Indulge me for just a moment in an exercise in whimsy. Except as will be expressly described below, any resemblance to real persons or substances, living or dead, is purely coincidental.

Imagine if you will that in the processing of a particular foodstuff, unless care is taken during certain steps, the foodstuff will provide the consumer with a mild hallucinogenic experience. The risk of this is well-known in the industry, as are the steps–and the costs of those steps–needed to avoid this. In larger quantities and greater refinement, the drug has a serious street value and it is in fact on Schedule I of the drug lists, meaning you can’t get it even with a prescription.

A major producer of this particular foodstuff is well aware of all of these facts. But certain of its lower level managers have taken it on themselves to use these facts to boost profits, and with it their job security and remuneration. By cutting corners on costs, they have increased margins. By making it known through back channels that products including the drug are widely available under their brand names in locations near certain college campuses, they have boosted sales. On occasion, when they have been close to discovery, they have taken funds from the company’s petty cash and used them to bribe, successfully, certain federal drug agents.

Senior management of the company knows only the following: that the drug can attach to the product and give a mild high, that keeping the product free of the drug is expensive, that if the expense is not incurred, sales will suffer because some properly tested product will need to be destroyed and that there is demand for the adulterated product, particularly on college campuses. Had they looked at their financial statements with any degree of curiosity, they would have seen expenses lower, and revenue higher, than they should have been for the given level of production if the steps needed to avoid selling drug-containing products had been taken.

Now imagine the operation is exposed. All the lower level managers turn state’s evidence and testify about what senior management knew or should have known. Senior management pleads guilty and the prosecution successfully demonstrates that they were subject to the drug kingpin statutes, which mean they can be imprisoned for between 20 years and life, with no possibility of parole (if someone had died, they might have been given the death penalty).

Now let’s leave my imagination and return to reality. The only facts you need to change are these: the product, eggs, was sold not with a hallucinogenic drug but with salmonella enteridis (“SE”), which is poisonous; rather than being pushed on college campuses, the products were simply sold in refrigerated cases all over the country, and thousands were sickened by them. Millions of eggs had to be recalled. And senior management, Austin DeCoster and his son Peter, were prosecuted not under the drug kingpin statutes but under the responsible corporate officer doctrine under the Federal Food, Drug and Cosmetic Act of 1938, having pled guilty to having sold shell eggs containing SE across state lines. They were fined and, as you may have read, sentenced to three months in literally the jail of their choice.

Most commentators have called this an important signal and great deterrence to future actors and the like, without pointing out the absurdity that the penalty for doing this by poisoning people is orders of magnitude less than it might have been if all they did was to provide them a little buzz. But this wasn’t sufficient for the DeCosters and their lawyers.

They argued (obviously unsuccessfully) that any prison sentence would be unconstitutional. The most amazing part of their argument was this:

The rule of liability that the government urges would instead allow business executives to be sent to prison even if they had done everything in their power to prevent the offense from occurring. Such an irrational deterrence theory is wholly insufficient to justify a prison sentence for a defendant whose only link to the offense is his status within a corporate organization.

(emphasis original). As Judge Alex Kozinski of the Ninth Circuit said recently in the Barry Bonds case, it is a rhetorical trick of lawyers, in answer to a hypothetical, to reply, “That is not this case.” Well, that is not this case. The very suggestion that these defendants had done “everything in their power to prevent the offense from occurring” is a slap in the face to the victims of these crimes.

The court concluded,

Even after SE was detected in Quality Egg’s Iowa facilities, the defendants failed to follow the methods used at their Maine plants to resolve that problem, such as depopulating, cleaning, and retesting the barns. The matter was only addressed after the 2010 SE outbreak took place. Together, I was persuaded that the defendants had knowledge of the increased risk of SE in the processing plants, and did not minimize SE contamination in their plants, despite having knowledge of how to effectively deal with SE contamination.

In addition,

the record supports the inference that the individual defendants created a work environment where employees not only felt comfortable disregarding regulations and bribing USDA officials, but may have even felt pressure to do so. Because the offending parties were never disciplined for their actions, according to the record, it does appear that their conduct was condoned. In addition, the parties stipulated that a Quality Egg manager “would testify that [Austin] DeCoster instructed him” that Quality Egg should not divert more than “1-2% of the eggs based upon ‘checks.’”

That’s the opposite of “everything in their power.” That’s “they had it in their power and they didn’t exercise the power.” And a little boy is wearing metal teeth until his jaw stops growing as a result of what they did.

Additionally, the court pointed to “the philosophical justification underlying the defendants’ punishment, i.e., deterring other corporate officers from similar criminal conduct”. In other words, responsible corporate officers are supposed to make sure that food is safe; imposing no jail term would be insufficient to make other officers feel this requirement has real bite.

Moreover, the defendants’ argument, whether premised on the due process clause or on the Eighth Amendment, were unavailing and, the court, indicated, misleadingly presented. They relied on an opinion of Justice Cardozo when he was still a state court judge in New York, a dissent by Justice Stewart in a U.S. Supreme Court case that had upheld penalties under the FDCA and an Iowa Supreme Court case. The district court judge concluded they had “misrepresented” two of those cases and “mischaracterized” the third. Not surprisingly, this didn’t help the defendants to prevail.

There is some amount of validity to the idea that crimes that include no criminal intent should, in appropriate circumstances, lead to no jail time and no “grave damage to an offender’s reputation.” But this is not that case. We all know that one may do everything possible to avoid introducing tainted food into commerce and on occasion it won’t be enough. Sometimes the sampling doesn’t catch the ones that are tainted. New pathogens are found that never were known before. Bad things happen to good people, unfortunately.

The defendants’ argument here, though, is essentially that all those who make the efforts to provide us with a safe food chain are fools. All you need to know is remain ignorant. It is a good thing that this argument did not prevail.