9/28/2011

By Rebecca Gross, J.D. Candidate

            Last Friday, September 16, 2011, marked the latest chapter in the Sholom Rubashkin sentencing debate. Sholom Rubashkin is a former executive officer of Agriprocessors, a kosher meat producer in Iowa. In November 2009, he was convicted of eight six counts of bank, wire, and mail fraud as well as making false statements to a bank and money laundering.  

            During his sentencing hearing in April 2010 before Judge Reade, prosecutors originally asked the judge to impose a life sentence. Following that request, there was a lot of debate over the appropriateness of that sentence length. Numerous Justice Department officials including six former attorney generals and more than a dozen former United States attorneys wrote a letter to Judge Reade criticizing “the government’s extreme sentencing position” and the “potentially severe injustice” that could result. Julia Preston, Life Sentence Is Debated for Meat Plant Ex-Chief,  N.Y. Times, Apr. 28, 2010. They wrote, “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, nonviolent offender.” Id. After seeing the response to the life sentence request, the prosecutors instead requested that Rubashkin receive a twenty-five year sentence. 

            In June 2010, Judge Reade sentenced Rubashkin to 324 months of imprisonment followed by five years of supervised release. United States v. Rubashkin, 718 F.Supp. 2d 953, 987 (N.D. Iowa 2007). The judge declined to lower Rubashkin’s sentence because of his relationship with his developmentally-disabled son or his charitable and civic involvement. Id. at 986. The judge also declined to lower the sentence based on evidence presented at trial that Rubashkin was motivated by a sense of duty to maintain the business for religious reasons. Id. at 985. She explained,

No matter Defendant's motive, he defrauded the victim banks out of millions of dollars. He unlawfully placed his family business's interest above the victim banks' interest. His family business and he personally benefitted at the expense of all the victim banks' innocent shareholders. The court finds that this is not a basis to vary downward in this case.

Id.

            Rubashkin lawyers explained that the sentence was “unfair, unjust and excessive,” and said they planned to appeal. Rubashkin Lawyers to Challenge 27-Year Sentence in Fraud Case, BLT: The Blog of Legal Times (June 22, 2010). Rubashkin’ defense lawyer and Former United States Attorney Robert Barr of Atlanta explained: “This sentence is inconsistent with the overwhelming view of the legal community, including six former U.S. attorneys general, who have all said a first-time, non-violent offense does not warrant a multi-decade sentence.” Id. He also pointed out that “the court’s sentence today is even more than prosecutors asked for, which is a very disturbing development.” Id.

            The appeal case saw lots of additional support.  According to Rubashkin’s supporter website, forty-seven members of Congress wrote letters to Attorney General Eric Holder asking him to investigate the fairness of Rubashkin’s sentence. The Story, Justice for Shalom (2011). In addition, the American Civil Liberties Union, National Association of Criminal Defense Lawyers, and Washington Legal Foundation all filed amicus briefs. Id.

            On Friday September 16, 2011, the Eighth Circuit affirmed Rubashkin’s conviction and sentencing.United States v. Rubashkin, Nos. 10-2487, 10-3580, 2011 WL 4104922, at *18 (8th Cir. Sept. 16, 2011). The court explained that “not only was Rubashkin’s sentence of 324 months within the guideline range, it was at the low end of it.” Id. Rubashkin argued that his 324-month sentence was “substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts.” Id. However, the court said these were the “very characteristics the district court properly took into account” in considering Rubashkin’s sentence. Id. The Eighth Circuit reviewed the district court sentence under a deferential abuse of discretion standard, and concluded that the district court had not abused its discretion in imposing the 324-month sentence. Id.

            However, the story is not finished yet. Rubashkin’s lawyer Guy Cook said his client will appeal the decision. He explained, “This is not justice by any measure. An appeal to the U.S. Supreme Court to review this case is certain. The length of sentence alone, greater than the government asked for, essentially a life sentence for a first time, non-violent offense demands review.”Trish Mehaffey, Court of Appeals Upholds Bank Fraud Conviction of Former Agriprocessors Manager, The Gazette (Cedar Rapids, IA), Sept. 16, 2011.