Overzealous Prosecution Diminished Justice in Rubashkin Case


rav-menachem-genackBy Rabbi Menachem Genack

The unusually severe sentence of 27 years in prison for Sholom Rubashkin is a victory for a prosecution that pursued, from the outset, a win-at-all-costs strategy. But the success comes at a price, and not just to the 50-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 their 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 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.

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.

To put this measure in perspective, understand that the Rubashkins were a family that developed the national distribution of kosher meat into a $300 million business. They 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, 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 length of Sholom Rubashkin’s sentence.

The prosecution’s excesses do not, of course, excuse the mistakes made by Rubashkin. OU Kosher, after the indictments, required that he step down from management as a condition of our providing kosher certification of his products. He 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.

Perhaps most telling is the letter written by six former U.S. attorneys general, expressing shock at the life sentence originally proposed by the U.S. attorney for Rubashkin.

From the beginning, the government’s case was based on misconceptions of the family and the plant. The recent acquittal of Mr. 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.
The Iowa Attorney General and the U.S. attorney have destroyed a company, shattered the lives of hundreds of families and eviscerated the economy of a region.

Justice has not been served. It has been diminished.

Rabbi Menachem Genack is chief executive officer of OU Kosher, which provided kosher certification for the Agriprocessors meatpacking plant in Postville. Comments: oupr@ou.org

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