Just after the federal government put a former food industry CEO in prison for the longest term ever handed down for a food safety-related crime, a top official in the U.S. Department of Justice (DOJ) has filed arguments to make jail time for such executives more routine. Benjamin C. Mizer, principal deputy assistant attorney general of the United States, has weighed in on the Austin (Jack) and Peter DeCoster case, in which a trial court judge sentenced the two shell egg executives (who are father and son) to federal prison sentences of three months each. The DeCosters were the Iowa egg producers responsible for the Salmonella enteritidis (SE) contamination of shell eggs, which sickened thousands of consumers in 2010. Together with the family’s Quality Egg LLC, they agreed to pay $7 million in fines in April 2015, but they challenged the court’s ability to impose any jail time. Their sentences by a federal judge in Sioux City, IA, are currently on appeal to the Eighth Circuit U.S. Court of Appeals in St. Louis. A 60-page brief DOJ filed on Sept. 18, 2015, was just approved for release by the appeals court. Mizer starts off by agreeing with the attorneys for the DeCosters by calling upon the Eighth Circuit to hold oral arguments in the case. http://www.dreamstime.com/stock-images-chicken-farm-image23486264The DOJ brief states that federal investigators discovered that the Quality Egg facilities “were rife with insanitary conditions, including widespread Salmonella contamination, rodent infestations, and manure oozing from the barns.” “Investigators also learned that the DeCosters had long been aware of their facilities’ Salmonella problem; knew how to address it and failed to take steps necessary to prevent contaminated eggs from entering the marketplace,” it adds. The DeCosters pleaded guilty to criminal charges for their roles in causing the introduction of adulterated food into interstate commerce, but the jail sentences are being contested. DOJ wants the appeals court to uphold the three-month jail sentences that were imposed by the trial court. “Moreover, the Constitution does not preclude Congress from allowing jail sentences as punishment for misconduct affecting the health and safety of all Americans, and the district court’s were both procedurally and substantively reasonable,” the brief states. The two issues in the appeal are over whether the three-month sentences constitute cruel and unusual punishment and whether the sentences are “procedurally and substantively unreasonable.” At the time of the Salmonella outbreak stemming from eggs produced by the DeCosters, the family is alleged to own six feed mills and five egg farms in Iowa, with 74 barns and housing for 5 million year-old chickens. At the time, egg tests revealed that all of Quality Egg’s farms were “producing SE positive eggs” at a rate of contamination “approximately 39 times higher than the current national incidence rate,” the government appeals brief states. At the same time, the barn environments were pervasively contaminated, with 63 percent of the wash water, feed samples, feed ingredients and pullet houses showing widespread SE contamination. During the investigation, it was found that the DeCosters had long known that their facilities were contaminated with Salmonella enteritis and that they had ample knowledge of the need to prevent it. The brief points to the fact that, during the 1990s, the DeCosters had implemented a wide range of Salmonella-prevention measures in Maine. At the request of state officials, they had also hired poultry disease specialists to assist with both Salmonella and rodent control measures. However, they failed to successfully employ those measures in Iowa, the brief notes. Instead, the government alleges that the DeCosters created false records and misrepresented their practices to buyers, such as Walmart. They point out that one employee went so far as to bribe a USDA egg inspector to release red-tagged pallets of eggs. And the company mislabeled eggs with false production and expiration dates. The brief notes that both defendants said that a sentence of incarceration or other confinement would be unconstitutional because neither corporate official had any knowledge of the violations or about the conduct underlying the offense. The DeCosters argue that custodial sentences based on “strict liability” would violate both the Due Process Clause and the Eighth Amendment of the U.S. Constitution.

Jack and Peter DeCoster
In April, both of the DeCosters were sentenced to $100,000 fines, three months each in prison, and one year each of supervised probation. In addition, Quality Egg was fined $6.8 million. The three-month jail sentences are in the middle of federal sentence guidelines. The trial court judge found that jail time was necessary “for specific deterrence.” DOJ argues that “tens of thousands” of people were injured by the corporate officials’ crime of introducing adulterated food into interstate commerce, and that the DeCosters were long aware of the problem. “The DeCosters are not being held ‘vicariously’ liable for the conduct of their employees, they are being held for their owns acts and omissions in causing a massive, nationwide outbreak of food-borne illness,” Mizer states. He notes that three months of jail time falls “squarely within the statutory range authorized by Congress … .” DOJ states that the prohibition on jail time asserted by the DeCosters simply does not exist. The department also makes extensive arguments that neither the Eight Amendment nor the Due Process Clause “preclude the DeCosters from custodial sentences.” “Defendants thus have failed to carry their burden of showing that the district court abused its discretion in any respect,” Mizer concludes. Attorneys for the DeCosters have until Oct. 9 to file a reply brief. Oral arguments before a panel of judges from the Eighth Circuit will likely occur in late 2015 or early 2016. The DeCosters remains free on bond until the appeals court makes a decision.

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