FROM THE EDITOR’S DESK
By Larry Gordon • 5TJT
Unfortunately, many of us know, or have known, someone who served time in prison for one offense or another. Getting involved, even unwittingly, in any kind of illegal activity inevitably results in problems for the person involved, as well as for their entire family.
I think we are all well acquainted with the pitiful case of Bernard Madoff—the bizarre way he ran his business and the inescapable result. Many people were badly hurt by the Madoff deception, losing exorbitant amounts of money in his Ponzi scheme. Mr. Madoff was sentenced to 150 years in prison and is now at a medium-security federal penitentiary in Butner, North Carolina.
And now before us is the matter of Sholom Rubashkin, former vice-president of Agriprocessors in Postville, Iowa, one of the most prodigious producers of glatt kosher meat and poultry on the market for many years. Things turned sour for the company and many of its executives, including Mr. Rubashkin, after a U.S. immigration agency raid on their plant that found a large number of illegal immigrants employed at the company. The raid had a dramatic impact on the plant’s ability to meet consumer demand, which apparently led to all kinds of financial pressures and, ultimately, Mr. Rubashkin’s conviction on fraud charges, for which he is now awaiting sentencing.
One of the most prominent criminal defense attorneys in the United States today is Ben Brafman, to whom we turned this week to gain some insight into the case. Mr. Brafman is not involved in the Rubashkin case. He specializes in defending “white collar” criminal cases, but is perhaps best known for legal counsel he has provided for high-profile celebrities including Sean Combs, Michael Jackson, and, more recently, New York Giants wide receiver Plaxico Burress.
To understand the nature of sentencing and what these decisions are rooted in, I first inquired about the Burress case and why the star athlete received what seemed to be such a harsh sentence of two years in state prison. After all, he shot himself in the leg and caused no harm to anyone else. Mr. Brafman explained that it took him eight months to negotiate the two-year sentence because of the tough “mandatory” sentences required under New York’s gun laws. If he had not taken that plea, Burress would have faced a mandatory minimum sentence of three-and-a-half to twelve years in prison.
Clearly, guns—especially illegal guns—are a problem here in New York, and the law apparently needs to come down hard so as to dissuade those contemplating carrying an unlicensed weapon.
Mr. Brafman explained that the judge in the Rubashkin case has much more latitude and flexibility than there was in the Burress case. “State sentencing has by law certain guidelines that a judge cannot change,” Brafman said. On the federal side, after a Supreme Court ruling several years ago, the sentencing guidelines are merely “advisory,” and judges consider additional factors when deciding what a fair and reasonable sentence should be.
Federal law requires the courts to impose a sentence “sufficient, but not greater than necessary, to . . . reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense . . .” but also to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.”
On the downside of the judicial flexibility option, Mr. Brafman said, the fact is that judges across the country are still abiding by the sentencing guidelines in over 70 percent of all cases.
One difficulty in the Rubashkin case is that sentencing for fraud convictions in federal court are generally driven by the amount of money involved. The higher the amount, the higher the advisory guideline sentence. Also, in a high-profile case there is always the concern that the judge will want to set a harsh example in the hope of creating deterrence for others. There are many reasons to suggest that a lenient sentence would be appropriate in this case. Given the notoriety of the case, however, Mr. Brafman says Rubashkin’s lawyers will have their work cut out for them.
He added that it is not a good indication for Mr. Rubashkin that prosecutors last week dropped the immigration charges against him. He said that apparently the prosecution feels that the sentence on the fraud charge will be severe enough so as not to warrant the effort or expense to try another case against Rubashkin.
So, while the judge in the Rubashkin case is allowed to take into consideration things like the fact that Sholom Rubashkin has no prior criminal record and that he has a large family that he needs to support, it is not likely that those issues will convince the judge to lighten the sentence.
We spoke to another attorney, who requested not to be identified because of their involvement in the ongoing appeal of the denial of bail for Mr. Rubashkin as well as the appeal of the recent conviction. This attorney pointed out, as did Mr. Brafman, that a federal judge’s sentence will frequently be meted out in accordance with the amount of money that was involved in the fraud. In the Rubashkin case, this attorney said, his understanding is that any money that was derived as a result of the so-called fraudulent activity has been returned, except for $3 million, which the Rubashkin family is presently putting together.
As you may have read previously, friends of the family have offered to put up the equity in 43 homes as bail, and several rabbis have offered Torah scrolls as part of the bail bond for Mr. Rubashkin’s release.
“Even if all the money is returned, that does not reduce the severity of the crime he was convicted of,” the attorney said. “It’s like if you rob a bank and then return all the money. It’s nice that you returned the money, but you are still going to be tried for bank robbery.”
There are a number of complicated legal details involved in the case, the attorney currently working on the case said. The fact that the immigration charges were dismissed may impact dramatically on the fraud conviction, because the two cases are intertwined. Then there is also the matter of the venue where the trial was held, in South Dakota. There is a question whether Mr. Rubashkin had a fair trial by a jury of his peers.
Closer to home, in our communities, the case looms large as well. There are strong feelings about how this case causes embarrassment for Jews everywhere. While our communities are extremely diverse, when it comes to a matter like this, interestingly enough, the outside world sees us as one. It’s a strange and even uncomfortable unity
The fact is that in Jewish law, there is no such thing as imprisonment for financial wrongdoings. In halachah, the emphasis is on restitution—compensating the damaged party or making them whole in some fashion. The U.S. obviously does not operate according to halachic dictates. Our laws on sentencing criminals are structured around punishing the offender as well as using a harsh sentence to send a message to potential offenders and convince them, as the old cliché says, that “crime doesn’t pay.”
While there may be sympathy for Mr. Rubashkin and his family, many still cannot help comparing him to Mr. Madoff, though the numbers involved are starkly different. People calling for the book to be thrown at Rubashkin seem to be more concerned with how others will view them as Jews than with the fact that Rubashkin has made restitution. This is not unusual; some expressed these types of feelings for Jonathan Pollard, who was convicted of spying on the U.S. for Israel. Ed Koch, former mayor of New York City, always used to say on his radio programs that it was his feeling that Pollard should have been hanged.
Now, of course, Mr. Pollard does not deserve to be hanged, and has indeed already served far more time than he should have. But people like Mr. Koch are angry at the way people will look at them because of the U.S.-versus-Israel nature of the case. Once again, it’s a strange matter of reluctant Jewish unity.
The numbers bandied around the Internet about the Rubashkin sentence say that he stands to be sentenced to up to 1,200 years. Certainly the crimes he was convicted of are serious, and he will probably serve a significant sentence. But it’s a pity that a man like him, who is unlikely to commit such crimes in the future, has to languish in prison uselessly, particularly since full restitution is being made. The law recognizes that there are extenuating factors in this case, as in many others, which the Supreme Court has said may be considered in meting out punishment. At the end of the process, those who are concerned with justice will not be upset if the judge refuses to hand down a very long prison sentence. But those who are looking to destroy a man and his family will never be content.