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Prosec​ution in Rubashkin Case: Overzealous, and an Injustice

July 1, 2010 By:
Menachem Genack
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The 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 facing a virtual life sentence, his wife and 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, Iowa, in May 2008 -- a raid, replete with a Black Hawk helicopter, guns and wholesale arrests. The resources used were disproportionate to what should have been necessary for the 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 the prosecution.

The prosecution's tenacity 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 deterred any buyer from taking interest.

As part of the sale process run by the trustee, the U.S. attorney required interested buyers to sign an affidavit disclosing any involvement with the Rubashkin family. That is, the government sought to bar a buyer from even consulting with the Rubashkins about the business, including individuals who've never been accused of 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. Family members were the ones who knew wholesalers, distributors and customers. Without being able to consult with those who knew the business best, the risk of failure for a buyer was too great. People backed off.

After the appointment of the trustee, the government began threatening forfeiture and seizure of the company's assets. This action further diminished the value of the company and exacerbated the bank's losses.

Since sentencing is informed in part by the magnitude of loss, one must conclude that the prosecution's entanglement in the sale served to increase the years Rubashkin will spend behind bars.

Drawing attention to the prosecution's excesses does not, of course, excuse the mistakes made by Rubashkin. After the indictments, the Orthodox Union required that he step down from management as a condition of our providing kosher certification of his products.

Rubashkin 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 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.

The letter stated: "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 ... ."

The government's case was based on misconceptions of the family and the plant. The Rubashkin's acquittal on state charges that he knowingly employed minors at Agriprocessors is testimony to the false impression created by the U.S. attorney and 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 home in order to stave off the company's bankruptcy.

The Iowa attorney general and the U.S. attorney, while "seeking justice," have instead destroyed a company, shattered the lives of hundreds and eviscerated the economy of a region.

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

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