The Sentencing of Shalom Rubashkin

You don't have to kill someone -- or even be a major drug trafficker -- to get major time in federal prison.  It's a common misperception among the American public.  FAMM's Vice President and General Counsel, Mary Price, debunks that myth in this piece over at The Huffington Post, describing the story of Shalom Rubashkin, a first-time offender serving 27 years for a nonviolent offense:

Sholom Rubashkin ... has attained cause celebre status for the remarkable events surrounding his trial and sentencing. Everything about this case is BIG. Months of planning and hundreds of agents went into pulling off a 2009 raid at Rubashkin's kosher meat packing plant in Postville, Iowa. More than 375 workers were arrested -- many ultimately deported -- and hundreds of charges lodged against Rubashkin alleging child labor and immigration law violations. He was acquitted of every one.

Meanwhile, federal prosecutors transformed one count of bank fraud into more than 90 counts by the time the case went to trial. Rubashkin was convicted on most, and the government dropped its next bomb: It planned to ask the judge to impose a sentence of life in prison. This was too much for 23 former high-ranking Department of Justice officials and U.S. Attorneys. They sent an unprecedented letter to the judge decrying the audacity of the proposal. The government blinked and reduced its request to 25 years.

On June 21, 2010, Judge Linda Reade sentenced this first-time, nonviolent, well-regarded defendant to 27 years in federal prison.

Only after the trial did the defense receive stunning news. Judge Reade had met secretly and repeatedly with prosecutors and law enforcement in the months before the agents descended on the plant, helping to plan the raid and coordinate the processing of arrested workers. Legal experts cried foul, and Rubashkin's counsel raised serious questions about Judge Reade's objectivity and investment in ensuring a harsh outcome.

There are a number of problems with Rubashkin's case and sentence, but one of the biggest is that the sentencing guidelines for fraud offenses are in serious need of reform -- and provide serious temptation to prosecutors to abuse their un-reviewable power to charge:

First, the amount of monetary "loss," whether real or merely intended, has become the big driver of sentence lengths. The guideline does not account for intent, or even if the offender personally benefitted from the crime. People who offend to keep a business afloat are treated the same as those who offend for their own personal gain. The guideline also fails to differentiate between those who pose a significant danger of reoffending and those who will likely have learned their lesson.

Second, redundant sentencing enhancements for ubiquitous conduct, including for committing the fraud using "sophisticated means" or affecting 250 or more people, quickly inflate sentences beyond reason.

Such high sentences are very attractive to prosecutors ...

There's plenty of blame to go around for the sometimes absurdly unjust results in our system -- judges, prosecutors, Congress, the U.S. Sentencing Commission -- but what counts is taking action to fix them.  The U.S. Sentencing Commission is doing a review of the fraud guidelines right now, and FAMM is keeping a close eye on it.

We hope the future holds reforms -- and not more Rubashkins.