Consider a man who has ten kids, is an active participant in his town, runs a business that provides a needed service for his religious community, and has never before been accused of a crime. Imagine that this man is convicted of financial fraud that is tenuously linked to large societal monetary loss. The alleged fraud served to keep the community business afloat, not to fund personal extravagances.
What type of punishment would this man deserve? A prison sentence? If so, how long? One year? Three years?
But what about 27 years?
That’s the penalty recently imposed by a judge in the Northern District of Iowa on Sholom Rubashkin, owner of Agriprocessors, a Kosher meat processing plant in Potsville, Iowa.
If you think this penalty is extreme, then you’re in good company. Six former United States Attorneys General and many former senior officials in the Justice Department signed a letter stating that the sentence was extreme and that the case should be reconsidered.
Washington Legal Foundation, representing 18 noted law school deans and professors, former federal judges, and former prosecutors, added its voice to the opposition on Monday, January 10th by filing a brief asking the U.S. Court of Appeals for the Eighth Circuit to vacate the sentence and remand it to another federal trial judge for resentencing. WLF’s brief was authored with the pro bono assistance of Professor Douglas Berman—a sentencing expert who maintains the Internet’s leading blog dedicated to sentencing issues, Sentencing Law and Policy.
WLF’s brief makes three arguments: First, that the district court’s calculation of the guideline range was contrary to the Sentencing Guidelines’ instruction and related jurisprudence; second, that the district court largely ignored the Supreme Court’s repeated admonition that a district court must not presume reasonable a sentence within the calculated Guidelines range; and third, that the functional life sentence given to Mr. Rubashkin (who is currently 51 years old) is incompatible with his personally history and is substantively much greater than necessary to comply with the purposes of sentencing set forth by Congress.
Cases like Mr. Rubashkin’s represent the increasingly over-federalized and over-criminalized business world that we are living. Mr. Rubashkin has fallen victim to a 25-year-old federal guideline that addresses activity in draconian terms that had already been (better) addressed by existing federal law and state law.
Washington Legal Foundation has actively combated this development for the past 30 years. A hallmark in our opposition to this trend is our recently released Special Report on the Federal Erosion of Business Civil Liberties (Second Edition) and the accompanying Timeline.
The gravity of this issue is perhaps best evidenced by the ideologically broad coalition of groups working to counter overcriminalization. In this particular case, the National Association for Criminal Defense Lawyers has also filed a brief on matters of overcriminalization, and the ACLU Iowa chapter filed a brief on the violation of Mr. Rubashkin’s due process rights and his need for a fair trial.
WLF regularly publishes and litigates on this important topic. To follow our work, please visit our website.