By Bob Barr
Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison – in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.
While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone.
The U.S. has the largest prison population per capita of any nation in the world; and each year thousands of men and women are sentenced in federal court (and many more in state courts) to terms of incarceration ranging from a few months to multiple life terms. The high profile cases make plenty of news – Bernie Madoff, Enron’s Kenneth Lay, Oklahoma City bomber Timothy McVeigh, and many others. Well-known cases such as these reflect circumstances in which individuals clearly guilty of very serious criminal intent, committed serious offenses and were fully deserving of the sentences meted out.
What the average, non-lawyer citizen – and perhaps even many lawyers who do not practice federal criminal law – probably fails to realize, is that in many other cases, such as Rubashkin’s, men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s, can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government. In Rubashkin’s case, for example, even though the government initially charged him with immigration-related crimes, he was never actually tried for such activities (and, in a subsequent, state court trial, was found innocent of similar charges). Yet, these alleged violations could be and were used to increase his eventual sentence for the financial crimes of which he was convicted.
Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence. This, too, happened to Rubashkin.
Rubashkin also saw his punishment enhanced because of the manner in which the judge elected to calculate the amount of the “loss” to the Iowa bank that extended a revolving line of credit to his meatpacking business. The alleged loss was dramatically increased because the federal government itself prevented the company from being sold to buyers in a bankruptcy proceeding who were ready to pay far more for the company than the government eventually approved. In other words, the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.
These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.