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.

Friday, April 23, 2010

The Freedom to be Anti-Religious

Earlier this week the Supreme Court heard argument in Christian Legal Society v. Martinez, the issue being whether Hastings College of Law, part of the University of California system, can deny official status and benefits to a group that requires its leaders and voting members to accept its core religious beliefs, including that marriage is between a man and a woman. A decision should come down before the end of the Court’s term in June. The expectation is that the Justices will rule in favor of CLS and not simply because the Court has become more conservative.

This case should not have reached the Supreme Court. It has because a federal district judge ruled against CLS, a decision that was affirmed in an astonishingly brief opinion by the U.S. Court of Appeals for the Ninth Circuit, which demonstrates anew that hostility toward religion remains alive, if not entirely well, within the judiciary. It’s also another illustration of the remarkable irony (because of their polar ideologies) that Gay Rights and the Gun Lobby are the most powerful interest groups today in the country.

There are sixty student groups registered at Hastings. CLS alone is penalized for alleged discrimination, although for sure there are more than a handful of groups that have requirements or understandings that limit who can be leaders and active members to students who meet specified parochial criteria. This is certainly true of Jewish groups on campus and, likely, of all or nearly all religious groups. In his brief for CLS, Michael W. McConnell, the noted constitutional scholar and former federal judge, points out that the bylaws of La Raza restrict what is referred to as “policy” membership to students “of Raza background,” meaning “persons of Latino or Mexican descent.” There are other examples of similar selectivity. The singling out of CLS is nasty business.

The animus toward CLS – at Hastings and other campuses – contributes to the polarization and ideological warfare that increasingly mark American public life. What is lost is a sense of moderation and also the acceptance of the reality that this is a large country with a huge and diverse population and that we should expect and accept diversity and disagreement on key issues and practices. Those who oppose Gay marriage should not be penalized, especially when their opposition is based on sincere and long held religious beliefs and especially when we recognize that as recently as about a decade ago, Gay marriage was scarcely on the public agenda.

We hear much about pluralism and tolerance, terms that are standard fare for liberals, many Jews included. There is no need to preach or practice tolerance toward beliefs and practices that we endorse. Unless there is a willingness to respect the right of others to hold beliefs that are contrary to our own, pluralism and tolerance are empty, even hypocritical, terms. Of course, these twin ideals are not an invitation to harm others. As with basic values generally, there are limits. The test must assess intent and impact, whether what is believed aims to harm those of different belief and whether, irrespective of intent, persons whose beliefs are different are being hurt. CLS requires nothing more than that those who lead and make decisions for the group adhere to its core beliefs. Gays suffer not at all as a consequence, while the actions of a public institution to punish CLS strike me as afoul of the Free Exercise clause.

As it prepares to rule, the Supreme Court is the recipient of a ton of amicus curiae or friend of the court briefs on either side of the issue. I doubt that the Justices regard these offerings as particularly friendly or necessary or whether the briefs add much to the argument. They are essentially interest group statements, as I learned more than a half century ago when, as a graduate student, I examined amicus briefs in civil liberties cases.

We Jews have contributed handsomely to the flow, with the Orthodox in CLS’s corner and a slew of organizations on the side of Hastings. Agudath Israel and the Orthodox Union have submitted separate briefs, while Young Israel has signed on to the submission by the Becket Fund which has emerged as the primary legal defender of the rights of religious groups and persons. The failure of Orthodox groups to cooperate is regrettable, especially because on public affairs issues they surely do not disagree. Decades ago, when intra-Orthodox division was far greater than it now is, cooperation on litigation and legislation was routine. There were leaders of greater vision and stature then.

To its credit, the American Jewish Congress weighed the equities and decided not to take a position. The American Jewish Committee has weighed in against CLS, although its brief is tepid. It should have stayed out of the case. The Anti-Defamation League comes on in its brief like a bull in a china shop and, like bulls in china shops are wont to be, its behavior is strange. Unlike the amicus it signed on to at the Ninth Circuit level, the focus is an attack against President Bush’s faith-based initiatives. Whatever one may think of our previous president and his policies, they are not the issue before the Supreme Court. I wonder what the legal hotshots, including three at Weil, Gotchal & Manges, were thinking when they drafted such an inappropriate and foolish document.

As expected, the New York Times maintains its record of hostility to religious groups in an editorial on the CLS case published on the day that the Supreme Court heard argument. With the Times and the traditional anti-religion crowd, sadly made up of a significant number of Jews in its corner, the ADL should reap contributions into its coffers. What about the contribution that ADL is making to the defamation of Jews as a group that is hostile to religion?