The standard criminal law paradigm goes something like this. Big Louie walks into a bar and bops somebody on the nose, for which he could end up in jail for a year. If the guy is hurt bad enough, Big Louie could face a 5 year stretch in the pen. If he uses a deadly weapon, a pool cue, say, he can be put away for 15 years. And if the guy dies, in any of the 3 scenarios, Big Louie is looking at life behind bars.
The essence of this centuries-old paradigm is the emphasis placed on harm: the more damage you do, the greater your sentence will be. That very analysis is what led prosecutors to seek criminal charges in this case. Imagine, for example, if Big Louie put something in the water supply that caused 9 deaths and severe pain to 714 people, mostly children and the elderly (i.e., the amount of harm caused by the poisoned peanuts). We would have no problem imagining the public outcry to to lock him up and throw away the key, or worse.
So why isn’t there such a public outcry over the deeds of Stewart Parnell? In part it’s because we have a hard time imagining men in suits organized in corporate form being thrown in prison for something they did at work: it’s just not something we see very much. In greater part, however, it’s because of the state of mind we require of a wrongdoer before we think about locking them up: we require that they intend to cause harm. But in this case Parnell neither intended to cause harm nor even seemed to realize that harm had in fact occurred. So the Department of Justice is dramatically shifting gears with this prosecution: they’re going after him because (1) he knew he was breaking food safety rules, and (2) therefore, he should have foreseen that serious harm, even death, could have occurred, as, indeed, it did.
This is not the first time the criminal law has staked out new territory for itself. Beginning in the 1990s, for example, prosecutors started going after perpetrators of domestic violence. It took a long time to get to where we are today, but the new rules are now well understood by both the public and the justice system. We are no longer surprised when a man is behind bars for battering his wife; indeed, that is what we now expect. A similar shift in thinking — the precise contours of which will be worked out over the ensuing decades — has taken place with this prosecution.
If the DOJ wins and Parnell is convicted and sent to prison, a critical question will become, Who else could end up in prison? We know, for example, that the law in this case applies to anyone in the food or pharmaceutical industry, from manufacture to point of sale. But we don’t know if the operative criminal law principles of knowledge and foreseeability will be applied more broadly to someone in the healthcare field – to hospital or nursing home executives or to doctors. So far, these people have been subject only to civil lawsuits. But that’s the significance of this case against Parnell: the DOJ is sending a message to all those people who were formerly subject to civil liability that they, too, could be subject to criminal indictment.
And neither is this a salmonella case per se. It’s a case about a pathogen that made its way to the public that shouldn’t have, if people had done their jobs properly. So whether the offending substance is salmonella, MRSA, C. difficile, or E. coli, the operating legal principle is the same: if you’re in a position to keep it from the public and you don’t, and as a result people get hurt, the law may look at you just as it would if Big Louie had he done the damage the old fashioned way. The law is looking at the quantum of harm, not so much how they got harmed or whether the bad guy meant to do it.
During the Congressional hearings looking into the salmonella outbreaks of 2008 – 2009 (referred to in Part I of this series), Congressman Greg Walden of Oregon, asked Parnell a question. He held up a large clear jar of peanut products made by PCA and asked Parnell if he would like to try some, just as the people who lost lives or were sickened had done. Parnell again invoked his right to remain silent and refused to answer the question.
But what Walden did was meaningful: he was asking someone who held the public trust to step into the shoes of the very people whose trust he once held. And that’s the point: either we, the goods or service provider, learn to put ourselves in the shoes of the people we serve, and let that guide our actions — or we risk putting ourselves in the shoes of Big Louie.
That’s the lesson in Parnell’s case.