The Sentencing of Sholom Rubashkin

Tomorrow, the Supreme Court is expected to announce whether it will review the case of Sholom Rubashkin , who 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. Those ex parte meetings, as well as how the judge arrived at the functional life sentence for Mr. Rubashkin, are the grounds for the cert petition the Court is considering today.

Unless the Supreme Court intervenes, Mr. Rubashkin will be nearly 80 years old before he returns to his family. How could such a thing have happened?

While Judge Reade and an overzealous, over-the-top team of prosecutors have come under a great deal of criticism, they weren't acting alone. Congress and a body called the United States Sentencing Commission share a lot of blame for making the absurd sentence imposed on Mr. Rubashkin possible. Together, they have created and inflated sentencing guidelines for fraud cases that routinely call for the kind of outlandish sentences like the one Mr. Rubashkin is serving.

As FAMM and others have noted previously, the Sentencing Commission, frequently goaded by Congress and the Department of Justice, has established recommended sentences for fraud cases that are, in the words of one of the judges considering them, "a black stain on common sense." Another has lamented "the utter travesty of justice that sometimes results from the guidelines' fetish with absolute arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense."

From 1987, when the guidelines were first introduced, to 2001, the Sentencing Commission repeatedly revisited the fraud guidelines (originally designed to impose "short but certain" terms of imprisonment), adding enhancements that, when applied at sentencing, increased sentences for a variety of factors. Then, in 2001, the guidelines got a complete makeover, and sentences were further increased based on the amount of loss in a case. But that was not the end. Congress, irked by corporate scandals, turned right around and ordered the Sentencing Commission to again increase sentences. It did so with a raft of amendments that increased fraud sentences across the board and enhanced sanctions based on factors that are present in nearly every major fraud. The Affordable Care Act provided yet another opportunity for new, higher sentences that lawmakers could not pass up.

The resulting guidelines for fraud suffer from two major weaknesses that expose first-time offenders like Sholom Rubashkin to life in prison.

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, who can and frequently do seek lengthy terms of incarceration, sometimes as an inducement to defendants to plead guilty quickly and cooperate with the government in exchange for a lower sentence recommendation. Decisions about which charges to bring, which to bargain away, and what sentence to recommend can take place off the public record, behind the closed doors of a prosecutor's office.

So, while it is easy to point the finger at the judge in this case, Congress, the DOJ and the Sentencing Commission have all acted to make harsh sentences like the one Judge Reade imposed the norm. Indeed, more and more judges are using their authority to depart, including from excessive fraud guideline.

Happily, the U.S. Sentencing Commission, at the urging of the Department of Justice -- which has come to see that something is wrong here -- is undertaking a multi-year review of economic crime sentences.

Hopefully, Mr. Rubashkin's case will be heard, and he won't have to wait for a fair punishment.