Over the years a number of legal scholars, former federal judges and attorneys general, and Jewish Press editorials have expressed dismay as to how Sholom Mordechai Rubashkin, a 57-year-old Lubavitcher chassid and father of 10 who had never before been convicted of a crime, received a 27-year sentence from a federal judge in Iowa when comparable violations typically draw sentences of less than five years.
Concern has also been expressed about the failure of the federal appellate system or officials of the Justice Department to correct a palpable miscarriage of justice. (This is not to diminish the sterling work that several of his lawyers performed in an effort to make his case, all to no avail.)
In an op-ed article in the Wall Street Journal, Charles Renfrew, a former U.S. District Court judge in California and U.S. deputy attorney general, and James H. Reynolds, a former U.S. attorney in the same Iowa district as Mr. Rubashkin’s sentencing judge, came up with a new approach, urging President Obama to pardon Mr. Rubashkin before the president leaves office in January.
It would seem this may be a case of an idea whose time has come, given that President Obama is in the process of pardoning hundreds of non-violent, low-level drug offenders sentenced to very long prison terms pursuant to draconian laws enacted in the anti-drug frenzy that enveloped the country several decades ago.
Aside from the significance of the unprecedented harshness of the sentence itself imposed by the judge in the Rubashkin case – surely punishment for crimes should not depend on which judge presides over a particular case – there are glaring acts by the prosecutors that should raise some red flags as far as Mr. Obama is concerned.
According to the Renfrew/ Reynolds article, there was prosecutorial misconduct that improperly pushed Mr. Rubashkin into a higher sentencing category than his case merited.
As they explain:
The government alleged that he illegally shifted money that should have been deposited as collateral for a loan from the St. Louis-based First Bank. Although Mr. Rubashkin was convicted, he did not intend to cause any loss to the bank. But the federal prosecutors who charged him wanted to extract a pound of flesh, and then some – even at the cost of illegally overstepping their bounds and interfering in the bankrupt company’s sale.
As part of its bankruptcy filing, independent assessors valued Agriprocessors’ assets at $68.6 million. Yet evidence that the prosecutors hid and that Mr. Rubashkin’s attorneys found over the past few years proves that the prosecutors stymied the bankruptcy trustee from making a sale to prospective buyers at a reasonable price.
Instead, they warned that buyers would forfeit the business if any member of the Rubashkin family maintained a connection to the firm, although no other family member had been charged.
Moreover, the Rubashkins’ involvement was a critical part of Agriprocessors’ value. The Orthodox Jewish family – especially Sholom’s father, the company’s founder – had significant institutional knowledge and expertise in the kosher food-processing business. Absent the family’s know-how, the company became significantly less attractive to buyers.
The prosecutors achieved their intended goal. Nine prospective bidders walked away from the sale – including one that had offered $40 million. The business was sold for $8.5 million, a fraction of its actual worth, ensuring that the bank would not be paid back for the money it was owed. Even the bank, the victim in the case, objected in writing to the prosecutors concerning the government’s actions. Here, too, the prosecutors unjustly concealed the bank’s objections from the defense.
Under federal mandatory-minimum sentencing guidelines for bank fraud, an offender’s sentence is directly linked to the loss incurred by the bank that was defrauded. The prosecutors’ meddling meant that the bank incurred a $27 million loss. This enabled the prosecutors to seek a staggering life-in-prison sentence for Mr. Rubashkin, which they later lowered to a still unacceptable quarter-century.
On top of this, according to Renfrew/Reynolds, prosecutors deny they prohibited the post-sale participation of Rubashkin family members – an assertion seemingly contradicted by newly discovered evidence. In addition, they say, there were several other material issues of prosecutorial abuse. Some of these claims have been rejected by various appellate judges and some are currently the subject of appeals.
Thus, the pardon gambit is somewhat tricky. If based on the abuse issues that have been rejected by the courts, Mr. Obama’s pardon attorney could well ask why there should be any second-guessing of judges who have not accepted or may not accept those allegations as fact.
It would seem, however, that it would be a less difficult task if the focus were on the incontrovertible conclusion that the punishment plainly did not fit the crime, whatever the sentencing guidelines provide.
We wish the effort to secure pardon for Sholom Mordechai Rubashkin much quick success. He has already served seven and a half years in prison for a crime that should have drawn a sentence of less than five years.
