Letter from Long Island: Free Rubashkin, For Now

Prosecutors have said that the Agriprocessors VP is likely to flee to Israel. The next step in that calculation seems obvious: any observant Jew with ties to Israel would be deemed a flight risk and denied bail.

Rubashkin should not be in jail, for now
Mayer Fertig • The Jewish Star

Sholom Rubashkin is probably going to spend a significant amount of time behind bars. In November, he was convicted in federal court on a number of counts of fraud related to his AgriProcessors meat packing plant in Iowa.

Whether or not the decision to prosecute Rubashkin in the first place was fair and just seems to have become a matter upon which reasonable people, and a few unreasonable people, must disagree. A significant public relations and fund raising effort is underway dedicated to the proposition that Rubashkin was railroaded. We come down firmly on the side of the people who understand that people who break the law can be punished. All the tzedaka in the world can’t necessarily change that — and there’s no disputing that Sholom Rubashkin gave a lot of tzedakah. But that doesn’t mean he’s being treated fairly, and we do not believe that he is.

Rubashkin has not been sentenced yet, but is in prison anyway. Federal prosecutors deem him a flight risk. Twice he has applied for bail, and twice been turned down.

It is not unusual for a convicted CEO to be denied bail pending sentencing. CEOs — even, or especially, crooked ones — tend to have significant resources, making them likely candidates to make a run for it. But not all convicted CEOs have been locked up prior to sentencing. For instance, Joseph Hirko, the former chief executive of Enron’s failed Internet business remained free before he was sentenced to 16 months in prison last September.

But it’s not that Rubashkin didn’t receive the same consideration that we find most disturbing. It’s the reason: prosecutors have said that Rubashkin is likely to flee to Israel. The next step in that calculation seems obvious: any observant Jew with ties to Israel would be deemed a flight risk and denied bail. That is a frightening implication that must be protested very strongly.

This week some prominent rabbis went to Washington to urge Attorney General Eric Holder to review Rubashkin’s case and see for himself why they believe Rubashkin will not flee.

Rabbi Chaim Dovid Zwiebel of Agudath Israel of America, Rabbi Pesach Lerner of National Council of Young Israel, Rabbi Aaron Raskin of the National Committee for the Furtherance of Jewish Education, Rabbi Gershon Tannenbaum of the Rabbinical Alliance of America, Rabbi Aaron Lipskar of Aleph Institute and Rabbi Aryeh Sokoloff of the Rabbinical Association of Queens, Greater New York, held a news conference and released a letter to Holder, which read in part, “The prosecutors’ ongoing insistence that Mr. Rubashkin remain incarcerated through the long months he awaits sentencing is unjustifiable, even inhumane.”

Rubashkin and his wife have 10 children, six live at home, including “an autistic 16-year-old who has always been heavily dependent on his father. Mr. Rubashkin’s absence from his home at this time — when he is most needed to prepare his children in case he is sentenced to a lengthy prison term — is devastating,” the letter said.

Friends have offered the equity in 43 homes as collateral, and offered to pay for a 24-hour armed guard. In addition, “to demonstrate the intensity of their conviction that he will not flee, rabbis have offered Torah scrolls — that may not be assigned except for the most extreme and exigent needs — as security for his presence.”

The letter bluntly states: “Employing illegal aliens and committing bank fraud by compromising the security for a bank loan do not warrant the extreme draconian sanction of pre-sentencing imprisonment.”

We wholeheartedly agree. Mr. Rubashkin will have to pay the price for his crimes, but to deny him his final months before sentencing with his family is wrong. We would like to see Mr. Holder order his prosecutors to back off.

A few brief notes:

1. Two indicted Agriprocessors managers fled to Israel where they are currently hiding.

2. At least one of those fled on Rubashkin's urging and with cash Rubashkin gave him for his escape.

3. Judges decide bail, not prosecutors.

4. Both the trial judge and the appeals court denied bail.

5. Rubashkin's pretrial situation is different from his post-trial situation. Pretrial, Rubashkin faced the possibility of conviction. Post-trial, post-conviction on 86 felony counts, Rubashkin faces the certainty of a long prison term.

6. According to trial testimony, Rubashkin tampered with evidence and obstructed justice while out on pretrial bail.

7. Rubashkin still faces state charges – more than 9,300 counts of child labor violations.

8. Flight risk and risk to community and/or witnesses and evidence determine feasibility of post-trial bail, not the crimes committed.

9. Unlike many of the example cited by Rubashkin supporters, Rubashkin did not cooperate with the government, did not admit guilt, did not apologize for his crimes and showed no contriteness or remorse at all.

10. Extradition from Israel is often very difficult, as the recent Avrohom Mondrowitz case shows.

Like Fertig, I'd like to see Rubashkin have this brief pre-sentencing, pre-incarceration time with his family, and I wish Rubashkin and his handlers had the foresight to take the steps pre- and in-trial to allow that to easily happen. But they did not.

Even so, I still see room to grant bail.

The problem is, four federal judges – including the one who granted his pretrial bail and allowed him to twice travel to New York City for religious purposes while on bail – do not believe bail is now warranted.

Misstating and misrepresenting Rubashkin's situation does no one good. It does not help Rubashkin, even if it does energize his legal defense fund donor base.

Many convicted federal criminals facing long prison sentences do not get pre-sentencing bail; on the other hand, many others do.

Those decisions are made on the facts at hand.

It's one thing to ask the government to reconsider, to point out the facts can be seen in a way which allows bail. But it's quite another to accuse the government of "extreme draconian sanction" against Rubashkin.

Use the word or not, what Rubashkin, his attorneys and his rabbis are doing is playing the antisemitism card. They hope the government will react to it by granting bail. If not, it will make good fundraising material for Rubashkin's legal defense fund.

Newspaper editors should not facilitate this. Saying Rubashkin deserves bail does not need to rely on governmental antisemitism – especially when that alleged antisemitism is not in any way supported by actual fact.