One option the U.S. Food and Drug Administration (FDA) has pursued since at least 2010 in criminal prosecutions of corporations and officers is to bring charges that do not require proof that defendants were in a criminal state of mind. However, it’s an option that may be ending soon. FDA’s policy — seen recently in several criminal cases — will cease to be an option if Congress decides to make so-called “state of mind” proof the default requirement in all federal criminal cases. That would mean there would have to be evidence of a mental state, or intent, to commit a crime. capitolUSIn pursuing justice for damaging outbreaks, government attorneys in recent months have accepted guilty pleas from Eric and Ryan Jensen (cantaloupes), Austin (Jack) and Peter DeCoster (eggs) and ConAgra Grocery Products Co. (peanut butter) simply because these executives and corporations were in charge when their contaminated products reached the marketplace. Under these “strict liability” criminal misdemeanors, the government currently does not have to prove that a corporation or its officers had any advance knowledge or intent for what happened. Changing the rules so prosecutors would be required to prove a “knowing” state of mind has found its way into a growing sentencing reform movement that may be coming to a head in both Congress and at the White House. Sentencing reform started out from a liberal-libertarian coalition formed to ease up on “mandatory minimum” prison sentences, especially for non-violent drug users. Those involved have found common ground in reforms to cut costly federal prison populations while advancing treatment over punishment for those with drug problems. And it’s going on at the highest levels. There were reports this week of a fourth meeting on the issue between Valerie Jarrett, President Obama’s top advisor, and Mark Holden, general counsel for Koch Industries. Some say that’s how sentencing reform is turning into judicial reform that could become one of Obama’s main legacies. U.S. Rep. James Sensenbrenner (R-WI) is the author of one bill containing language that eliminates the strict liability misdemeanor. However, pushback is coming from those who question why white collar crooks should benefit from the reforms and who say that ignorance of the law should never be an excuse. The U.S. Department of Justice is also in the U.S. Court of Appeals for the Eighth Circuit in St. Louis defending the DeCoster appeal that seeks to strike down prison time or any loss of liberty as being unconstitutional for any conviction under one of those “strict liability” criminal misdemeanors.

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