Can and should religious considerations influence bail decisions?
Douglas A. Berman • Sentencing Law And Policy Blog
The question in the title of this post is prompted by this interesting recent story over at a Wall Street Journal blog that is headlined "Rabbis Request Bail For Rubashkin." Here are the basics:
Seven rabbis traveled to Washington, D.C., Tuesday seeking a remedy for what they say is overly harsh and unjust treatment of Sholom Rubashkin, the former Agriprocessors executive convicted of fraud at the kosher meat packing plant, which filed for bankruptcy protection in 2008.
The rabbis, who lead such Orthodox Jewish membership organizations as the National Committee for the Furtherance of Jewish Education and the Rabbinical Alliance of America, are demanding the release on bail of Rubashkin as he awaits sentencing on the 86 counts of financial fraud that a federal jury found him guilty of last fall. The 8th U.S. Circuit Court of Appeals denied Rubashkin’s request for bail earlier this month, according to The Gazette of Cedar Rapids, Iowa, but Rubashkin recently appealed their decision.
Speaking at a press conference at the National Press Club Tuesday, Rabbi Chaim Dovid Zwiebel of Agudath Israel of America said the rabbis weren’t there to discuss Rubashkin’s actual and supposed wrongdoings. (In addition to the financial fraud, Rubashkin also faced charges that he violated federal immigration laws at the Iowa plant where 389 illegal immigrant workers were notoriously arrested in a federal raid in May 2008. Prosecutors dropped the 72 charges after Rubashkin’s first trial.)
Rather, Zwiebel said they sought to address “a humanitarian issue” - that Rubashkin, himself an Orthodox Jew, has been unable to fully practice his faith in prison, and that prosecutors have unjustly pushed to keep him behind bars until he gets his prison sentence. “We believe local federal prosecutors have been extraordinarily inflexible and harsh” in their urging the courts to reject bail, Zwiebel said.
The rabbis denied allegations that Rubashkin would be a flight risk, arguing that his and his family’s travel documents have been surrendered and that Rubashkin fully complied with the terms of his bail before his trial began. Zwiebel pointed out the “heart-rendering aspect” of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term. (Federal prosecutors are recommending between 21 and 27 years behind bars.)
While these rabbis are basically suggesting that religious considerations should provide a basis for prosecutors (and presumably judges) to be willing to allow Rubashkin to be out on pre-sentencing bail, I cannot help but wonder if religious considerations might have been a factor in initial decisions to be unwilling to allow Rubashkin to be out on pre-sentencing bail. There are, I believe, a number of notable cases in which Jewish offenders have fled to Israel and resisted extradition in the past.
Is it uniquely wrong to deny bail partially on religious grounds, but justified to grant bail partially on these grounds? Or should the issues work one-way in the other direction against bail? And are any of these questions of constitutional dimension in light of the First Amendment's religion clauses?
A graduate of Princeton University and Harvard Law, Douglas A. Berman is the William B. Saxbe Designated Professor of Law at Moritz College of Law of Ohio State University and is the coauthor of a casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines. He is also the sole creator and author of the widely cited blog Sentencing Law And Policy, which has the distinction of being the first blog cited by the U.S. Supreme Court (for a document appearing exclusively on the site), and substantive analysis in particular blog posts has been cited in numerous appellate and district court rulings, in many briefs submitted to federal and state courts around the country, and in dozens of law review articles.