Can Punishment For The Responsible Corporate Officer Doctrine Be More Than A Walk In The Park?

Every lawyer — except lawyers who went to Yale — knows that a crime requires two things: (a) an particular act that (b) was done with a certain mental state. That is, a crime requires both an actus reus and mens rea.

In rough terms, this means that to be guilty of a crime, you have to do a bad thing and know that the thing you’re doing is bad.

Yet there is an exception! For a very special category of crimes you can be guilty of a crime when you didn’t do anything and you didn’t know any thing.

How, you ask, can this be true?

To answer that, consider the sad story of the DeCosters. Jack and Peter DeCoster ran an egg company in Iowa — Quality Eggs.

Quality Eggs, unfortunately, put some eggs that were contaminated with salmonella into interstate commerce. Putting salmonella-contaminated eggs into interstate commerce is, unfortunately, a strict liability crime — a person can be guilty of doing it even if the person didn’t know that the eggs were contaminated. This is a criminal violation of the Food Drug and Cosmetic Act.

So, someone at Quality Egg did the bad act of putting salmonella-contaminated eggs into interstate commerce. And they did it without a guilty mind.

Indeed, according to the statement of facts in the plea agreement that the government stipulated to, the government’s investigation did “not identif[y] any personnel employed by or associated with Quality Egg, including [Jack DeCoster and Peter DeCoster], who had knowledge… that eggs sold by Quality Egg were in fact, contaminated with Salmonella Enteritidis.”

The DeCosters entered a guilty plea to the strict liability offense.

One would think that the DeCosters — busy running the company as they were — wouldn’t have been the ones who actually put the eggs on trucks to go to supermarkets and be distributed. And they weren’t. Yet, even though they weren’t the ones to put the bad eggs into interstate commerce, they were guilty of the crime of putting bad eggs into interstate commerce under the responsible corporate officer doctrine.

What’s the responsible corporate officer doctrine? In some cases, where an executive or manager has enough managerial authority that the person who committed an offense was within his or her line of authority, then that manager can be responsible for the underlying crime even though he or she didn’t actually do the criminal act. The big Supreme Court case in this area is United States v. Park — which is why this is often called the “Park doctrine.”

So, the DeCosters were convicted of an offense where they didn’t do the bad act — putting the bad eggs into interstate commerce — and they didn’t have a guilty mind. The only thing they did was have a job.

All of that so far is not legally controversial. It’s a straightforward application of the law. It may be lousy policy, but it’s straightforward law.

The Supreme Court has blessed this kind of offense in the past, saying, in essence, that, yeah, while it’s good to have both an actus reus and mens rea, it’s ok to have neither when the public welfare is at stake and when the penalty is really small.

So, for example, if the executive is getting a fine or a little bit of probation and a misdemeanor conviction, the Court doesn’t think that’s so bad when you’re talking about eggs that can make people sick.

What makes the DeCosters so interesting is that they didn’t just get a fine or probation. They were given prison time. Sure, only three months, but that’s still three months longer than anyone wants to spend in prison, and it’s three months longer than the Supreme Court has licensed for this kind of crime.

The DeCosters appealed the sentence to the Eighth Circuit. My colleague Scott Bernstein and I wrote an amicus brief, with the National Association of Manufacturers and the Cato Institute, arguing that this sentence is unconstitutional — that it’s a bold and scary extension of the responsible corporate officer doctrine. (There’s a great description of the case at the Cato blog too.)

Whether or not you agree with the Park doctrine, the logic behind it is the same as that behind strict liability in civil areas: if you’re doing something that’s particularly risky and you have a better ability to prevent that risk that someone else, you’re held to a standard to prevent that risk that’s higher than mere negligence.

When it comes to paying cash — either to compensate an injury or a fine — that makes sense. But when you’re paying with your freedom, it’s a completely different matter.

And hopefully the Eighth Circuit will decide it’s unconstitutional.