YU Law Professor: Life in Prison for Rubashkin?!


madoff-rubashkinHarlan Protass writes in the Des Moines Register:

Sholom Rubashkin will be sentenced April 28 for his part in a multimillion-dollar bank fraud scheme. He stands convicted of some very serious federal crimes, and deserves to spend time behind bars. But if you believe that the punishment should fit the crime, you might find yourself arguing for a little compassion instead when it comes to prosecutors recommending Rubashkin should spend life in prison.

Rubashkin was prosecuted in federal court, where sentencing guidelines largely dictate prison term length. Those guidelines sort offenders into one of 43 “offense levels” based on different aspects of their crimes. Higher offense levels reflect more serious conduct, and give rise to longer sentences. In financial fraud cases, offense levels are determined mainly on the amount of money lost.

This makes objective sense. A $50,000 fraud is (all other things being equal) less serious, and deserving of a shorter sentence, than a $500,000 fraud. But when it comes to large-scale fraud cases – like that in which Rubashkin was involved – the guidelines’ grounding in mathematics sometimes results in sentences disconnected from any common sentencing sense. Indeed, they fall within the realm of prison terms usually reserved for Mafia bosses, major international drug traffickers and terrorists.

Just ask Jeffrey Skilling. Losses to Enron shareholders of more than $1 billion largely determined his 24-plus year sentence. Or speak with Bernie Ebbers, WorldCom’s former chief. He got 25 years based mainly on the $2.2 billion in losses suffered by his company’s shareholders. Sure, these men wreaked enormous financial havoc. But it’s hard to contend that they deserved prison terms longer than the average sentence for murder (23 years) or kidnapping (18 years).

Of course, it doesn’t have to be this way. The Supreme Court’s landmark decision in United States v. Booker empowered judges to use old-fashioned common sense to cabin guidelines gone wild. And its decision in Kimbrough v. United States authorized judges to impose sentences at variance from federal guidelines that don’t rest on empirical data or national experience. In a word, judges today are allowed to consider factors other than federal guidelines when figuring out what sentence to impose, such as the history and characteristics of the defendant. For Rubashkin, that means, among other things, his deeply religious background, contributions to the community and 10 children.

And some judges have done just that. For example, Ronald Ferguson – the former CEO of reinsurer General Re – was convicted of having engineered a sham transaction to inflate the balance sheet of insurance giant AIG. Federal guidelines recommended life imprisonment. Instead, a Connecticut judge sentenced him to two years in prison. Likewise, a Texas judge imposed a sentence consistent with the guidelines – more than 24 years – on Jamie Olis, a former Dynegy accountant convicted of a series of financial frauds. When presented with the opportunity to reduce Olis’s sentence after the Booker decision, that judge imposed a six-year jail term, finding that “a sentence within the applicable guideline range would not be reasonable.”

As most defense lawyers (and their clients) know, however, judges generally still hew closely to the guidelines and their loss-driven sentence recommendations. And that’s the predicament Rubashkin faces April 28. This isn’t to say he should be let off the hook entirely. Rather, the penalty Rubashkin faces should be fair, just and reasonable. Unfortunately, the scheme under which he’ll be sentenced – which recommends life in prison – is anything but.

{Des Moines Register/Matzav.com Newscenter}


  1. Your putting Sholom Mordechai Rubashkin’s picture together with Madoff is an ‘incriminating graphic’. You know a picture is worth a thousand words, and yet you placed them together. There is no comparison in their situations. Shame.

  2. To Notnice (commenter #1): In school, didn’t you ever do a “compare and contrast” exercise? The whole basis of the article is to do just that: compare and contrast Rubashkin and others who were convicted of far MORE serious financial fraud, but nevertheless got substantially LESS than the life sentence that Rubashkin is threatened with. You are reading much to much into the juxtaposition of these photographs…it is quite appropriate to the tenor of the article.

  3. I think that Matzav put them together to show that something is wrong with the way prosecutors have handled this case. He is being treated like he is Madoff and obviously there is a world of difference between the 2.

  4. Vehee Ratzon, ShaHashem Yaazor, that the malachei chabalah involved in this case zollen shtarben a meesa meshuna before April 28th.

  5. Bubby, are you wishing death upon government authorities in a public forum? Is this behavior going to achieve your goal of mercy for this prisoner? Really?

  6. The headline on this article is deceptive. Harlan Protass is not a “YU Law Professor”. He is an attorney in private practice, specializing in criminal defense and sentence reduction. Offices on Madison Avenue. He may give lectures at YU as an outside teacher – but he is NOT a YU law professor. I wouldn’t be surprised if he was paid to write this article – it is just a matter of parnosa.

  7. Informants were spreading like wild weeds in the land of Israel and Rabbi Yochanan ben Zakayi was deeply confused.
    After the destruction of the Mikdash, after the zealous Markets’ killers-Sacareii,after the news sects undermining Judaism, after the Hellenists Jewry-Reform, and the jealous Kohanim-ultra orthodoxy, came The informants… lamalshinim ve laminim al tehy tikvah not in this world and not in the world to come.