737 was becoming uncontrollable. As the business jet they'd hit limped toward an emergency landing, the 737 impacted the dense forest below. All 137 people aboard died.

Within hours of the crippled business jet's safe landing at an airfield just north of the collision point, the Brazilian government began investigating the accident with a painfully obvious emphasis on finding someone to blame, rather than finding an explanation for the tragedy.

The passengers and owner of the damaged Embraer 600 -- held and questioned for 36 hours -- were eventually released.

But even as another arm of the Brazilian government began to suspect that the crash had been nothing more than a tragic accident and not a result of any purposeful or negligent act by either set of pilots, an overzealous prosecutor was asking a Brazilian court for authority to confiscate the U.S. passports of the two American pilots.

In the weeks afterward, Brazilian authorities confronted the truth -- that their own air traffic controllers had made a massive human error by placing the two jets at the same altitude in opposite directions along the same airway.

Yet no effort was made to present that evidence to the court and release the crew. Instead, the two American pilots -- both personally devastated over the loss of the 737 -- found themselves threatened with prosecution for 137 counts of manslaughter.

Beyond the outrage that Brazilian officials have richly earned, Brazil's willingness to criminalize an aviation accident also dealt a serious blow to aviation safety worldwide. Why? Because most air accidents result from unintended human mistakes, and the only way we find out about such mistakes, and give ourselves the chance to change our human systems in order to prevent further incidents, is by asking surviving crew members to speak openly.

But, if telling the truth about your own errors may land you in prison and ruin your life, who in their right mind would rush to give a prosecutor information that could be used against you? The result is that the mere threat of criminal prosecution for mistakes made in the cockpit (or the maintenance hangar or the control tower) utterly shuts down the flow of vital safety information we need.

When a pilot flagrantly disregards rules or procedures or instructions and knowingly puts his or her passengers and the public below at risk, it's "pilot error."

When a pilot fails because he or she is human -- failures such as starting a takeoff on a runway clearly too short to sustain flight (such as in Lexington, Ky., earlier this year) -- the problem is "human error." The two are markedly different.

Human error problems account for more than 85 percent of all aviation accidents. Disasters often result from pilots being imperfect, making mistakes despite their best efforts. Blaming humans for being human is at once absurd and wholly ineffective in preventing accidents.

The best way to prevent the same human errors from happening in the future is to understand everything we can about how the system supported the error, and then change that system to safely absorb such errors.

Criminal prosecution of pilots for making human errors only shuts down the flow of information we need to get even safer; it does nothing to prevent recurrences.

This does not mean that a pilot who purposefully does something unsafe (such as drink and fly) should not be held criminally liable. Subjecting such fringe-element airmen to prosecution in no way worries the 99-plus percent who would never do such things.

But equating human mistake with crime, as some nations have tried to do too often over the years, is a trend that must be stopped cold.

As the internationally respected Flight Safety Foundation said just this week in a joint resolution issued in response to Brazil's outrageous behavior: "...criminal investigations and prosecutions in the wake of aviation accidents can interfere with the efficient and effective investigation of accidents and prevent the timely and accurate determination of probable cause and issuance of recommendations to prevent recurrence." (