Legal Experts Question Justice of Rubashkin Sentencing Guidelines

Several former U.S. attorneys general, a former deputy attorney general, more than half-a-dozen former U.S. attorneys and a former federal judge have authored and signed letters to the judge in the Sholom Rubashkin case, criticizing the prosecutors’ recommendation that Rubashkin receive life in prison for his bank fraud conviction under Federal Sentencing Guidelines. The authors of the letters include former U.S. attorneys general Janet Reno, Dick Thornburgh, Nicholas Katzenbach, and Edwin Meese III, as well as former deputy attorney general Larry D. Thompson, and former federal Judge Paul G. Cassell. The jurists represent the gamut of sentencing philosophies and includ officials nominated by both Democratic and Republican administrations. Law professor Alan Dershowitz also sent a letter asserting the same conclusion. At press time, more distinguished former U.S. attorneys are adding their names to the widening list of distiguished legal experts challenging the proposed life sentence.

The letters express concerns about how the sentencing guidelines are being utilized in Rubashkin’s case, arguing that they provide “problematic guidance” in determining Rubashkin’s sentence.

Rubashkin was found guilty of 86 federal charges that including bank fraud, mail fraud, and wire fraud, as well as money laundering and failure to pay livestock providers within 24 hours required by the obscure Packers Act of 1921. The 50 year-old Rubashkin, who was CEO of the AgriProcessors kosher slaughterhouse in Postville, Iowa, is facing recommendations by the Justice Department that demand a sentence of life in prison. His sentencing is expected on April 29 in the court of U.S. District Judge Linda Reade.

The distinguished signers of one letter jointly expressed wonderment at the recommendation for sentencing in Rubashkin’s case. “We cannot fathom how truly sound and sensible sentencing rules could call for a life sentence—or anything close to it—for Mr. Rubashkin, a 51-year-old, first-time, non-violent offender whose case involves many mitigating factors and whose personal history and extraordinary family circumstances suggest that a sentence of a modest number of years could and would be more than sufficient to serve any and all applicable sentencing purposes,” said one letter, signed by Nicholas Katzenbach and Edwin Meese, Larry D. Thompson and eight former U.S. attorneys. Katzenbach served as the U.S. Attorney General from 1965–1966 under President Lyndon B. Johnson. Meese served as President Reagan’s Attorney General from 1985–1988.

“To our knowledge, there is no empirical or other social science research to support the notion that life sentences or even long prison terms are necessary for, or even effective at, deterring white-collar offenses,” the letter continues. The Katzenbach/Meese letter says that a sentence of life or decades in prison would be “inconsistent with the traditional purposes of punishment” and “would produce a gross disparity in treatment”. Such a severe sentence, the attorneys argue, “undermines the congressional goal of fairness and proportionality in federal sentencing.”

In a related development, a second letter—signed by a former federal judge and a former U.S. attorney—describes the government’s sentencing recommendation as “draconian” and notes the federal sentencing guidelines equate Rubashkin’s suggested punishment to those convicted of first-degree murder. Indeed, remarkably, the Government’s guidelines calculations seemingly call for the Court to impose a significantly longer sentence on Mr. Rubashkin than he would receive for second-degree murder, kidnapping, rape of child, or providing weapons to terrorist organizations,” said the letter, signed by Brett Tolman, the former U.S. attorney for the District of Utah, and Cassell, who was a U.S. District Court Judge for the District of Utah from 2002 to 2007, was previously an Associate Deputy Attorney General and Assistant U.S. Attorney.

Alan Dershowitz’s letter not only endorsed other letters from former attyorneys general, but also described his personal experience working with Senator Edward Kennedy in helping formulate and draft the Sentencing Guidelines. “As someone intimately familiar with the thinking of those behind the sentencing guidelines, I am confident that they would have been distressed by the government’s position in this case and its misuse of the guidelines to try to secure a sentence well in excess of what Mr. Rubashkin’s actions, as well as his personal background, deserve,” Dershowitz wrote. “A single digit sentence would satisfy all the legitimate goals of the criminal justice system.”

The Katzenbach/Meese letter compares the Rubashkin case to that of Mark Turkcan, the president of First Bank Mortgage of St. Louis, who misapplied $35 million in loans, resulting in a loss of approximately $25 million. Turkcan was recently sentenced by a federal judge in Missouri to one year and one day in prison. Prosecutors and the U.S. Probation Office have calculated the total offense committed by Rabbi Rubashkin at level 45 under the Federal Sentencing Guidelines, but the federal Sentencing Table caps at level 43. An offense level of 43 is punished with a life sentence under the sentencing guidelines.

Rabbi Rubashkin’s attorneys have asked the court to impose a sentence no greater than 72 months, noting his positive history and character, his extraordinary family circumstances, and the arbitrary nature of the now-advisory guidelines used by prosecutors. They emphasize that Rubashkin’s conduct was not done for personal gain, that he did not intend any loss to the bank. Rubashkin was originally indicted for employing illegal immigrants, an offense that has been punished with probation or a short prison term. After seven superseding indictments and the court’s order separating the trials on immigration charges from the bank fraud charges, prosecutors chose to proceed to trial on the bank fraud charges so as to increase Rubashkin’s punishment. Interest was paid on all of the money drawn by the allegedly fraudulent loan, and the bank acknowledged that it received approximately $21 million in profit from the interest payments.

The bank loan was not paid in full because the government’s immigration raid on Agriprocessors caused the company to declare bankruptcy. The bank “called” the loan when Agriprocessors could not continue to make its payments. The May 2008 raid included one military helicopter and hundeds of federal agents, and was widely criticized for the extreme tactics utilized by prosecutors and Immigration and Customs Enforcement. The raid destroyed the company, the nation’s kosher beef slaughterhouse, and had lasting effects on the community of Postville and the kosher meat industry.