Thursday, April 29, 2010

No Community Is An Island

It’s difficult to write about the Sholom Rubashkin case because it is difficult to write about a person who is guilty yet who is the victim of even more wrongful behavior by the government. He is scheduled to be sentenced the day before this column appears. The sentencing memorandum submitted by prosecutors to the federal district judge in Iowa is a cruel and shameful document.

Before his trial, Rubashkin’s lawyers attempted to negotiate a deal that would have resulted in his serving a prison term. Plea bargaining is not definite proof of guilt as there are defendants who throw in the towel because they do not have the funds to go to trial or because going to trial usually results in a lengthy sentence if the accused is found guilty. Federal sentencing guidelines punish severely accused persons who exercise their constitutional right to be tried.

Sholom Rubashkin did wrongful things, primarily after a frightening raid to round up illegal immigrants working at Agriprocessors, the company he ran. That resulted in brutal treatment of the workers by the government and panic and folly on Rubashkin’s part, with the company ultimately being forced into bankruptcy.

A balanced article by Jeff Stier last week in this newspaper had the headline “Life Sentence For Rubashkin Would Be Unfair.” That’s putting it mildly. Life sentences are for murderers and terrorists and for the once in a lifetime phenomenon named Bernard Madoff. How do Rubashkin’s wrongful deeds, which the government calculates at $26 million, result in a life sentence? This is where the sentencing memorandum comes into play. Prosecutors haven’t asked that Rubashkin be sentenced to a life term, only that the sentencing upgrades that they insist are appropriate would result in a life sentence.

As if with a drumbeat preceding execution, the memorandum begins: “This case is ordinary in that it involves a common criminal.” The prosecutors go on to say that for sentencing purposes, the court can rely on hearsay and evidence not presented at trial and that certain evidence must remain under seal. Worse yet, they rely on demonstrably false arithmetic to arrive at a draconian recommendation, recycling and repackaging the same acts to justify enormous upgrades under the sentencing guidelines. Monetary loss is crucial in federal sentencing and the prosecutors contrive to show that even when there was no loss, Rubashkin is guilty of the offense of failing “to timely pay providers of livestock” who lost “the time value of their money.”

This claim, central to the government’s case, amounts to the argument that a businessman who is late in paying his bills because he is under financial pressure may be charged with fraud, not because he presented false documents but because he did not pay in a timely manner. The Supreme Court is to rule soon on a parallel theory of criminal activity, it being theft of service which has become standard fare in the arsenal of prosecutors. Hopefully, if the theft of service concept is ruled unconstitutional, theft of time will follow suit.

It’s issues like these that make the U.S. the prison capital of the world. We have perhaps five percent of the world’s population and about twenty-five percent of the prison population.

Among the Orthodox, especially charedim, this case has evoked an emotional reaction, with claims that the prosecution amounts to the persecution of Jews. There are posters everywhere and while the Orthodox have a long history of fervid language in these exercises, the Rubashkin case represents a new high in emotionalism. The opening line of one poster reads (in Hebrew): “How can we be silent and not protest when the blood of a Jew is being forfeited here in the United States.”

I doubt that the Rubashkin prosecution is a product of anti-Semitism, but the possibility cannot be dismissed in view of the disgraceful prosecutorial behavior. In their hyper-ethnocentricity, many Orthodox fail to see that the prosecutorial abuses in this case are symptomatic of what is problematic about American criminal justice. The adversary nature of prosecutions, which admittedly may be unavoidable, induces prosecutorial overkill in the form of excessive and duplicate charges, misinformation and even distortion of evidence, as well as the coaching of witnesses to see that the song they sing suits the case that is being made. The catalogue of prosecutorial abuses includes additional items. There are prosecutors who do not overstep. They are the exception, not the rule. What Rubashkin has experienced is not unique.

At the federal level, the atrocious and I believe unconstitutional sentencing guidelines, of which Rubashkin is but one of thousands of victims, are an incentive to prosecutorial abuse. These guidelines are the legacy of the late Senator Ted Kennedy and Stephen Breyer when he was a key congressional staffer, as their intent was to increase the length of prison terms so as to establish a pattern of equality in sentencing. The Supreme Court came close to invalidating the guidelines but yielded unfortunately to Breyer and so the ruling was limited to making them advisory and not mandatory. They continue to do harm and not only to Jews.

There is much else that is untoward in the Rubashkin prosecution. It is understandable, even necessary, for the Orthodox to be ethnocentric. As is true of other groups, we are obligated to care especially about our own. We are distinct and in many ways separate, yet we are not an island unto ourself. We are part of a larger society and what happens outside of our four cubits affects us, including in criminal prosecutions.