News this week that a former peanut company executive had been sentenced to 28 years for crimes related to a salmonella outbreak has raised issues of white-collar crime and sentencing. A federal jury convicted Stewart Parnell in late 2014 on a whopping 72 counts, including conspiracy, obstructing justice and introduction of adulterated food that that may have been connected to nine deaths and hundreds of illnesses.
Prosecutors adduced evidence at trial that Parnell, 61, and the co-defendants knowingly shipped salmonella-tainted peanut butter from a Georgia facility to corporate customers, who then used it in food products.
At first blush, and before you read some of the underlying facts of the case, some might suggest that three decades is a lot of time for an executive who gave orders to ship bad peanut butter.
Others, such as criminal defense attorneys or federal public defenders, might respond: welcome to federal court. In fact, they might also say add: In a case like this, 28 years is not so bad, either. After all, the government was asking for life, and life was a “guideline sentence.”
Federal sentencing is a macabre game of skill where, paradoxically, the high score is a worst-case scenario, and much easier to achieve than the low score. We old-time arcadegoers remember how a pinball wizard could launch that silver ball into a maze of bumpers and ding off massive bonus points on a single play. Sometimes federal sentencing feels like pinball, with its steadily-increasing offense levels, and liberal point multipliers. Only it’s no game, and the defendant almost always loses.
So, how does the court calculate a sentence for a defendant like Parnell?
The federal Sentencing Guidelines take into account both the seriousness of the offense and the offender’s criminal history. Each type of crime is assigned a “base offense level,” which is the starting point for determining the seriousness of a particular offense. The more serious the crime, the higher the base offense level. But the base is only the beginning — after that comes the “Specific Offense Characteristics.”
These are factors that can add on to the base offense level, which results in a higher sentence.
In this case, because of the massive dollar amounts allegedly lost (between $100 million to $200 million) plus an excessive number of victims (over 250), the defendant racked up big level increases under the guidelines. The way the government criminalized shipping adulterated or misbranded food products, his sentence would be calculated as if he was not only bilking millions of dollars, but additionally injuring people with a weapon of mass destruction. In the eyes of the guidelines, Parnell was effectively graded like a massive Ponzi schemer combined with a mass shooter.
Parnell’s attorneys made some creative arguments against these and other increases.
First, the defense team claimed that the government only put on evidence of the corporate “victims” that were harmed by these shipments, and, that including the several hundred human victims was not based on evidence established at trial. The government responded that there was plenty of evidence of up to 700-plus human victims adduced at trial.
Second, Parnell’s attorneys argued that the government failed to demonstrate reasonably foreseeable financial harm that the defendant knew or reasonably should have known would result. It matters, because the dollar amount involved added a whopping 26 levels.
Either way, the adjusted offense level for Parnell ended up being a 47. (If you’re wondering if that’s high, the standard chart used in sentencing only goes up to 43. So 47 is high). For Parnell, this resulted in a life sentence guidelines range — whether he was a repeat offender or a first timer.
So why didn’t Parnell automatically get a life sentence? There are a few reasons, but for the most part, since a Supreme Court case in 2005, these complex guidelines are now only “advisory,” but the judge remains obliged to consult them and take them into account when sentencing.
Accordingly, 28 years was a “relatively” light sentence, even if it is — practically speaking — a life sentence anyway.
There remains a nagging question: if the DOJ believed these defendants injured and even contributed to the deaths of these citizens, why didn’t the U.S. Attorney’s Office charge them with a homicide?
The U.S. Attorneys’ Office is very good at what it does — in 2013, 92% of federal defendants either pleaded guilty or were found guilty. If they want to charge someone, they plan on convicting that person.
So maybe there was plenty of evidence that these defendants decided to ship bad peanut butter … but maybe not enough that this product actually caused injury to each person. Maybe the government was concerned that putting on a medical causation case for each supposed victim might weaken their case, and risk an acquittal. After all, proving the death or injury of one person is enough of a challenge. Medical proof of injury to several unrelated victims is even more daunting.
Still, this is the United States government we’re talking about here, so why not hold these defendants accountable for the harm to these consumers if the entire case is about people who were hurt by tainted peanut butter?
You already know the answer: The government didn’t have to. They had enough to send these defendants away for decades for just their executive decisions — without having to convict them of physically injuring any person.
It’s a classic debate of whether the ends justify the means, and reasonable minds can certainly differ. On one hand, consumers and citizens place trust in executives (and public officials) that they will not ignore our safety to turn a profit. An ordered society depends on maintaining that trust — we would go from superpower to zombie wasteland pretty quickly if we lost faith in our food sources, and the federal government is the entity strong enough to safeguard this republic, one case at a time.
On the other, if a prosecutor thinks a person has caused another great physical injury or death, but doesn’t think the government can prove it beyond a reasonable doubt, should they be able to cobble together other charges to get to that life sentence?
Ultimately, federal cases are about symbolism and public policy. That’s not a criticism at all; it’s simple math. As a practical matter, the U.S. government cannot prosecute everyone, though federal criminal law has expanded to reach conduct nearly everywhere.
Because the government must pick and choose who it wants to prosecute, those cases are necessarily significant socially, because they represent an order of priority. Here the government has sent a message to executives: do not profit at the risk of harming consumers who have placed their confidence in you.
For CEOs everywhere, the message is heard loud and clear.
