In his many high-profile run-ins with government officials over labor and environmental controversies, the now-71-year-old Austin “Jack” DeCoster got used to people wanting to see him jail. But it never happened, and his lawyers now say neither DeCoster nor his son Peter can be sentenced to jail for their involvement in the 2010 food safety crisis that led to the recall of more than one-half billion eggs that sickened thousands. In a ten-page reply that was due yesterday and took the entire day to arrive, defense attorneys for the DeCosters from K Street’s Sidley Austin LLP in Washington D.C., and Dorman, Lustgarten & Troia in Omaha together said incarceration or confinement of their clients would be unconstitutional. The government argued that jail is still an option when the DeCosters come before the federal court for sentencing, a position that is being vigorously opposed by the defense attorneys for both men. In their reply, the lawyers said it is “unconstitutional to deprive a defendant of his liberty solely because he was the ‘responsible corporate officer’ of a company that breached a strict-liability duty. “Indeed, the government has not identified a single case, in any court, in which any American judge has imposed a sentence of incarceration or confinement in a situation like this one, where criminal liability is both strict and vicarious, i.e. where 1) the conviction does not rest on any admission or jury determination that anyone acted with criminal knowledge or intent, and 2) the conviction likewise does not rest on any admission or jury determination that the defendant himself committed any relevant act.” The defense team said that is what distinguishes this case “from the raft of ordinary strict-liability cases” that were cited by the government. In those, they said, the defendant “at least personally committed the unlawful act, even if he did not know at the time that the his conduct was unlawful.” “When confronted with cases like this one which combine vicarious liability, courts have not hesitated to say that modest fines represent the maximum permissible criminal penalty,” they added. Both DeCosters in June pleaded guilty to one misdemeanor count each of allowing adulterated food into interstate commerce. The pleas were part of an agreement with the government. The pleas were to so-called “strict liability” misdemeanors that if taken to trial would not have required the government to prove intent or knowledge. Under the agreement, each man agreed to a $100,000 fine; their Quality Egg LLC family trust plead guilty to a single felony of bribing a federal egg inspector and to two of the strict liability misdemeanors. The trust agreed to pay a $6.8 million fine. But the actual sentencing has been bogged down with appeals of the Pre-Sentencing Investigative Reports (PSIRs) and the mounting legal challenge over whether jail time is on the table. While Sidley Austin attorney Frank Volpe fist questioned whether “Jack” DeCoster could be jailed during court proceedings in Sioux City, IA last spring, his request did not become formal until he filed a sealed motion on Oct. 8. That, along with all arguments on the issue, have since been made public by the Court, and Peter DeCoster’s defense has doubled down on the motion. When Quality Egg LLC was selling eggs contaminated with Salmonella Enteriditis from two Iowa egg production facilities, from January to Aug. 12, 2010, the DeCosters claim they had no knowledge of the problem. In his original motion, Volpe said no court has sentenced any responsible corporate officer to jail for an offense “without a showing of mens rea.” Volpe acknowledges he is concerned about the possibility of a weeklong sentencing hearing at which the government may air “numerous issues not related to Mr. DeCoster’s offence conduct.”