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What should we do to food manufacturers who produce unsafe food? Under a 1975 U.S. Supreme Court ruling, the president of a food corporation was held criminally liable for the unsanitary conditions of his warehouses. He did not personally deal with the conditions of his properties but as the “responsible corporate officer” was found to be criminally responsible. He did not go to jail and paid only a modest fine. He challenged the fine but a divided Supreme Court upheld it. Park v. U.S. 421 U.S. 658 (1975).

The so-called Park Doctrine has been a threat to food executives for more than forty years. It has not been extended to impose prison terms on corporate officers who may have no intent to do harm, what the law calls “mens rea,” but still are in charge of companies whose tainted foods do bad things to consumers. That issue may well get before the Supreme Court as soon as next term.

Jack DeCoster and his son Peter ran one of the largest egg operations in the country. There were about 2,000 reported cases of salmonella-related illnesses traced to their eggs. The feds went after them personally and their company. The company plead guilty to several charges (yes, companies can be charged criminally) and paid substantial fines. The DeCosters also plead guilty to being the “responsible corporate officers” in charge of the egg operations and received not only fines but also three months in prison. They challenged the constitutionality of their sentences as a violation of their Fifth and Eighth Amendment rights.

The sentencing judge rejected their claims as did the Eighth Circuit Court of Appeals, albeit on a 2-1 decision. They will surely ask the Supreme Court to take the case and rule that in the absence of some direct involvement or intent, you can’t send a food company official to jail for a single day, even if their company’s products have harmed the public.

Some might say that the DeCosters got off easy with just a three-month sentence. There have been reported cases out of China of food factory officials being executed for this kind of thing. In England, a restaurant owner got six years when a customer who specified NO PEANUTS in his dish died from eating a dish containing peanuts. The restaurant owner was not even on the premises but had apparently used peanuts instead of almonds in a dish as a cost-saving measure.

The egg case is a tough one because the facts are messy. The company had a history of labor violations, environmental issues, even a case of bribery of a government official (never traced directly to one of the DeCosters). The sentencing judge had that to bolster his sentence. But the DeCosters had given a lot of money to charity and the son had been a missionary overseas.

You read it here, my prediction: the Supreme Court will hear the case and rule that, under the particular circumstances of the DeCosters, the three-month sentence was not cruel and unusual. Assuming there is a full court by then, it will be a 5-4 decision. And the Cubs will win the World Series.

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