In April 2015, a federal judge sentenced the father and son former executives of the inaccurately named Quality Egg — the company behind a salmonella outbreak that sickened around 60,000 people — to three months in prison, but neither of the two men have begun to serve their sentence, hoping the U.S. Supreme Court would see things their way. But now that the Supremes have snubbed the eggs-executives, it’s finally time for them to do their brief stints behind bars.

Austin “Jack” DeCoster and his son Peter each agreed to plead guilty to introducing adulterated eggs into interstate commerce for the Quality Egg products that were tainted with salmonella.

In the 2015 sentencing memorandum [PDF], prosecutors noted Quality Egg staff “made significant misrepresentations regarding its food safety and sanitation practices and procedures, and manufactured false documents” required by an independent auditor. The company falsely claimed that it performed flock testing to identify and control salmonella, but government inspectors say no flock testing was ever done.

In addition to bribing a USDA inspector to release eggs that had been flagged for failing to meet minimum standards, Quality personnel deliberately mislabeled eggs with false processing and expiration dates in an apparent attempt to mislead state regulators and retail customers about the age of these eggs.

Though prosecutors never definitively proved that the DeCosters knew that Quality Eggs was shipping out salmonella-tainted eggs, the court found that the company’s decisions to ignore positive salmonella environmental test results, to not test eggs in the wake of such results, and other bad behavior was sufficient to create a “work environment where employees not only felt comfortable disregarding regulations and bribing USDA officials, but may have even felt pressure to do so.”

Despite their unconditional guilty pleas, both father and son filed an appeal, arguing that not only was their sentence unconstitutional but so was the underlying law, which allows the government to hold company executives criminally responsible if they have the responsibility and authority to prevent or fix food safety violations but fail to do so.

The DeCosters argued to the Eighth Circuit Court of Appeals that their constitutional rights to due process were violated by being sentenced to prison for crimes they did not personally commit. They contended they were being held vicariously liable for the actions of people who worked under them.

The Eighth Circuit disagreed in 2016 [PDF], pointing out that Jack and Peter DeCoster weren’t being held accountable simply for the actions of others, but because the DeCosters had a responsibility under the Food, Drug, and Cosmetic Act (FDCA) to prevent or remedy the dangerous actions of their staff.

“[A]s owner of Quality Egg, Jack decided which barns were subject to salmonella environmental testing, and as chief operating officer, Peter coordinated many of the company’s salmonella prevention and rodent control efforts,” explained the Eighth Circuit. “Neither of the DeCosters claim to have been ‘powerless’ to prevent Quality Egg from violating the FDCA.”

The DeCosters were familiar with the unsatisfactory conditions at their Iowa facilities, said the appeals panel, but “failed to take sufficient measures to improve them,” and thus knew or should have known of the risks involved and the remedies needed.

The fact that the DeCosters did not explicitly know that the eggs were tainted was also not sufficient to make a due process claim, said the Eighth Circuit, noting that “The language in the FDCA and Supreme Court precedent interpreting the statute support the conclusion that defendants are not required to have known that they violated the FDCA to be subject to the statutory penalties.”

Separately, the DeCoster duo made the argument that their sentences violated their Eighth Amendment protections against excessive penalties, but the appeals panel was once again not convinced, noting that the three-month sentences are only a fraction of the maximum allowed by the FDCA even though the DeCoster’s failure to act led to an estimated 56,000 illnesses, including some that resulted in severe and long-term injury — all for just eating an egg.

The DeCosters weren’t done yet. In 2016 they filed a 232-page petition [PDF] asking the U.S. Supreme Court to hear their case, effectively repeating the same claims that failed in their earlier appeal.

But on May 22, the Supremes declined to hear arguments in the case, allowing the Eighth Circuit ruling to stand, and sending it all back to the District Court judge to finalize the sentencing details for the DeCoster father and son, now aged 83 and 53, respectively.

So last week, the judge ordered [PDF] that Peter DeCoster must begin his three-month sentence at a federal facility in South Dakota in the weeks to come. The exact window for beginning the sentence is still to be set by the Bureau of Prisons.

The two DeCosters won’t be in prison at the same time, however. Jack’s sentence can not begin until 30 days after his son has been released. The older DeCoster will do his three months in a facility in New Hampshire. Both former executives will have a year of supervised release after their time in prison.

[H/T AP]

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