No sooner had Robert M. Gill received his get-out-of-jail-free card than he was back at it again. One of a record 1,715 felons to have their lengthy jail sentences commuted by President Barack Obama, Gill celebrated his dumb luck — sudden release from his life-imprisonment term for a major narcotics-trafficking conviction — by attempting to sell two pounds of cocaine. He was captured by Texas police after a violent collision at the end of a high-speed chase.
Having inevitably done the crime, he’ll now probably do the time that should never have been interrupted. Obama justified the release of Gill and hundreds of hardened criminals on the laughable fiction that the federal penitentiaries overflow with “non-violent drug offenders.” You’re supposed to imagine jails teeming with sad-sack Millennials nabbed while toking on a joint behind the local Starbucks. Actually, it is settled law that guns are “tools of the trade” of drug dealing (which is why the cases typically feature evidence of weaponry — and often separate charges for deploying weapons in protection of the lucrative cash business). A quick perusal down the long list of Obama commutations, which includes several gun crimes along with drug offenses, puts the lie to the convict-as-victim storyline. Heather Mac Donald is right: “Prison remains a lifetime achievement award for persistence in criminal offending.”
The vehicle for this perversion of justice is known as the “responsible corporate officer” doctrine. The Supreme Court, which created it, may soon have the chance to revisit and bury it. The Justice Department, now under the direction of Attorney General Jeff Sessions rather than Obama’s anti-corporate zealots, should provide the shovel.
It is a bedrock principle of the criminal law that there may not be liability for a bad act in the absence of bad intent — mens rea. In fact, this is the principle that FBI director James Comey was purporting to defend — not very convincingly — when the Obama Justice Department strained to avoid indicting Hillary Clinton for mishandling classified information. The requirement of mens rea for criminal liability does not mean absent-minded wrongdoers are off the hook for the damage they cause, not by a long shot. We have a very elaborate civil-justice system to address just such harms. It is not unusual for civil judgments to run into the tens of millions of dollars. If the suffering caused by a corporation is significant, civil lawsuits, including lawsuits brought by the Justice Department and government regulatory agencies, can put the company out of business.
The “responsible corporate officer” doctrine is tailor-made for scalping. It holds that business executives can be held criminally liable for a company’s violation of federal food, drug, and cosmetics standards even if they were not complicit in any wrongdoing. By the reasoning of the wayward theory, the executive’s position carries with it the authority and responsibility to prevent misconduct — even misconduct about which he or she has no knowledge and has not in bad faith consciously avoided knowledge.
The doctrine arose out of an ugly 1943 case in which a pharmaceutical company sold misbranded and adulterated drugs. The government decided to prosecute the company president on a misdemeanor. Notwithstanding the absence of evidence that he was personally aware of any misconduct, much less involved in it, the company president was convicted and sentenced to a $500 fine, in addition to 60 days’ probation. In United States v. Dotterweich, the Supreme Court upheld the conviction and sentence, throwing overboard foundational criminal-law principles on the specious rationale that “modern industrialization” had left the public so helpless that the “conventional requirement for criminal conduct — awareness of some wrongdoing” had to be supplanted by allowing the imposition of penalties “upon a person otherwise innocent but standing in responsible relation to a public danger.”
For the Left, there must be a scalp for every business-related accident. The ‘responsible corporate officer’ doctrine is tailor-made for scalping.
What were the limits on this new license to convict the innocent? Justice Felix Frankfurter opined that they would be “too treacherous to define,” choosing instead to trust “the good sense of prosecutors, the wise guidance of trial judges, and the judgment of juries.” Of course, the point of the criminal law’s protections — the requirements that guilt is personal, that laws must put people on fair notice of what personal actions are forbidden — are precisely meant to ensure that people are not at the tender mercies of prosecutors (whose “good sense” can be overcome by ambition and ideological activism) and the emotionally driven crapshoot that a jury trial can be.
Subsequently, the Court endeavored to reinvigorate the mens rea principle, indicating that “strict liability” prosecutions are disfavored. Still, the responsible-corporate-officer doctrine endured. Indeed, it is also known as the “Park doctrine” owing to its reaffirmation in the 1975 case of United States v. Park, in which the president of a national food-store chain was convicted when the company distributed contaminated products, even though he had no knowledge of or participation in any wrongdoing. In reluctantly endorsing such prosecutions, the courts have emphasized that the sentences imposed — mainly fines — have been negligible. Thus, the reasoning goes, they do not create the stigma that attaches to a traditional criminal conviction.
So, the Supreme Court lays out a roadmap to criminal conviction of corporate executives, with no requirement to prove that anyone did anything wrong and with no real limiting principle. Then the Obama administration’s social-justice warriors take over the Justice Department. What could go wrong?
About what you’d expect. The Washington Legal Foundation (WLF), which does stellar work in defense of free enterprise, relates the details in a brief recently filed in the Supreme Court. Then–attorney general Eric Holder called for extending the responsible-corporate-officer doctrine from food and drug cases to those involving the financial-services industry, urging that when a corporation does wrong, “the buck needs to stop somewhere” — as if such wrongdoing did not cost the companies, their insurers, and ultimately their consumers megabucks. At the Obama Food and Drug Administration, the chief litigation counsel promised that “very soon . . . some corporate executive is going to be the first in a long line” of such prosecutions. The FDA further told the Senate to expect more cases.
WLF also shows that a surge in prosecutions was predictably “accompanied by the imposition of increasingly severe penalties on corporate officers” — months of imprisonment, fines running up to a million dollars (so far), and such added terms as the exclusion of these executives from their industries for years on end. The conduct involved, as the U.S. Attorneys’ Manual takes pain to instruct prosecutors, “does not require proof of fraudulent intent, or even of knowing or willful conduct” — or even that the targeted executive engaged in any “violative conduct.” Yet the penalties now carry exactly the gravity and stigma of serious criminal convictions.
The WLF filed its brief because the Obama Justice Department prosecuted Jack and Peter DeCoster, the owner and chief operating officer of a leading Iowa egg-producing firm, Quality Egg. A salmonella outbreak had been traced to one of the company’s plants. The DeCosters, who were wholly unaware of the conditions responsible for the outbreak, and who had taken substantial, expensive steps to comply with federal egg-safety standards, promptly took responsible action: They issued a voluntary nationwide recall for hundreds of millions of eggs and fully cooperated with the FDA’s investigation. Quality Egg and its insurer ultimately paid $15 million in fines and damages, and the two executives agreed personally to pay an additional $83,000 in restitution.
Yet the Obama Justice Department charged them anyway — even as it conceded that they had no knowledge that any eggs sold were contaminated. In pleading guilty to a misdemeanor, the DeCosters argued that the Constitution prohibits incarceration in the absence of proof that a defendant knew or actively participated in any wrongdoing. The judge, relying on the aforementioned Supreme Court precedents, rejected their claim, sentencing each of them to three months’ imprisonment and a criminal fine of $100,000. A sharply divided panel of the Eighth Circuit appeals court upheld the sentences.
The DeCosters have sought Supreme Court review. The Justice Department, now run by the Trump administration, is due to file its response in mid March. To this point in the administration’s early days, it has admirably stood for a return to the rule of law in immigration enforcement. Attorney General Sessions could strike a blow for the return of constitutional principle by encouraging the high court to take the case, throw out these groundless convictions, and put an end to the responsible-corporate-officer doctrine.
I don’t know about making America great again. But making America America again should, at the very least, restore the idea that real criminals should serve their sentences and innocent people should never be sentenced in the first place.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.