Via Doug Berman, former Georgia representative and Libertarian candidate for president, Bob Barr, presents an op-ed in the Atlanta Journal-Constitution on the sentencing of Sholom Rubashkin from his management of a large kosher slaughterhouse and meat packing plant in Iowa.
Rubashkin’s crimes began with hiring 389 undocumented workers, and stretched to the usual assortment of bank fraud based on his diversion of monies from a bank account that was supposed to collateralize debt to accounts that would falsely increase the appearance of his company’s profitability. Fraud for sure, but . . . fraud worthy of a 27 year guidelines sentence for a 50 year old man?
Barr notes that Rubashkin’s sentence is really a life sentence.
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.
Barr notes that people are sentenced on acquitted conduct.
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.
Barr notes that the government can manipulate the extent of “loss” to enhance a sentence beyond the loss caused or intended by the defendant.
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.
Darn, that Bob Barr gets it. If only he was similarly brilliant while he sat in the House of Representatives, when he could have actually done something about it. Or when he was United States Attorney for the Northern District of Georgia. It’s great that Barr now comprehends the issues that criminal defense lawyers have been raising, arguing, challenging for decades. It’s just a shame that he didn’t get it when he could have done something about it.
Bob Barr is very smart. It’s too bad that he wasn’t so smart before.