• July 7, 2016

Get Out of Jail FreeUpdate (July 7, 2016): “Egg Executives Lose Appeal Over Prison Sentences.”

Original post (October 16, 2015): The United States has the highest incarceration rate in the world and the vast majority of prisoners in the United States are in prison for non-violent offenses. Many people, world-wide, regard this as nothing less than a repugnant, shameful, national tragedy that is largely ignored by most Americans.

There is a sense among many citizens that, if you are not poor, if you are not a person of color, if you are not marginalized by mainstream U.S. culture based on poverty, mental illness, addiction, or on some other reason(s), you are likely oblivious to this extraordinary situation because you are unlikely to be personally or familially affected by it.

And the sense of irrationality, inefficiency, or injustice is all the more striking because people note that our society seems to take a dramatically different view when it comes to wrong-doing by corporate executives — wrong-doing that can result in the destruction of thousands of lives, either literally or economically.

  1. Is there a problem here?
  2. Should more guilty corporate executives go to prison or should fewer non-violent “offenders” for far smaller-scale “offenses” be going to prison?

The U.S. Court of Appeals for the Eighth Circuit will soon hear oral argument in the fully briefed case of United States v. DeCoster, a challenge to three-month prison sentences to Peter and Jack DeCoster (father and son), two executives from Iowa-based Quality Egg arising out of a salmonella outbreak (opening brief, response brief, reply brief). It is estimated that 56,000 people were sickened by the salmonella outbreak that originated from low quality Quality Eggs.

Defendants are represented by a legal rock-star, Peter Keisler, along with a veritable battalion of lawyers from the uber-prestigious law firm, Sidley Austin, LLP (and Stuart Dornan, a Nebraska criminal defense lawyer for Peter DeCoster) who, in effect, argue that their clients had no knowledge of any wrong-doing at any time, no criminal intent, and that it would violate the U.S. Constitution to jail their clients under these circumstances (the Due Process Clause and the 8th Amendment’s prohibition on “cruel and unusual punishment”).

But lawyers for the United States respond that “the district court found that defendants both knew of, and were involved in, the circumstances underlying the contamination, and the court’s findings are supported by the record.” According to lawyers for the United States, “The [district] court found that these sentences were justified in light of the appalling disregard for public health and safety shown by the DeCosters and the company they controlled.”

Defendants reply that the district court’s findings were “20/20 hindsight,” that criticism of Quality Egg was essentially reverse-engineered after the fact, that the district court’s determination’s were simply wrong, and that “more is required to demonstrate a criminally culpable mental state.” (Defendants never expressly argue that they are scapegoats but their arguments obviously boil down to this.)

William Holman Hunt, The Scapegoat (1854)

William Holman Hunt, The Scapegoat (1854)

So, getting back to the questions (“Is there a problem here?” and “Should more guilty corporate executives go to prison or should fewer non-violent “offenders” for far smaller scale “offenses” go to prison?”), to me the answers are fairly obvious.

First, yes, there is a problem here. “Incarceration nation” is a moral and economic disaster and a national shame.

Second, yes (with a twist). More guilty corporate executives go to prison AND fewer non-violent offenders for far smaller scale offenses should go to prison.

Let’s all stop and take note of the breath-taking fact that Peter and Jack DeCoster have SEVEN lawyers on their brief, that, without the slightest doubt, their legal fees exceed $100,000, and very possibly in excess of $750,000 to argue that their 90-Day sentences are “cruel and unusual” (before the district court and on appeal).

Future generations will decide what, in today’s United States, is “cruel and unusual.” And I would suggest to you, they might, in fact, find aspects of the DeCosters’ situation to be appalling, but not for the reasons that the DeCosters’ lawyers so superbly advocated.

Finally, foodborne illness plaintiffs’ lawyer, Elliot Olsen of Pritzker Olsen weighs in:

The DeCosters are getting exactly what they bargained for.  While they argue that they did not intend for a massive amount of contaminated eggs to reach the consumer, they forget the egregious nature of their conduct.  In August 2010, government inspectors found numerous appalling conditions in the DeCoster operations including, dead rodents and frogs in laying and production areas, massive manure piles, improper sanitation of equipment, and Salmonella bacteria in the water and feed.  The DeCoster eggs tested positive for Salmonella at a rate 39 times higher than the national average and conditions on the farm ultimately required euthanization of every laying hen.  The DeCosters also falsified records for government inspectors and lied to customers about sanitary conditions.  To say they did not intend the result strains credulity.


Leave a Reply

Your email address will not be published. Required fields are marked *