Dave Dickey
There’s an old adage that the punishment should fit the crime.
As a reasonable, fair, level-headed nation, we don’t want to send jaywalkers to prison.
On the other hand, if someone is found guilty of being part of a 2010 Salmonella Enteritidis outbreak that the U.S. Centers for Disease Control and Prevention reports sickened tens of thousands of people, a reasonable outcome would be a stay in the federal lock-up. Right? But was it criminal?
No, says Quality Egg FCC executives Austin “Jack” DeCoster and his son, Peter. Each man is facing three months in jail after U.S. District Court Judge Mark Bennett found they had created a culture at their company where employees disregarded safety laws, falsified records, lied to auditors and bribed USDA officials.
The DeCosters’ say three months jail time is unjustified, most recently making that argument before a federal appeals court, which had none of it.
In a 2-to-1 ruling the court upheld the jail sentences under provisions of the Park Doctrine.
The Park Doctrine lays out the Responsible Corporate Officer rules of liability under the federal Food, Drug and Cosmetic Act.
It says:
“…a responsible corporate official can be held liable for a first time misdemeanor (and possible subsequent felony) under the Federal Food, Drug, and Cosmetic Act (“the Act”) without proof that the corporate official acted with intent or even negligence, and even if such corporate official did not have any actual knowledge of, or participation in, the specific offense.”
In arguing against prison time, DeCosters’ lawyer Peter D. Keisler suggested that fines and probation are just dandy but that jail time is under the Park Doctrine is unconstitutional and harsh, especially when a corporate executive is unaware of the crimes of their employees — in short, there was not criminal intent.
But in upholding jail time in its initial 2-to-1 ruling, the federal appellate court said RCO still holds sway because it addresses blameworthiness of corporate officers, especially when their actions can cause widespread harm due to negligence. Thus a corporate officer can be found guilty for things he or she should have done but did not do.
The court says the DeCosters personally failed to take steps to ensure the safety of their eggs.
Keisler filed a 22-page brief calling for a rehearing on the sentencing or en banc hearing by the full membership of the 8th U.S. Court of Appeals 8th Circuit.
I imagine the DeCosters are hoping the full 8th Circuit will be more in sympathy with Judge C. Arlen Beam’s minority opinion.
Beam, in voting to throw out the jail sentences, said that prosecutors did not show criminal intent, that the DeCosters did not know what their employees were doing and that when they did know, they recalled millions of eggs.
On its face, this argument could hold sway, but this is hardly the Decosters’ first offense. They have a history of legal troubles in connection with Quality Egg LLC.
As you might imagine, the business community, especially those who have to follow the FDCA, is closely watching the case. And a number of amicus briefs have been filed supporting the DeCosters including the National Association of Manufactures.
Some in the business community fear that the appellate court (perhaps eventually even the Supreme Court?) will ultimately uphold the ruling, opening a floodgate of new FDA Park Doctrine cases where corporate executive defendants can go to jail without mens rea proof, that a defendant acted knowingly and purposely.
But here’s the thing. The DeCosters were more than willing negotiate with the feds to pay almost 7 million dollars, which suggests that fines, even big ones, are not a strong deterrent. This fits a pattern. The DeCosters have spent their whole corporate executive careers settling.
But jail time? The DeCosters say not even one day. And that is a deterrent. The punishment should fit the crime and upholding jail time in the DeCoster case would put other corporate executives on notice that they must do their jobs.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.
This column reflects the writer’s own opinions and not those of Big Ag Watch