Screen Shot 2015-08-10 at 9.16.49 PMSentencing coming September 21.

From the New Yorker online:

Advocates for food safety recently got some startling news: Stewart Parnell, a former president of the Peanut Corporation of America (P.C.A.), may soon be sentenced to life in prison for his role in a salmonella outbreak that began in 2008. Parnell was found guilty last fall—after a five-year inquiry headed by the Food and Drug Administration—of seventy-one criminal counts, including conspiracy, fraud, and obstruction of justice. He is the first food executive to be the subject of a federal felony conviction in connection with an outbreak, and if he receives a life sentence at his next hearing, on September 21st, as new court documents seem to suggest, it will be the most extreme penalty ever levied in a food-poisoning case.

The line between negligence and fraud can be slender, but the fifty-two-page indictment of Parnell and his associates left little room for debate over how much they knew about the contamination, when they knew it, and what they did to stop it—or didn’t. The document reproduces e-mail exchanges in which Parnell colludes with his brother, Michael, who was a broker for P.C.A., and Mary Wilkerson, the company’s quality-assurance manager, not to contain the incipient contamination but to conceal it. Even as P.C.A.’s internal testing showed a persistent infestation (“We have a problem with the granulation line and salmonella at least every other week, if not every week,” Wilkerson wrote at one point), Parnell assured customers and investigators that his company had “never seen any traces of salmonella in any other of our products,” “never had any issue with this, ever before,” and “run countless tests and show absolutely no evidence of salmonella.” When Parnell was informed that a batch of peanuts might be delayed for testing, he wrote, “Just ship it. I cannot afford to lose another customer.”

Meanwhile, Parnell’s brother was apparently forging so-called certificates of analysis that attested to the purity of contaminated lots. At trial, a P.C.A. executive named Samuel Lightsey testified that, when he expressed concern to Parnell that a customer might discover the fraud, Parnell replied, “We’ve been shipping to them with false COA’s since before you got here,” adding, in a line straight out of a seventies cop drama, “I’ll handle Kellogg’s. Don’t worry about it.”

In the outbreak that followed, according to estimates by the Centers for Disease Control and Prevention, as many as twenty thousand customers became sickened by the tainted nuts, and at least nine people died. It became one of the largest outbreaks of food-borne illness in American history, leading to the recall of nearly four thousand products manufactured by some two hundred companies, at a total loss to the market of about a billion dollars.

In the trial last year, the Parnell brothers and Wilkerson were convicted of more than a hundred counts of criminal offenses, but all three have remained free on bond in the eleven months since. The delay in sentencing arose from one of several peculiarities in the trial. Because prosecutors chose to focus on the executives’ defrauding of corporate customers, rather than on the deaths that resulted from the outbreak, the judge in the case, W. Louis Sands, ruled that any emphasis on those victims could be inflammatory and distracting to the case at hand. When a report emerged after the trial that some of the jurors might have discussed those victims during deliberation, Sands postponed the sentencing process to investigate whether the jury had been compromised. (Early this summer, he concluded that the convictions should remain intact.) At another point, Sands had to pause the proceedings in order to admonish the Parnell brothers’ mother, who accosted a federal investigator inside the courthouse bathroom; at yet another, defense attorneys accused the Food and Drug Administration of tampering with its own records.

More than anything, the trial was a window into the deeper weirdness of the American food-safety system and the extent to which it has become inextricably linked to a single personal-injury lawyer named Bill Marler, who was the focus of my article on chicken contamination in February. Marler is by far the most prominent food-safety lawyer in the country; wherever there is an outbreak of food-borne illness, he is likely to turn up. Over the years, he has sued just about every major food company in the United States, winning more than six hundred million dollars in verdicts and settlements in the process, including nearly thirteen million from P.C.A. in 2010. As the criminal case began, last year, his name was never far from the proceedings. In fact, the report that launched Sands’s investigation into jury misconduct—and, by extension, the delay in sentencing—was first published in the online journal Food Safety News, which Marler founded, in 2009, and publishes from his law offices, on the Seattle waterfront.

As the sentencing date approaches and the case winds down, other documents offer clues to the penalty that the Parnell brothers and Wilkerson might face. The most telling of these is a brief that three attorneys for the Justice Department filed on July 22nd. In it, they refer to a sealed recommendation made by the U.S. Probation Office that classifies Stewart Parnell as a Level 47 offender, Michael Parnell as a Level 37, and Mary Wilkerson as a Level 30. If this is correct, the federal sentencing guidelines recommend more than eight years in prison for Mary Wilkerson and at least seventeen and a half years for Michael Parnell. For Stewart Parnell, whose offense level is the highest one in the government’s guidelines, the recommendation is simply “life.”

Earlier this week, I called Marler to find out whether he had seen the recent briefs, and whether he believed that Sands would follow the sentencing guidelines. “I think a life sentence for Stewart Parnell is completely appropriate,” he said. “But if prosecutors are going to start doing this, we need more consistency.” Marler pointed out that several food companies have been charged with misdemeanor offenses related to contamination in recent years, but other companies responsible for food-borne illnesses have not been charged at all. “Why the Jensen Brothers and not Blue Bell? Why ConAgra and not Cargill?” he asked. “If people are prosecuted one time and not prosecuted another time, you lose a lot of respect for the law.” Marler also noted that criminal prosecutions, like the civil lawsuits he is known for, can occur only after an outbreak takes place; they do nothing to address the larger, systemic weaknesses of the regulatory process. “It’s great to have penalties for misconduct, but the real solution is to catch these things before they happen,” he said.