By Conrad Black
As cases bubble up almost every week illustrating the Gonzo-draconian constant miscarriage of the U.S. justice system, and even Attorney General Eric Holder is calling for a more lenient sentencing policy and a reduction of the bloated prison population (the U.S. has six to twelve times the number of incarcerated people per capita of Australia, Canada, France, Germany, Japan, and the United Kingdom), the Sholom Rubashkin case has become particularly notorious. Sholom Rubashkin underwent rabbinical training and was a Jewish educator very active in many charities and universally regarded among his acquaintances as a man of great generosity and unblemished ethics. He and his wife have been married nearly 30 years and have raised 10 children. His father, Aaron Rubashkin, bought a derelict plant in Postville, Iowa, and turned it into a kosher slaughterhouse called Agriprocessors Inc., and his son, Sholom, as well as several siblings, joined him in the management as the business grew to employ over 1,000 people.
Sholom Rubashkin’s legal travails arose on two fronts: first, on the financial front. The business was financed with a conventional line of credit from First Bank Business Capital Inc., a subsidiary of St. Louis-based First Bank. The line was secured by an assignment of Agriprocessors’ inventory and receivables, with a right to draw up to 50 per cent of the book value of inventories and 85 per cent of the quantum of outstanding receivables, percentages that were realistically well secured on the company’s history of sales and receivables collection. Every day the company controller reported the current balances of the pledged assets to the bank, and cash as it came in was regularly deposited in an affiliated bank.
In 2008, nine years after these banking arrangements were made, the Immigration and Customs Enforcement Agency staged a brigade-sized raid by 600 agents, with helicopter accompaniment, on the Agriprocessors plant and arrested 389 allegedly undocumented and mainly Hispanic workers. This naturally had a negative impact on the company’s business, but banking arrangements continued for five months until the loan was called in October 2008. A month later, Agriprocessors filed for bankruptcy protection, five days after Sholom Rubashkin was arrested on a complaint based on alleged immigration-related offenses.
It was at this point that the rabid dementia so pandemic among American prosecutors began to erupt. There were an unheard of seven superseding indictments, including the first ever prosecution under the 90-year-old Packers and Stockyards Act, for paying a cattle dealer eleven days late.
Following his second indictment, Mr. Rubashkin was detained for 76 days because he was Jewish and the prosecutors were concerned that he might flee the United States for Israel to take advantage of that country’s right of return. This flourish caught on infectiously with other prosecutors around the country, and it has been insistently protested by a wide alliance of Jewish and other organizations as clear sectarian discrimination.
The financial case against Mr. Rubashkin was based on allegations that when business became difficult, he forged some invoices to exaggerate receivables, and sent some incoming cash to cover trade payables in preference to paying down the lender. There was no suggestion that he pocketed a cent for himself, but he was apparently guilty of a relatively minor commercial fraud which did not in itself cost the lender and assisted in keeping the business going. However, prosecutiamania now possessed the local authorities, and the financial prosecution was reinforced by the second half of the pincers operation, a preposterous 9,311 counts of child labour. This helped sink the business and put almost everyone out of work, but almost all the charges were dropped on the eve of trial and the rest were thrown out by the jurors.
This entire onslaught on the subject of child labour was completely spurious. Only after the trial ended did it come to light that Sholom Rubashkin’s judge, Linda R. Reade, had cooperated completely with, and was effectively an important member of, the prosecution. A herniating mass of Immigration and Customs Enforcement (ICE) memoranda and emails were eventually adduced to show that starting more than a year before the military-scale descent on the Agriprocessors plant, Judge Reade started meeting with prosecutors to plan the attack on Mr. Rubashkin. In the ensuing year, she repeatedly met with prosecutors, was involved in many aspects of the case, and was even referred to in one ICE email as a “stakeholder” in the case.
Judge Reade did not disclose her involvement in the prosecution and did not follow clear guidelines that I believe required her recusal on the trial itself. Instead she sat through the trial and the sentencing hearings, and then strained the guidelines and even the prosecution’s requested sentence and gave Mr. Rubashkin a staggering 27-year sentence for a first-time, non-violent commercial offense designed exclusively to save his business and its employees, and of which there was no victim. There is no modern American precedent for such severity (although American criminal sentences are vastly more severe than those of any other advanced country).
This case has understandably caused widespread outrage in legal circles in the United States, as has the judge’s apparent bias and her dragging American justice into disrepute, if that is still possible, by being an active member of the prosecution as the case was being put together and then imposing a pitiless prosecution on the facts and on any questions of proportionality or mercy for a widely admired and generous member of the community. The sentence, which may well effectively be a life sentence for an offense that does not normally carry remotely as heavy a penalty, by a scandalously compromised and biased judge, has been strenuously protested by 75 law professors and former prosecutors, 51 U.S. congressmen, six U.S. senators, 86 attorneys general, U.S. attorneys, and federal judges, including former attorneys general of the United States Ed Meese and Dick Thornburgh and FBI directors William Sessions and Louis Freeh.
Scores of thousands of people have attended rallies for Mr. Rubashkin, 52,000 people signed a petition for mercy on his behalf sent to the White House, three million dollars has been raised and donated pro bono to pay for his legal defense, and Attorney General Holder was questioned closely about the case and agreed to look into it when he appeared before the House Judiciary Committee on May 3, 2011. This is unfortunately not a particularly unusual phenomenon, but is a glaring case of the judge just being a member of the prosecution and of the workings of the American kangaroo system that secures guilty verdicts in 99.5 per cent of cases, 97 per cent without trials, and has created a carceral state whose prisons bulge with the innocent and the over-sentenced. Even scores of people who have served prominently in that system are shocked by this mockery of justice and it will be a virtual self-judgment that the United States is not now in any relevant sense a society of laws at all in criminal matters if this result, which would appal Draco himself, is allowed to stand.