Tuesday, 29 June 2010

Rubashkin vs. Zaler: Is there fairness in federal sentencing?

Sholom Rubashkin, former head of the kosher slaughterhouse Agriprocessors, has been sentenced to 27 years for financial fraud. He was acquitted on immigration charges.

Some in the Orthodox Jewish community think Rubashkin is a saint. Others in the secular community think he is the devil.

On the sainthood claim, Rubashkin’s prosecution is regarded as motivated by animus beyond the requirements of the law, or even by anti-Semitism. Rubashkin is regarded as a public servant, one who provided kosher meat on a grand scale, and made some innocent mistakes, taking money frombanks that he intended to return.

On the devil claim, Rubashkin is regarded as having perverted Jewish law and given Judaism a bad name by placing ritual requirements above the human requirements of treating employees kindly, and of treating animals without cruelty.

We are not inclined to either extreme. It is hard to regard someone who stands convicted of defrauding banks of some $30 million as a saint. It is hard to regard someone whose defamers include the likes of PETA as a devil. Our take is different. We believe, although admittedly without firsthand evidence, that the root of Argriprocessors’ criminality was its blithely operating in a misplaced spiritual vacuum, oblivious to niceties in the law and of its own impact on the rural Iowa society around it. The mental modus operandi seemed to be: We’re doing a mitzvah; nothing else counts.

Be this as it may, we have waited for the criminal proceedings to play out. Here is what we have:

First, an acquittal on all immigration charges, which should give pause, especially to those in the Conservative Jewish community who regarded Rubashkin’s behavior as necessitating a new, ethical kosher seal.

Second, a conviction on fraud charges with a sentence of 27 years, a legal determination that should give pause to those in the Orthodox community who regarded Rubashkin as a saint.

If Rubashkin’s conviction is upheld, those who have condemned Rubashkin will be vindicated. If his conviction is overturned, those who have stuck by him through thick and thin will be vindicated (though we would still doubt the charges of anti-Semitism; as one of his own lawyers has said, no responsible person has made that charge).

Either way, Rubashkin’s 27-year sentence raises serious questions about fairness in the federal judiciary. Locally, and unfortunately, we have a basis for comparison. We have had the unpleasant experience of watching one of our own kosher purveyors, Arnie Zaler, convicted of financial fraud. He was sentenced to serve three 15-year sentences concurrently. Even those 15-year sentences were “enhanced” by the judge. Still more, this was not Zaler’s first conviction. He had already served time for similar crimes. Not only that, he fled the country for a year to escape prosecution.

Now here is Rubashkin, not a repeat criminal. He was a first-time offender and he never fled. He, too, is convicted of fraud, albeit on a larger scale. Yet, Rubashkin gets 27 years, plus five years probation.

In sentencing Rubashkin, Judge Linda Reade followed an advisory “point” system. Comparing this system to the crimes of Zaler, the two criminals dovetail very closely. Yet, their sentences vary dramatically. Not to mention, where is the justice in one judge following these guidelines while another does not? Read the related news story for details of the sentencing

Something is wrong with this picture. There seems to be no consistency, and therefore no fairness, in federal sentencing. After all, if a court is “federal,” that is, national, there should be, by definition, consistency within federal sentences. The same crime in one state should earn the same sentence if committed in another state. Even allowing for the differences in each individual case, only a general consistency in sentencing effectuates justice.

We shall leave the potential reversal of Rubashkin’s conviction up the appeals judge. But even if the conviction is upheld, his sentence should be substantially shortened. Justice, after all, is the goal of the entire process.


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