In praise of Trump’s decision to commute Sholom Rubashkin’s sentence.

In Praise of Trump’s Decision to Commute Sholom Rubashkin’s Sentence

In Praise of Trump’s Decision to Commute Sholom Rubashkin’s Sentence

The law, lawyers, and the court.
Dec. 22 2017 1:13 PM

Trump Did a Good Thing

In praise of the president’s decision to commute Sholom Rubashkin’s sentence.

Kosher Slaughterhouse Trial
Sholom Rubashkin during his trial at the Black Hawk County Courthouse on May 11, 2010, in Waterloo, Iowa.

Christopher Gannon/AP Images

Sholom Rubashkin, whose 27-year sentence President Donald Trump commuted on Wednesday, is a corrupt criminal who deserves punishment for his misdeeds. The Rubashkin case was nevertheless a criminal justice scandal, and Donald Trump was absolutely right to commute his draconian and constitutionally defective sentence. The only shame here is that Trump will almost certainly decline to grant clemency to other prisoners whose cases are just as egregious.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

Rubashkin’s crimes are well-documented. As the chief executive of a large kosher meatpacking plant in Iowa, Rubashkin allegedly hired hundreds of undocumented immigrants, including some minors. He also swindled his lenders out of millions. In 2008, federal agents conducted a massive raid on his slaughterhouse. Prosecutors charged him with violating child labor and immigration laws but eventually dropped those counts and focused exclusively on his financial deceit. A jury ultimately convicted Rubashkin of money laundering and bank fraud. Prosecutors recommended a sentence of 25 years, a stringent punishment for a nonviolent, first-time offender.

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But U.S. District Judge Linda R. Reade decided that the government’s proposed sentence was insufficiently harsh. She sentenced Rubashkin to 27 years behind bars, more time than the chief executives of Tyco and Enron faced. This fact alone is extremely troubling. Reade, it seemed, decided to factor in Rubashkin’s alleged immigration and child labor crimes even though he was not convicted of any immigration offenses. In fact, a jury acquitted Rubashkin of child labor charges in a separate state trial. Reade, who routinely hands out ruthlessly long prison terms, appeared to be punishing Rubashkin for crimes not proved at trial, a clear violation of his constitutional rights.

The disproportionality of Reade’s sentence was not the only infirmity in the case. Documents obtained by Rubashkin’s lawyers reveal that Reade began meeting with prosecutors 10 months before the 2008 raid. She asked federal agents for a “final game plan” and a “briefing” on the raid. In addition to allegedly strategizing with prosecutors, Reade preapproved plea deals offered to Rubashkin’s employees. As Ronald Rotunda, a law professor who wrote a brief for the National Association of Criminal Defense Lawyers urging an appeals court to grant Rubashkin a new trial, explained: “Judges should not be so closely involved with the prosecution. A natural reading of the e-mails gives the unfortunate conclusion that the judge, having been invested in this elaborate raid, felt she had to have something to show for it.”

The American Civil Liberties Union supported Rubashkin’s quest for a new trial, as did dozens of former Justice Department officials, including two attorneys general, four deputy attorneys general, and two FBI directors. But ultimately, the appeals court ruled against Rubashkin on the grounds that “the evidence he presents is unlikely to result in acquittal.” Since then, Reade has been caught up in a new ethics scandal: Her husband purchased stock in private prison firms five days before a huge immigration bust—a raid that Reade approved and that sent hundreds of immigrants to private prisons.

Prosecutors are not only accused of colluding with Reade; they also allegedly interfered with Rubashkin’s bankruptcy proceedings to increase the length of his sentence. In the United States, the length of a sentence for bank fraud depends in part on the amount of loss to creditors. Assessors had initially valued Rubashkin’s business, Agriprocessors, at $68 million. But prosecutors allegedly intimidated nine prospective buyers out of purchasing Agriprocessors by claiming, falsely, that the government would seize its assets following the bankruptcy sale. Because of this harassment, each prospective buyer walked away from the sale, and Agriprocessors sold for a paltry $8.5 million, meaning creditors would suffer a major loss—a fact that dramatically increased Rubashkin’s sentencing range.

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Equally troubling was prosecutors’ justification for revoking Rubashkin’s bail. The government argued that Rubashkin presented a heightened flight risk because he is Jewish and might therefore flee to Israel. Rubashkin is an American citizen born in Brooklyn with no property or assets in Israel whose family lives in the United States. He expressed no intent to escape to Israel. But the prosecution argued that Jews pose a greater flight risk even if they have no Israeli connections. The magistrate judge accepted this argument and revoked Rubashkin’s bail—despite the fact that the government’s reasoning plainly violates the federal Bail Reform Act, which bars consideration of ethnicity or religion.

Taken together, these irregularities suggest Rubashkin’s prosecution and prison sentence were an egregious miscarriage of justice. They explain why dozens of members of Congress, Democrats and Republicans, wrote letters in support of Rubashkin. Trump’s commutation, the first of his presidency, was just and proper. Rubashkin spent more than eight years in prison. It was time for him to go free.

The same is true of thousands of other federal prisoners languishing behind bars. Rubashkin was able to make his case a cause célèbre due in part to his Washington ties, which he established through political donations, mostly to Republicans. Most federal convicts aren’t so well-connected. Like his predecessor, Trump should focus on commuting the sentences of drug offenders who face decades in prison for nonviolent crimes, many of whom were sentenced under laws that have since been softened. He should also consider clemency for violent offenders who have been rehabilitated. And, perhaps most obviously, he should look at the thousands of other excessive sentences Reade has imposed, like the 30-year sentence she handed out to a man in 2016 for selling synthetic marijuana.

Trump won’t do any of that, of course, because these victims of a criminal justice system gone awry don’t have the clout to force the issue onto his desk. Even worse, his administration is reviving policies that will prolong sentences for drug offenders and is striving to quash bipartisan criminal justice reform in Congress. This selective and inconsistent clemency may create the impression that Rubashkin got special treatment because of his political contributions and connections. He probably did—and that’s OK. It is better to commute one unjust sentence than none at all, and Sholom Rubashkin isn’t a bad place to start.

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