Two years ago, Sholom Rubashkin stood in a federal district court in Iowa as a judge told him he would spend the next 27 years in prison. With a sentence like that, it would be reasonable to guess that Mr. Rubashkin was, perhaps, a second-time violent offender, a man with no moral compass who had committed some unspeakable act. He is, however a 53-year-old father of 10 with a spotless record known for his charity, religious convictions, and loyalty to both his family’s kosher meat business and his autistic son. So what was the crime that got him 27 years in a federal prison? Bank fraud. The jury found that Mr. Rubashkin’s business, Agriprocessors, had defrauded First Bank Business Capital out of 27 million dollars, a crime that would normally get a person about a 12-year sentence.
But why would anyone think it is necessary for a first time non-violent offender to be in federal prison for 12 years, let alone 27? One reason is, for decades, the number of non-violent offenders in our federal prisons has been increasing. The federal criminal code has ballooned to include over 4,000 separate offences, dealing with many problems that have traditionally been in the jurisdiction of state and civil courts. Many of these crimes are simply regulatory violations. Today, only 14% of federal prisoners are violent offenders.
On top of this, mandatory minimums, three strike laws, and other “tough on crime” initiatives are consistently increasing sentences. Thus, we are spending more tax dollars to keep people in a prison system for longer periods of time when they have committed an ever increasing number of federal crimes. Mr. Rubashkin is now likely to die in prison if his sentence is not overturned—because of dishonest book keeping and a judge’s highly questionable exercise of sentencing discretion. The bank, by the way, already sued Agriprocessors for the money. In other words, this crime has no victim. These trends in overcriminalization and sentencing simply have to stop.
That is, however, far from the entire story. Mr. Rubashkin’s original charges were related to employing illegal immigrants in his Iowa factory. The judge in his case, as his lawyers now know because of a Freedom of Information Act suit, was highly involved in the planning of Immigration and Customs Enforcement’s (ICE) raid of his business and the streamlining of the prosecution. Many people, including several former Attorneys General, are now calling for investigation into her involvement in the case. But at Mr. Rubashkin’s trial, she insisted that her meetings with ICE and the U.S. Attorneys who would prosecute Mr. Rubashkin were purely logistical, and she did not recuse herself.
The U.S. Attorneys originally gave Mr. Rubashkin 9,311 illegal immigration-related charges, which they reduced, somewhat inexplicably to 83 as the trial approached. The jury acquitted him on all counts. The bank fraud charge arose as a second offense. The prosecution claims Mr. Rubashkin should have alerted the bank to his impending trial when he took a loan out from them following the raid. That is the sum total of the crime for which Mr. Rubashkin could now spend 27 years in prison.
The judge, as expected, did not grant Mr. Rubashkin’s motion for a new trial that argued his sentence was unfair. This ruling was affirmed by the Eighth Circuit, and the case is now attracting national attention from a wide political and ideological range of legal experts and practitioners, politicians, and civil rights organizations. A history of this complicated case can be found here. And if you really want to dive into the relevant legal issues of federal court sentencing, the amicus brief that Justice Fellowship signed in support of this case going to the Supreme Court is here along with several other documents in support of overturning Mr. Rubashkin’s sentence.