Former U.S. Attorneys, Legal Scholars, Chastise Sentencing Recommendation for Rubashkin

(Thursday, April 22nd, 2010)

Cedar Rapids, Iowa –  Two 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. The authors of the letters – which include former U.S. attorneys general Nicholas Katzenbach and Edwin Meese III, former deputy attorney general Larry D. Thompson, and former federal Judge Paul G. Cassell – represent the entire spectrum of law-and-order sentencing philosophies, including officials nominated by both Democratic and Republican administrations. The letters express concerns about how federal sentencing guidelines are being deployed in Rubashkin’s unique case, arguing that they provide “problematic guidance” in determining Rubashkin’s sentence.

“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 Katzenbach, Meese, 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. The letter and full list of signatories is enclosed.

“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.

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The Katzenbach/Meese letter goes on to say 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.”

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, and is the current Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah.

Judge Cassell is a leading advocate for federal sentencing reform, and testified before Congress on several occasions against mandatory minimum sentences. He was one of the leading judiciary voices questioning the complex federal guidelines that were mandatory until the U.S. Supreme Court ruled the guidelines advisory and invalidated provisions making them mandatory in United States v. Booker in 2004.

Professor Alan Dershowitz also sent a letter to the judge in the Rubashkin case, endorsing the Katzenbach/Meese letter and describing 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.”

All three letters were sent to Hon. Linda Reade, the chief judge of the U.S. District Court for the Northern District of Iowa, who will announce Rubashkin’s sentence on April 29, 2010.

Rubashkin was convicted last year of bank fraud for his role as an executive with the Agriprocessors kosher meatpacking plant in Postville, Iowa. The sentencing recommendation submitted by prosecutors to the court earlier this month is inconsistent with the sentencing of other corporate executives convicted in comparable cases. 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 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.

The Cassell/Tolman letter notes that “the basic problem seems to be that the guidelines make ‘loss’ the primary driver of sentences. And the loss table mechanically moves sentences higher and higher based on loss alone, inexorably moving upwards regardless of whether the sentence remains proportionate to the crime.”

“Imposing massively lengthy sentences in white collar cases is not only wasteful of taxpayer dollars, but it is insulting to the victims of violent crimes,”Cassell and Tolman wrote. “It is hard for victims of truly violent crimes to understand why defendants who have violently harmed them should receive a far shorter prison sentence than (if the Government’s recommendation is followed) Mr. Rubashkin.”

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, and that a 72-month sentence would allow the Bureau of Prisons to place Rubashkin in a facility with experience in effectively and humanely incarcerating observant Jewish inmates.

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 military helicopters and more than 600 federal agents, and was widely criticized for the extreme tactics utilized by prosecutors and Immigration and Customs Enforcement. The raid destroyed the company and had disastrous lasting effects on the community of Postville and the kosher meat industry.

Advocates for Rubashkin are urged to support an online petition at the “Justice for Sholom Mordechai Rubashkin” Web page at http://justiceforsholom.org. The Web site also provides other tools for community members to contact the U.S. Attorney prosecuting the case and the Department of Justice.

(YWN Desk – NYC)

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5 Comments

  1. Your Sister says:

    From their mouths to G-d’s ears!

  2. deepthinker says:

    “We cannot fathom…”

    Well, I can fathom.–It’s another Dreyfus case–Anti-Semitism–”J’ACCUSE!”

  3. YonasonW says:

    deepthinker #2 – Dreyfus didn’t have a cadre of establishment lawyers of all political stripes protesting the government’s handling of his case. Don’t forger that important difference.

    For what it’s worth – my prediction is that the protests protests against the recommendations of the prosecutor will bare fruit, and that the end of the story will be a defeat of antisemitism.

  4. No Worries says:

    In total agreement. I do wonder however why his lawyers stated that Rubashkin suffered from a mental illness. Was that supposed to help?

  5. 20vz says:

    Thank you to all that has signed the letter.
    I think it’s our job to daven for him.

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