A professor at Yeshiva University's Benjamin Cardozo School of Law writes an op-ed urging the United States Supreme Court to take the case of convicted felon and former kosher meat king Sholom Rubashkin. But like the other attorneys for Rubashkin that came before him, Harlan Protass doesn't seem to be able to tell the whole truth.
Jail sentence doesn't fit the crime
HARLAN PROTASS • Des Moines Register
Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville. He is no Boy Scout. He committed financial fraud, was convicted at trial and deserves punishment.
Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.
But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.
That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal.
Most big-time frauds are prosecuted in federal court, where sentencing guidelines largely dictate the length of prison terms. Those guidelines sort offenders into one of 43 “offense levels” based on different aspects of their crimes. Higher offense levels reflect more serious conduct and give rise to longer prison terms.
In financial fraud cases, offense levels are based principally on the amount of money lost. Consideration of a number of other factors, like the role that a defendant played in a crime, can also lead to longer sentences.
Objectively, this makes sense. A $500,000 fraud is generally more serious, and deserving of a longer sentence, than a $50,000 fraud. Likewise, people who run criminal enterprises deserve more time than those who work for them. But when it comes to large-scale economic crimes that occur in corporate settings — like that for which Rubashkin was convicted — strict application of the guidelines sometimes results in sentences disconnected from any common sentencing sense. Indeed, they can fall into the realm of prison terms usually reserved for major international drug traffickers and terrorists.
That’s exactly what happened in Rubashkin’s case.
Judge Reade applied the federal sentencing guidelines with unusual methodical rigor. She analyzed every provision and subprovision that might conceivably apply to Rubashkin. Many overlapped with one another, effectively punishing him multiple times for the same conduct. Judge Reade also considered certain charges that were dropped. And she punished Rubashkin in part for testifying on his own behalf, accusing him of perjury.
That’s not all that went wrong in Judge Reade’s courtroom. A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines. Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines.
Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.
In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements. She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision. She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.
On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines. In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.
To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case. It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.
This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received. The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.
HARLAN PROTASS is a partner at the law firm of Clayman & Rosenberg in New York. He also is an adjunct professor at the Benjamin N. Cardozo School of Law in New York. Contact: email@example.com
Here's what Protass doesn't tell you.
The law requires judges to explain, cite legal precedent for and document every departure they make from the sentencing guidelines. That means every downward departure and every upward departure.
That's because judges have the right to add length to the sentence the guidelines recommend just as they have the right to lessen the sentence the guidelines recommend. Departure is not a one way street.
Rubashkin's potential mitigating factors were his large number of children, many of whom are minors; his charitable giving; and his autistic child.
The judge noted that lots of convicted criminals have large families and many dependant children, and there needs to be a unique case of hardship to use this as a downward departure. Otherwise, all convicted criminals with lots of children would get easy sentences while a convicted criminals who are childless would serve full sentences – and this is not the intent of law.
She also noted that it is a lot easier to give large amounts of charity when the money is stolen and not legally earned. Despite Protass' claim, the evidence – which the judge was mandated to consider – showed that Rubashkin did personally profit from the money he stole to the tune of, at least, $1.5 million dollars.
Rubashkin's special relationship with his autistic son Moshe had the same issues with mitigation that his large number of children had. Should every convicted criminal with a disabled child get off easy? The judge looked at the evidence submitted by Rubashkin's attorneys and decided that Rubashkin's close, large extended family would be able to give Moshe lots of attention and care, and therefore there was no valid reason to reduce Rubashkin's sentence.
Protass tells you none of this because knowing the truth makes it far less likely for you to be sympathetic with Sholom Rubashkin.
But he also doesn't tell you what the possible upward departures were. I'll list a few of them below. Please keep in mind that criminal charges filed but not yet taken to trial are legal upward departures in the federal court system. So are crimes which are not yet charged but which are related to the crime(s) the defendant was convicted of:
1. Obstructed justice
2. Destroyed or secreted evidence
3. Perjured himself to federal investigators
4. Perjured himself in court
5. Bribed a public official
6. Helped a witness against him flee the country
7. Knowingly harbored illegal aliens for profit
8. Committed aggravated identity theft
9. Refused to cooperate with the investigation
10. Refused to make restitution
11. Hid assets
12. Did not show remorse
13. He stole money from his undocumented workers
14. He did nothing to stop the abuse of those workers
This list is not complete.
Every one of those factors could have been used to increase Rubashkin's sentence.
Instead, the judge added 2 years to Rubashkin's sentence for the perjury that took place in front of her in court, and reserved the right to consider the other possible upward departures if Rubashkin's sentence was sent back to her for resentencing on appeal.
But, again, Protass can't tell you the truth because the truth does not support the story Sholom Rubashkin wants to tell.
Is a 27 year sentence too harsh?
Yes, it is.
But sentences like this are handed down much more frequently than Protass and other Rubashkin supporters admit, and those convicts deserve relief, as well.
The sentencing guidelines need to be reformed.
And Sholom Rubashkin's supporters need to come to grips with the fact that Rubashkin is guilty, and that his behavior was far worse than his spin artists claim.