Life sentence disproportionate to Rubashkin’s crimes

By Brett Tolman

Having sat in the seat of the U.S. attorney during an immigration raid, I can tell you it is not easy balancing the interests of justice in such cases. Sholom Rubashkin was indicted on 163 counts of various financial and immigration-related violations arising out of the operation of the Agriprocessors kosher meat plant in Postville.

Rubashkin was convicted of multiple financial crimes and the dollar-loss amount is between $4.5 million as argued by the defense team or $27 million as argued by the prosecution. (The immigration charges, the reason for the investigation to begin with, were all dismissed after the financial case conviction.)

Under the federal sentencing guidelines, Rubashkin is at risk of being sentenced to life in prison if the sentencing judge follows the recommendations of the government.

Never, in my years as a federal prosecutor and over three years as the U.S. attorney in Utah, have I seen a case that required seven trips to the grand jury. Nor have I ever advocated for a life sentence, or anything near a life sentence, for a first-time offender in a financial fraud case.

Such a sentence would be equal to the sentence Rubashkin would receive if he had been convicted of first-degree murder. Even a sentence of 25 years still would be considerably higher than second-degree murder, aircraft hijacking, detonation of a bomb by a terrorist, racist attacks on a minority with intention to kill, rape of a 10-year-old child, photographing a 12- year-old in sexual positions, assault with intent to kill, kidnapping, shooting an innocent person during a drug transaction, rape or providing weapons to support a terrorist organization.

Quite a sentence for a man with 10 children (one of whom is severely autistic), no criminal history and an exceptional record of charity and community service. Especially as prosecutors never alleged that he had any intention of defaulting on payment of the loans he obtained.

The crimes Rubashkin has been convicted of are certainly not violent crimes. Notwithstanding this fact, the scales of justice are at great risk of being out of balance in the Rubashkin case.

No one is arguing that Rubashkin, having been convicted of federal felonies, deserves no prison time - even though in a recent, similar case, Mark Turkcan, who was charged with misapplying $35 million from the same bank as Rubashkin, over a 21-year period, was sentenced to just a year and a day. But is there any hope for sanity in sentencing and a fair administration of justice in the Rubashkin case?

The mechanism to temper prosecutorial overzealousness or the risk of a disproportionate sentence, is the temperance and wisdom of the judge. When the federal sentencing guidelines are not mandatory, judges are urged to consider all relevant sentencing factors set forth under 18 U.S.C. Section 3553(a), which has as its overarching concern that sentences are sufficient but not greater than necessary.

My hope in this case, and what should be the hope of anyone who has served in a position of trust in our government, is that the sentencing judge will exercise independent wisdom and temperance to ensure that Rubashkin is not sentenced in a disproportionate manner and that justice is not avoided.

It will not be justice if Rubashkin serves longer than recent national averages in white collar crime - roughly four to six years in prison.

Brett L. Tolman of Salt Lake City is former U.S. attorney, District of Utah, and now is an attorney in private practice with Ray Quinney & Nebeker. Comments: www.rqn.com