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It Surely is A Tragedy, BUT Should Not Be A Crime:
Arrest Of Jensen Farms' Owners Betrays Elemental Principles Of Justice And Sets Stage For Less Investment In Production Of Food

Jim Prevor’s Perishable Pundit, September 26, 2013

We have written a great deal about the Jensen Farms cantaloupe situation and we are no fans of the farm.  As we wrote here, we believe that Wal-Mart had no business buying from this vendor and should have constrained its supply chain to those higher volume vendors who pre-cool cantaloupes and, in other ways, follow the highest safety standards. We don’t know if Wal-Mart purchased these cantaloupes because they wanted a cheaper price or wanted to “buy local,” but it was a questionable procurement decision from the start.

Yet news that the owners have been arrested on criminal charges on grounds they introduced adulterated food into interstate commerce is very bad news — for the produce industry and for the country.

For the industry, such charges will significantly constrain investment. Margins are tight in this business and it is a lot of work. Participants already run the risk of suffering crop failures; now they also run the risk of jail. Many will decide this is not where to put their money or their time.

For the country, it shows the collapse of traditional standards of what it means to commit a crime. Traditionally no crime could be committed in the absence of mens rea, literally translated as “guilty mind.” The traditional rule in criminal law was actus non facit reum nisi mens sit rea, which translates as "the act is not culpable unless the mind is guilty."

In other words, as long as the owners of Jensen Farms did not intend to hurt or kill people, by traditional standards there can be no crime.

Note that this standard is different in civil law, where intent is not a factor. If the farm caused harm, it can certainly be sued and held liable for the damages it caused. But liability is different than criminality.

Over the years, the Common Law, which required mens rea, has given way to more crimes being classified as strict liability crimes. In the US, however, where our Constitution requires Due Process, we have typically reserved these strict liability crimes for minor offenses — mostly violations, for example a parking ticket where all that has to be shown is that a car was parked illegally, not the intent of its owners.

There are other exceptions. Statutory rape, for example, is generally a strict liability crime, meaning the law is that the adult has an affirmative obligation to make sure the younger person is of legal age. The belief that a minor is older is typically not relevant.

But farmers and packers are not rapists and neither should they be criminals. By all accounts, Eric and Ryan Jensen were trying their best to balance the many demands of producing quality food. They had their facility audited, met the standards of world class companies such as Wal-Mart and intended only to be a produce vendor.

That so many died from their product is a tragedy, not a crime.

Now that the federal government has decided to criminalize a normal, if rare and unfortunate, consequence of farming and packing, there will be less farming and packing than there would have been. That itself is a crime. Where do we go to press charges?

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