The Conspirator in Chief at Volokh raises a fascinating conundrum from the Magistrate Judge’s denial of bond in  U.S. v. Rubashkin out of the Northern District of Iowa.  The defendant there was detained in a bank fraud case, at least in large part, due to the fact that he is Jewish.  From Eugene’s analysis:

“Under Israel’s ‘Law of Return,’ any Jew and members of his family who have expressed their desire to settle in Israel will be granted citizenship.” 

Nor does the opinion point to other factors that closely link Rubashkin to Israel, the way that any defendant could be closely linked to a foreign country in which he has lived a long time; the focus is on Rubashkin’s ethnicity and the legal consequence that it has in Israeli law, not on his citizenship or his past life history.

The argument proffered by the defense against detention addressed the obvious ramification of the Magistrate Judge’s rationale, that all Jews would be subject to detention if this reasoning was valid.

 [T]here are clearly narrower, tailored measures, that would be effective rather than subjecting Jews to a different set of standards. Rather than locking Jews up with greater frequency, the United States could rely on the general array of bail conditions, and then utilize the valid, streamlined, regularly-invoked extradition treaty with Israel in those few cases where the defendant actually flees. Certainly it is better to have the government on rare occasion be forced to resort to this streamlined extradition treaty than to brand over five million Americans as bail risks.

This argument failed to persuade the magistrate.

Aside from various arguments concerning the operation of the “Law of Return” and extradition, is it constitutional to paint all adherents of a particular religion with being a per se flight risk?  Notably, this comes from the Northern District of Iowa, where I would think there are fewer Jews then one could find on any block in Brooklyn, and may reflect a lack of appreciation that being Jewish may not be quite as odd as some judges think, or that Jews are not particularly likely to abscond and run off to Israel simply because they are Jewish. 

The magistrate concluded that there is no combination of conditions that could assure that the defendant will not flee to Israel.  The fact that he could, if he so wanted, may be true, but it is similarly true of all Jews.  That said, in the absence of any specific basis to contend that this particular defendant would be inclined to do so, it is a rationale for the detention of all Jews.

Of course, the ease with which a defendant can flee the jurisdiction is a consideration at a detention hearing, though it’s usually tempered by some showing of inclination specific to the individual defendant.  There was some additional information that suggested that a potential co-defendant might have fled, and that this defendant might be inclined to flee, though without any basis for the Israeli connection.

Thus, the issue is squarely framed whether it is constitutional to detain Rubashkin for, in essence, being Jewish.  At first blush, it seems that it must be.  How could an individual, based on his being a member of a religion, be denied reasonable bail, as promised by the 8th Amendment?

The government has yet to respond to the defendant’s argument. 

Update:  Numerous comments were posted to the effect that a few people read the Mag’s decision as finding that there was a substantial factual basis to believe that Rubashkin might flee to Israel.  While I totally disagree with this reading of the decision, my problem with these comments is that this wasn’t the gravamen of the issue raised by the post, and I, being the prickly sort of person that I am, was not interested in having what I considered to be a worthless discussion of a non-issue rather than a discussion of the issue raised by the post. Similarly, just because someone raises a tangential argument doesn’t mean I have to explain why they are wrong before asking that the discussion be placed back on track.  For the commenters who disagree with my position, have any discussion you want, just not here. 

For future reference, I will simply ban commenters who insist, and persist, on going onto their own topic.  I know you are all fascinated by your own thoughts, but this is my blawg.  Remember, nobody forces you to come here.   Have I been unclear about this?

By the way, I’m not the only blawger who is getting tired of having commenters assume that they run the show.