Cause of Action Applauds Settlement in Qualified Immunity Case

Washington, D.C. (Aug. 14, 2018) – Cause of Action Institute (CoA Institute) today applauds the settlement in the case of Allah v. Milling. The case revolved around the prison officials denying an inmate named Almighty Supreme Born Allah, due process and holding him in solitary confinement. The District Court ruled in favor of the inmate. That decision was overturned by the Appellate Court, citing the broad definition of “qualified immunity,” even though the Appellate Court recognized that the inmate was denied due process. Qualified immunity is a legal doctrine that shields public officials from civil suits. Cause of Action supports narrowing the scope to ensure citizens who are harmed by corrupt public officials can have relief in court.

John J. Vecchione, president and CEO of Cause of Action Institute issued the following statement:

“We are pleased to see the state of Connecticut recognize that Mr. Allah was harmed and has settled this case. Although we were anxious to see an overbroad application of qualified immunity redressed in the United States Supreme Court, we hope this case serves as a reminder that public officials are accountable to the citizens they serve, and an overbroad definition of qualified immunity undermines the trust we place in those who choose a path of public service by providing far too much protection to individuals who violate their commitment and the public’s trust.”

The case was unique for many reasons, most notably, the diverse coalition that came together in defense of Mr. Allah and to challenge qualified immunity. Cause of Action Institute signed an amicus brief alongside American Civil Liberties Union, American Association for Justice, Alliance Defending Freedom, Americans for Prosperity, The Institute for Justice, Law Enforcement Action Partnership, National Association of Criminal Defense Lawyers, among many others and led by the Cato Institute.

Allah v. Milling Background:

While awaiting trial on a drug charge, Mr. Allah was kept in solitary confinement for seven months because he had once asked a question to a guard during a previous period of incarceration. Both the District Court and Appellate Court agreed that the defendants had denied Mr. Allah due process. However, the Appellate Court ultimately reversed the lower court’s ruling citing qualified immunity.

Qualified immunity has become a broad legal doctrine that protects government employees from civil lawsuits. In the amici, we argued, “qualified immunity denies justice to victims of unconstitutional misconduct.” We had hoped the United States Supreme Court would recognize that the defendants constitutional right to due process had been violated and therefore narrow the legal doctrine of qualified immunity to ensure defendants like Mr. Allah receive the justifiable relief they’re owed.


About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

Media Contact:
Matt Frendewey

Plea Bargaining and Its Effect on The Sixth Amendment

Earlier blog posts on criminal justice and policing reform focused on overcriminalization, mandatory minimums, and other perverse incentives within our justice system. This post will focus on the Sixth Amendment and Plea Bargaining. For the purposes of this post, “plea bargaining” refers to “agreements between defendants and prosecutors where defendants agree to plead guilty to some or all the charges against them in exchange for concessions from the prosecutors.”[1]  Because of the extensive use of plea bargaining, the Sixth Amendment right to public trial is fading.

Over 200 years ago, the United States Constitution became the supreme law of the land with the later accompaniment of the Bill of Rights. Included in the Bill of Rights is the Sixth Amendment, which states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…; and to have the Assistance of Counsel for his defence [sic].”[2]A criminal defendant’s right to a jury trial exists to prevent the oppression from the government.[3] Further, “providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”[4]

As mentioned in an earlier post, we have started to see a rise in the use of mandatory minimums. Because of this, there has been a shift from using the trial process, to using a plea bargain.[5] In fact, today only 3% of federal cases are resolved by way of the Sixth Amendment.[6] According to Jenia I. Turner, PLEA BARGAINING, “plea bargains increasingly require defendants to waive important procedural rights that are designed to ensure fair and accurate outcomes.”[7] The right to remain silent, confront witnesses, have a public trial or jury trial are all inherently waived by a guilty plea.[8] Thus roughly 97% of federal cases are resolved without these procedural protections.

In many jurisdictions, judges are prohibited from participating in or commenting on the plea negotiations.[9] Most sentencing power now lies with the prosecutors, who have minimal boundaries. In fact, there is only one restriction placed on prosecutors: they cannot use illegal threats to secure a plea.[10] For example: “If a prosecutor says, ‘I’ll shoot you if you don’t plead guilty, the plea is invalid.”[11] Alternatively, if a prosecutor threatens to charge a defendant with a crime punishable by death at trial, and this threat causes the defendant to accept a plea agreement, this method is lawful.[12] Further, with the presence of probable cause, prosecutors can threaten to bring charges against the defendant’s family[13] Today, individuals who elect to use their Sixth Amendment right, essentially face harsher sentences than those who accept a plea bargain.[14] With mandatory minimums and other sentencing enhancements, prosecutors can often dictate the sentence that will be imposed.[15] According to Bill Cervone, the State Attorney in Gainesville, FL and Chief Prosecutor in Florida’s Eighth Judicial Circuit, “legally, you cannot impose a longer sentence on someone because they exercised their right to trial…factually, there are always ways to do it.”[16]

Unfortunately, as the system currently exists, there are minimal safeguards for those who pick going to trial over accepting a plea bargain. Furthermore, when defendants do accept a plea bargain, judges have limited ability to ensure that their decisions are made knowingly, voluntarily, and intelligently. As discussed in earlier posts, the Sentencing Reform and Corrections Act (“SRCA”), if signed into law, would reduce penalties for non-violent repeat offenders and restore judicial discretion in cases of low-level offenders below the mandatory minimum. These changes are important because, as the use of mandatory minimums decreases, there could be an associated decrease in the use of plea bargaining. While SRCA only addresses a portion of the much-needed criminal justice reform, passing it would be a great first step.

Katie Parr is a law clerk at Cause of Action Institute

[1] Legal Information Institute, Plea Bargain,

[2] U.S. const. amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145, 156.

[4] Id. at 155.

[5] 3 Jenia I. Turner, Reforming Criminal Justice, Pretrial and Trial Processes, Plea Bargaining, 2017, at 87.

[6] Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic (May 2, 2017),

[7] 3 Jenia I. Turner, Reforming Criminal Justice, Pretrial and Trial Processes, Plea Bargaining, 2017, at 87.

[8] Id.

[9] Turner, supra note 5, at 87.

[10] Walsh, supra note 3, at 1.

[11] Id.

[12] Id.

[13] Id.

[14] Richard A. Oppel Jr., Sentencing Shift Gives New Leverage to Prosecutors, The New York Times (Sept. 25, 2011),

[15] Id.

[16] Id.

The Unintended Consequences of Mandatory Minimums

This blog post will re-examine the Sentencing Reform and Corrections Act (SRCA) and focus on mandatory minimums. For the purposes of this blog post, “mandatory minimums” refers to “when a person convicted of a crime must be imprisoned for a minimum term, as opposed to leaving the length of punishment up to judges.”[1] “Mandatory minimum sentencing forces judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors.”[2]

Although originally intended for violent offenders, mandatory minimums now impact non-violent offenders as well.[3] Mandatory minimums are often excessive and unjust, but this is not new.  In 1994, Congress created a “safety valve” for those offenders “who most warrant proportionally lower sentences” and “are least culpable”.[4] The safety valve allows federal judges to go below an otherwise applicable mandatory minimum sentence in low-level drug cases (“essentially non-violent, first time offenders.”)[5] If signed into law, the SRCA will go beyond the 1994 safety valve and reduce penalties for those who are non-violent repeat offenders. Further, under SRCA, federal judges will also gain discretion in the cases of low-level offenders below the 10-year mandatory minimum, and in sentencing those individuals who possess a firearm illegally, provided that the firearm was not brandished or discharged in relation to a crime of violence or drug trafficking.[6]

Earlier this year, Attorney General Jeff Sessions, released a memorandum on sentencing guidelines that is inconsistent with the goals of the 1994 safety valve and the proposed SRCA. These sentencing guidelines instruct federal prosecutors to “charge and pursue the most serious readily provable offense”—claiming that this method “affirms…responsibility to enforce the law, is moral and just, and produces consistency.”[7] In the memorandum, Sessions goes on to say, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences”[8]

Despite the influence of the Sessions memo, some of the federal judges (who enforce these mandatory minimums) are speaking out about the grave injustice mandatory minimums are creating. In an interview with Rachel Martin of NPR, Federal Judge Mark Bennett addressed the “consistency claim” suggested by Sessions’ memo by saying “mandatory minimums support unwarranted uniformity by treating everyone alike even though their situations are dramatically different.”[9] In the same interview, Bennett said “mandatory minimums are so incredibly harsh and they’re triggered by such low levels of drugs that they snare at the non-violent, low-level addicts…”[10] According to Judge Bennett, about 80% of the cases involving mandatory minimums are unfair.[11]

One case where Judge Bennett felt the mandatory minimum was too harsh involved 28-year-old Mark Paul Weller. In 2015, Judge Bennett issued a ten-year sentence in response to Mr. Weller’s guilty plea to two counts of distributing methamphetamine (“meth”) in his home town.[12] While Weller did have a brief criminal history, he had made significant efforts to improve his life.[13] Unfortunately, with an unexpected, emotional life event, he turned to drugs and alcohol.[14] This downward spiral led Weller to eventually sell meth.[15] Over the course of eight months, Weller had sold 2.5 kilograms of meth across state lines.[16] Weller had traded meth for his sister’s rent, a used car, gas money, and even an unregistered SKS rifle.[17] The unregistered rifle was still in the car when he was pulled over with 223 grams of meth.[18]

“Weller was charged with conspiracy to possess with intent to distribute and to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and distributing 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).”[19]

Because of Weller’s guilty plea to these charges, his mandatory minimum established by Congress was 10 years. Sadly, his entire sentence involved only the calculation of the following factors: victim impact, criminal history, cost of imprisonment, and the guideline sentence. The answers to this calculation were as follows:  no identifiable victim, minimal criminal history, $2,440.97 per month of imprisonment, and a suggested sentence of 151-188 months.

After sentencing Weller to 120 months, Bennett considered the result of this punishment: “one more nonviolent offender packed into an overcrowded prison; another $300,000 in government money spent.” “I would have given him a year in rehab if I could…How does 10 years make anything better? What good are we doing?” Judge Bennett noted, there were many mitigating factors in Mr. Weller’s case, like neglect and abuse by his mother, addiction, and remorse. Yet, even after consideration of those mitigating factors, he was forced to give Mr. Weller the 10-year sentence. Judge Bennett had absolutely no power to shorten or change the sentence type, i.e.: rehab instead of prison.[20], [21]

If passed, SRCA would scale back police and prosecutor power by restoring the use of judicial discretion.

Katie Parr is a law clerk at Cause of Action Institute.


[1] U.S. Legal,

[2] See Id.

[3] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 126.

[4] Id. at 122.

[5] Id.

[6] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[7]  Memorandum from Jefferson B. Sessions, Att’y Gem., U.S. Dep’t of Justice, to All Federal Prosecutors, Department Charging and Sentencing Policy 1 (May 10, 2017).

[8] Id.

[9] A Federal Judge Says Mandatory Minimums Don’t Fit The Crime, Rachel Martin, NPR (June 1, 2017),

[10] Id.

[11] Mallory Simon, Sara Sidner, The judge who says he’s part of the gravest injustice in America, CNN, updated: (June 3, 2017).

[12] Against His Better Judgment, Eli Saslow, The Washington Post (June 6, 2017)

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Weller v. United States of America, No. CR-14-4059-1-MWB, 2015 U.S. Dist.

[20] See Luna supra, note 12 at 2.

[21] In addition to unfair sentencing, mandatory minimums may also help to maintain job security for prison guards. Some prison guard unions have sponsored and lobbied for harsher sentencing laws. supra note 3 at 131, at 1.


Congress should reject flawed Back the Blue Act

On May 16, 2017, Representative Ted Poe (R-Texas) introduced the Back the Blue Act in Congress.[1]  The bill has since been referred to the House Judiciary Committee.  The Back the Blue Act of 2017 (“BBA”) creates new federal crimes for killing and assaulting police officers—conduct that is already illegal under the law in all fifty states and has been punished in state courts for years.  The proposed bill goes further, and establishes mandatory minimum sentences for such crimes even though mandatory minimums have been proven to be ineffective at curtailing criminal conduct.  The BBA, as currently written, does not require that the defendant even knew he or she was assaulting a police officer, which means it lacks any mens rea, or “guilty mind,” requirement.

Because of its duplicative nature, adoption of mandatory minimums, and lack of any mens rea requirement, Congress should reject the current version of the BBA.  The lives and working conditions of police officers are at stake.  As a 34-year veteran of the Baltimore and Maryland State Police Departments put it, “the bill would make us less safe and less effective by worsening what is already the greatest threat to policing today: the downward spiral of police-community relations.”[2]

The Back the Blue Act attaches a mandatory minimum of ten years for the attempted killing of a law enforcement officer or for “conspiring” to kill a law enforcement officer.  The BBA also turns any assault on an officer that works for a state or local police department that receives federal funding into a federal crime.  Most definitions of assault make spitting on someone an act of assault, so the potential application of the new law is vast.  Under the BBA, if any injury occurs during the assault, the mandatory minimum sentence is two years.  And if “serious bodily injury” occurs, the defendant faces a mandatory minimum of ten years in prison.  Further, a twenty-year mandatory minimum sentence applies if a deadly weapon is used during the assault.

Mandatory minimums take away sentencing discretion from judges and give it to prosecutors.[3]  This results in arbitrary and severe punishments that undermine the public’s faith in America’s criminal justice system.[4]  Further, evidence shows that mandatory minimums do not deter criminal conduct.[5]

As mentioned, the lack of any mens rea requirement means that a person could be charged by federal prosecutors without even knowing that the person allegedly assaulted was a law enforcement officer.  This risk is particularly high for the charge of conspiracy to kill a law enforcement officer, which imputes liability for actions taken to any person involved in the alleged conspiracy, even if the actual act was not performed by that defendant.  Mens rea has been a key element of American criminal law for centuries.  As the Supreme Court has stated, “we must construe [an imprisonment] statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.”[6]  Requiring a “guilty mind” in addition to a “guilty act” protects someone who engaged in accidental or innocent behavior from criminal prosecution and it is at the center of our criminal jurisprudence.[7]

Since the bill is duplicative of laws already on the books in all fifty states and the District of Columbia, the Back the Blue Act would waste federal resources and threaten state autonomy.  State and local jurisdictions have the expertise to deal with issues involving their own law enforcement officers.  The “federalization” of their local policing efforts will only deter from their ability to meet the ever-changing needs of local police forces.  Moreover, as laid out by the Tenth Amendment to the U.S. Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.”[8]  Policing power is not one specifically delegated to federal government, therefore, it is reserved to the states.

The assault provision requires the federal prosecutor to “certify” that either the state lacks jurisdiction, has requested the federal government assume jurisdiction, the verdict obtained by the state left an “unvindicated” federal interest, or that prosecution by the federal government “is in the public interest and necessary to secure substantial justice.”  However, these certification requirements are vague and do not meaningfully limit federal intervention into state interests.

States like Virginia and Wisconsin, for example, have laws nearly identical to the Back the Blue Act except that they also include a mens rea element.  Virginia’s statute states: “if any person commits an assault…against another knowing or having reason to know that such other person is… a law-enforcement officer… such person is guilty of a Class 6 felony, and… the sentence of such person shall include a mandatory minimum term of confinement of six months.”[9]  Wisconsin’s statute uses similar language to also acknowledge the importance of mens rea.[10]

If signed into law, the Back the Blue Act would create waste in the judiciary and in society, deteriorate working conditions for law enforcement officers, and impose costly mandatory minimums unrelated to the severity of the crime.  It would also impede state and local efforts to protect police officers and fail to honor the punishment that a state has assigned for identical crimes on its own law enforcement officers.  For these reasons, Congress should reject the Back the Blue Act in its current form.

Katie Parr is a law clerk and Erica L. Marshall is counsel at Cause of Action Institute.


[1] Back the Blue Act of 2017, H.R. 2437, 115th Cong. (1st Sess. 2017).

[2] Neill Franklin, For the sake of police, don’t back the Back the Blue Act, The Hill (Aug. 30, 2017), available at

[3] Paul Larkin, Evan Bernick, Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, The Heritage Foundation (Feb. 10, 2014), available at

[4] Id.

[5] See Barbara S. Vincent & Paul J. Hofer, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings, Federal Judicial Center (1994), available at$file/conmanmin.pdf.

[6] Staples v. United States, 511 U.S. 600, 605 (U.S. 1994).

[7] John Malcolm, Michael B. Mukasey, The Importance of Meaningful Mens Rea Reform, The Heritage Foundation (Feb. 17, 2016), available at

[8] U.S. Const. amend. X

[9] Va. Code Ann. § 18.2-57(C) (2017).

[10] Wis. Stat. § 940.203(2)(a) (2017).

Criminal Prosecutions on Tax Day: “If this is the law, nobody is safe”

Tax Day is just behind us, marking the ceremonial American tradition of waiting to the last minute to electronically file a Form 1040 in the hopes of receiving a tax refund (or maybe that is just me). This year alone, the IRS expects to process approximately 150 million tax returns.  But few Americans stop to think before clicking “submit,” about the sheer breadth of information they are supplying.  A tax return is an intimate financial portrait that details your income, marital status, number of dependents, the property and assets you’ve acquired, and gifts you’ve received, all based on documents and receipts collected throughout the previous year.

Remember on tax day that while Title 26 of the United States Tax Code gives the IRS the power to levy taxes, it also creates criminal sanctions to make sure people pay what they owe. Tax evasion is a felony, as is failure to pay any tax due, filing a false return, and not filing a return at all in some cases.  But what if otherwise legal acts or omissions—like not keeping financial records, throwing away receipts, not giving all of your documents to your accountant, cashing checks, or even using cash—were also a felony under the tax code?  Tax cheats should be prosecuted, but the law needs to be applied in a way so that the millions of Americans who file tax returns every year, but might not keep receipts or documents, cannot be caught up in an overreaching prosecution.

This was the issue that faced the Second Circuit in United States v. Marinello.  Carlo Marinello ran a courier company in New York and didn’t file tax returns for a number of years.  He was indicted with eight counts for failure to file a tax return.  However, the government also charged him with a felony for “corruptly obstruct[ing] or imped[ing]…the due administration of the [tax code]” under 26 U.S.C. § 7212(a).

This statute states:

Whoever corruptly or by force or threats of force … endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under [Title 26], or in any other way corruptly or by force or threats of force … obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both.

According to the indictment, Mr. Marinello could be guilty of the felony of corruptly obstructing or impeding the administration of the tax code by performing acts as common as “failing to maintain corporate books and records,” “failing to provide [his] accountant with complete . . . information related to [his] personal income,” “discarding business records,” “cashing business checks,” and “paying employees in cash” because he performed these acts and omissions with the intent to obtain an unlawful benefit—not paying taxes. The jury convicted Mr. Marinello on this basis, and the Second Circuit affirmed the conviction.

The other felony provisions in Title 26, including the felony for not paying taxes under section 7202, impose a “willfull” mens rea requirement, which requires the government to prove that the person had a “guilty mind” and acted with the knowledge that his conduct was unlawful, and made a voluntary, intentional violation of a known legal duty.  However, the obstruction statute punishes anyone who “corruptly” endeavors to obstruct or impede the administration of Title 26, a much lower standard.  To act “corruptly” is to act “with intent to gain an unlawful advantage or benefit for oneself or for another.”

As this otherwise statutorily-undefined term has been applied across the land, and by the Second Circuit in Mr. Marinello’s case, any act or omission that obstructs the administration of the tax code is a felony so long as the defendant committed that act or omission to gain an “unlawful benefit”—whether or not the defendant knew that benefit was unlawful, whether or not the act or omission itself is a legal act, and whether or not the unlawful benefit sought by the defendant was even related to the tax code.  Troublingly, this “obstruction” statute has become a catchall felony provision with a reduced mens rea requirement that has swallowed the other criminal provisions in the tax code.  For example, it is hard to imagine how failing to file a tax return would not also impede the administration of the tax code.

Disagreeing with the Second Circuit, and concerned about the overbreadth and vagueness of the statute, the Sixth Circuit has cabined the obstruction statute to require that the government prove that the defendant took action to impede or obstruct a pending IRS investigation or action, such that a particular IRS employee was obstructed by the defendant’s conduct. United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998).

Mr. Marinello filed a petition for a writ of certiorari with the Supreme Court, asking it to hear his case and resolve the split between the Sixth Circuit and the Second Circuit. Cause of Action Institute and the National Association of Criminal Defense Lawyers filed a “friend of the court” brief, urging the Supreme Court to take the case to clarify the type of conduct that is criminalized under the tax code.  As Judge Jacobs of the Second Circuit warned in his dissent from the rest of the court, “if this is the law nobody is safe.”

The full amicus brief can be found here

Erica Marshall is counsel at Cause of Action Institute

Doing the Time Without Doing the Crime

Imagine that you are the CEO of large food producer, and you are notified out of the blue that your company is responsible for a salmonella outbreak possibly affecting thousands of people around the country.  If I were that CEO, I would be worried for those who were affected and disappointed that my leadership hadn’t prevented such an outbreak.  Most importantly, I would immediately act to remedy the situation.

In August, 2010, this hypothetical became a reality for Austin (“Jack”) DeCoster and his son, Peter DeCoster, the CEO and COO, respectively, of a large Iowa egg producer, Quality Egg, LLC.  Around this time, the Food and Drug Administration traced a salmonella outbreak back to the company’s eggs after it received reports of roughly 1,900 illnesses.  Jack and Peter DeCoster were unaware of the contamination in their facilities and had no knowledge that their company was sending out such eggs, but they immediately took steps to remedy the outbreak.  They voluntarily recalled millions of dozens of eggs and complied with all of the Food and Drug Administration’s investigations into their facilities.

When the United States prosecuted Quality Egg under the Food, Drug, and Cosmetic Act (“FDCA”), which prohibits the introduction of any adulterated food into interstate commerce, the company plead guilty and agreed to pay a $6.8 million dollar fine.  Jack and Peter DeCoster also plead guilty to being “responsible corporate officers” of Quality Egg under a doctrine created by the Supreme Court in United States v. Park, 421 U.S. 658 (1975).

Under the Park doctrine, a corporate officer can be found guilty of committing a misdemeanor when his or her corporate position affords them “the power to prevent” violations of the FDCA, even absent “knowledge of, or personal participation in” the violation.  Park, 421 U.S. at 6670, 676.  Because of this low burden for proving criminal culpability, and the lack of any “guilty mind” requirement, no corporate officer had ever received a jail sentence under the Park doctrine.  In the plea agreement, both the government and the DeCosters agreed that the DeCosters had no knowledge that the eggs contained salmonella and that the DeCosters had taken no action to contribute to the release of the adulterated eggs into the marketplace.  In other words, the DeCosters had neither a “guilty mind” nor had they taken any “guilty act” to commit this crime, as is required to receive a prison sentence under the Fifth Amendment Due Process Clause of the United States Constitution.

Nonetheless, at sentencing, the Judge found the DeCosters had run the company in a negligent manner, and sentenced them each to pay a $100,000 fine and serve three months in prison.

After a split panel of the United States Court of Appeals for the Eighth Circuit affirmed, the DeCosters filed a petition for a writ of certiorari, asking the Supreme Court to review the legality of their prison sentence.  The DeCosters’ petition highlights Due Process concerns that could affect anyone being charged criminally for the conduct of others.  On February 10, 2017, Cause of Action joined a “friend of the court” brief in support of the DeCosters’ petition, along with the National Association of Manufacturers and the National Association of Criminal Defense Lawyers, arguing that liability for “responsible corporate officers” has never and should never result in prison time, due to a lack of any mens rea requirement for conviction.

In our system, the government must prove in a criminal prosecution that the defendant committed a criminal act and did so with criminal intent.  As the Supreme Court has stated, “we must construe [an imprisonment] statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.”  Staples v. United States, 511 U.S. 600, 605 (1994).

The DOJ wants to make an example of the DeCosters.  The U.S. Attorney who filed the case stated: “Corporate officials are on notice….[c]laims of ignorance or ‘I delegated the responsibility to someone else’ will not shield them from criminal responsibility.”  But to do so at the expense of a hallmark principle of our justice system is a mistake, and marks a dangerous departure from the safeguards of American criminal jurisprudence.

The brief can be found here.

Erica Marshall is counsel at Cause of Action Institute.