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June 28, 2010

Op-Ed: Prosecution was overzealous in Rubashkin case

http://www.jewishjournal.com/opinion/article/op-ed_prosecution_was_overzealous_in_rubashkin_case_20100628

The unusually severe sentence of 27 years in prison for Sholom Rubashkin is a victory for a prosecution that from the outset pursued a win-at-all-costs strategy. But the success comes at a price, and not just to the 51-year-old man now facing a virtual life sentence, his wife and 10 children. The government’s handling of this case has sullied our justice system.

One recalls the prosecution’s opening salvo on the Agriprocessors kosher meatpacking plant in Postville in May 2008—the shock-and-awe raid, replete with a Black Hawk helicopter, guns and wholesale arrests. The resources used were far disproportionate to what should have been necessary for an adequate pursuit of its investigation. The unprecedented incarceration of immigrant workers for the types of violations that were alleged and the violations of due process, in which immigrant workers were shuttled through the court system barely understanding the proceedings, set the tone for a grossly overzealous prosecution.

The prosecution’s Javertian tenacity was unwavering and remained punitive throughout the judicial process. A sale of the business, which the Rubashkin family sought after the indictment, would have alleviated much of the bank’s losses. But the government took steps that effectively deterred any viable buyer from taking real interest.

As part of the sale process run by the federally appointed trustee, the U.S. attorney took the extraordinary measure of requiring interested buyers or investors to sign an affidavit disclosing any continued involvement with the Rubashkin family. Simply put, the government sought to bar a buyer or investor from even consulting with a member of the Rubashkin family about the business, including those who have never been accused of any crimes or wrongdoing. At the sentencing hearing, the defense referred to this measure as the “No Rubashkin edict.”

To put this measure in perspective, one must understand that the Rubashkins were a family that for more than 30 years developed the distribution of kosher meat across the country into a $300 million business. The family members were the ones who knew the wholesalers, the distributors and all the customers. Without being able to consult with those who knew the business the best, the risk of failure for a buyer or investor was too great. The bidding was suppressed, and people backed off.

Further, after the appointment of the trustee, the government took the remarkable position of threatening forfeiture and seizure of the company’s assets. This action further diminished the value of the company and exacerbated the bank’s loss. Since sentencing is informed in part by the magnitude of loss, one must conclude that the prosecution’s entanglement in the sale served ultimately to increase the number of years Sholom Rubashkin will spend behind bars.

Drawing attention to the prosecution’s excesses does not, of course, excuse the mistakes made by Sholom Rubashkin. The Orthodox Union after the indictments required that he step down from management as a condition of our providing kosher certification of his products. Rubashkin himself has acknowledged that he did not have the experience or skills suitable to run a large food operation. He was convicted of bank fraud and should pay his debt to society. But it is without question that there has been a troubling lack of balance in the prosecution of this case.

Perhaps most telling is the letter written by no less than six former attorneys general of the United States, from Ed Meese to Ramsey Clark, expressing shock at the life sentence originally proposed for Rubashkin by the U.S. attorney.

As that letter stated, “The potential absurdity of the sentencing guidelines are on full display in this case because, at least according to the government’s proposed calculations, the advisory sentencing guidelines here recommend a life sentence for Mr. Rubashkin. 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, non-violent offender whose case involves many mitigating factors and whose personal history and extraordinary family circumstances suggest that sentence of a modest number of years could and would be more than sufficient to serve any and all applicable sentencing purposes.”

From the beginning, the government’s case was based on misconceptions of the family and the plant. The recent acquittal of Rubashkin on state charges that he knowingly allowed minors to work at Agriprocessors is further testimony to this false impression created by the U.S. attorney, as well as the Iowa attorney general.

This was not a case of someone embezzling money for personal gain. He leveraged everything he had for the company. He mortgaged his own home in order to stave off the company’s bankruptcy. He did not seek personal gain at the expense of others. He was simply trying to keep his business afloat.

The Iowa attorney general and the U.S. attorney, while ostensibly seeking justice, have instead destroyed a company, shattered the lives of hundreds of families and eviscerated the economy of a region. Justice has not been served in this case; indeed it has been diminished.

(Rabbi Menachem Genack is the chief executive officer of OU Kosher.)

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