Two Colorado farmers who pleaded guilty to six counts of introducing contaminated cantaloupe to interstate commerce in one of the deadliest foodborne illness outbreaks in U.S. history have asked a federal judge for probation sentences.
Eric and Ryan Jensen, owners of Jensen Farms, pleaded guilty in October to selling cantaloupes tainted with Listeria monocytogenes, which led to the deaths of more than 30 people and sickened at least 147 in 2011.
The maximum sentence for each of the six counts would be a year in prison and a $250,000 fine.
Food safety attorney Bill Marler said that probation would be a sufficient sentence for the Jensens, as the criminal charges have already sent a message to food growers that deadly foodborne illness outbreaks are taken seriously by government prosecutors. (Marler's law firm, Marler Clark, which represents 24 families of victims who died, underwrites Food Safety News.)
Attorneys for the Jensens said that jail time in this case would be excessive and would avoid a large disparity compared to defendants found guilty of similar conduct. The case has already caught the attention of the food industry, they said.
"Any desired respect for the law has been accomplished," the defense said. "We have reached a point of diminishing returns on the issue."
In fact, harsh or punitive sentences for the Jensens would create an attitude of disrespect for the law, the defense argued.
"There are many voices in the national dialogue which question the reasonableness of a law which would punish well-meaning small farmers for an event which was truly an accident," the attorneys said. "Many of those voices see this incident, if handled punitively, as a harbinger of the end of small American family farmers."
A probationary sentence would also leave the Jensens available to help the victims receive restitution in ongoing litigation related to the outbreak. The Jensens previously facilitated a Chapter 11 bankruptcy proceeding to secure $3.8 million in restitution for victims and their families. Marler and other attorneys are suing retailers and auditors for around $50 million in additional damages.
The Jensens have in turn filed a civil lawsuit against food safety auditor Primus Labs, which gave them a high score on a food safety audit just weeks before the outbreak. The brothers signed over all rights in that litigation to victims.
Despite the Jensens' packing facility lacking adequate washing solution, Primus Labs gave Jensens Farms an audit score of 96 percent on inspection.
In their request to reduce the sentence below the maximum guidelines, the Jensens' defense team noted that the Primus audit did not advise the Jensens about the potential hazards or risk of contamination associated with their equipment. The brothers believed that the superior rating from Primus ensured that their products were safe for consumption, the defense said.
Defense documents describe the Jensens as respected and beloved members of their community and include anecdotes from community members who describe them as hard-working family men who took pride in their business.
