Nightmare of federal sentencing guidelines

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.

39 comments Add your comment

BigJake

June 28th, 2010
6:08 am

In the words of the late Ed McMahon, “You are correct, sir!” The inequity by which many judges rule their roost is growing, seemingly unchecked by any checks and balances by which this country was founded. And don’t get me started on the 9th Circuit Court of Appeals out on the left coast…

By the way, it was great to meet you on Saturday at the fund raiser for the Center for Family Resources. Thank you for taking time out of your busy – moving your offices – day, and I really enjoyed working with your wonderful wife selling raffle tickets for such a worthy cause.

Go Dawgs!

Coach Jeff
Kennesaw, GA

vracer

June 28th, 2010
6:19 am

Enough pity for the criminals. So he’s old. Can’t do the time, don’t do the crime.

Producer

June 28th, 2010
6:28 am

Federal minimum sentences are no different that “zero tolerance” policies at government schools. They make the judges not have to think about the individual circumstances for each case. Great job, feds. Pathetic!

Dave Briggman

June 28th, 2010
7:10 am

Except the guidelines, are I believe, only advisory. Judges are free to deviate from them as they desire.

Bob, why not really stir the pot and do a story on the bogus child support system? You know, the one “for the children”, but in Virginia makes it illegal to pay your child support in advance?

jt

June 28th, 2010
7:33 am

“It is a system that cries out for reform.”

No it cries out for nullification. If that doesn’t work, there are other ways.

And it isn’t a “bogus” child support system. It is an intentional system designed to destroy the family and demonize patriarchal authority.

George Carlin

June 28th, 2010
8:11 am

Why not legalize grass? That will raise some taxes to pay for the new health care bill and also free up some jail space for the real criminals.

fgdggdg

June 28th, 2010
8:21 am

They certainly will sentence you to time for crimes even being supposedly dropped in a plea deal offered. It is an odd system.

Americus Jacket

June 28th, 2010
8:44 am

But you don’t even mention the worst part of the system: The federal prosecutors use this power to long sentences to threaten defendants into plea bargains that would not normally be accepted. Let’s say I feel I’m innocent of charges in a white collar crime. The feds come in and say, “You can fight it, but if found guilty, we’ll give you 27 years. If you plead guilty, we’ll give you 3.” To me, this is just a poor system: If you demand your day in court, there may be a 24 year difference in your sentencing.

And remember: You must serve 90% of your time for a federal crime. Your example of the “kosher king” shows that white collar crime is much more severe on a first time offender than voluntary manslaughter in most state courts. If you get 27 years in state court, you will be out much earlier.

Jefferson

June 28th, 2010
8:56 am

Waste of taxpayer’s money. Make him broke, that’s what he did to others.

joe

June 28th, 2010
9:08 am

Another example of the Fed not taking common sense into account…that is what government is all about. Shocking…

Morrus

June 28th, 2010
9:12 am

Curiously, in a supposed anti-incumbent year, most of the departing are not retiring but seeking higher office. We may recycle more than we replace. The bad news is that a frustrating 114 seats still have but one contestant. Two of them aren’t even incumbents, meaning they will affect state policy without being vetted by voters. And I have to think that we’d be better off if many had run instead for the Legislature — and cut down on the number running unopposed. Georgia’s problems are numerous. They aren’t going away. There’s too much stale thinking at the Capitol, on both sides of the aisle. New voices would be welcome.

Sick&Tired

June 28th, 2010
9:29 am

“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 real definition of a life sentence is when you don’t get out at all, no matter how old or young you are at the time of your crime. It should definitely mean that the criminal dies in jail.

Will

June 28th, 2010
10:01 am

The impetus to change the sentencing rules came from judges who were given probation to felon criminals. I.e. child molesters and white collar crimes. Replace all those liberal judges who feel and replace them with judges who interpret the law. Less sentencing guidelines would be needed. As it is, the liberal judges have failed to keep criminals behind bars and assisted in filling the cemetaries.

j0hn

June 28th, 2010
10:03 am

The government bleeds good tax-paying citizens in order to put nonviolent offenders in jail. Couldn’t we find a way to have the offenders work/pay for their own upkeep? Maybe the state could even find a way to profit off of offenders instead of paying for them. I understand we have to use tax dollars to put violent people in jail. But can’t we just start issuing massive fines for nonviolent offenders instead of bleeding upstanding taxpayers? Regarding nonviolent offenders, the prison system is just yet another extension of the growing welfare state. Most everyone is already dependent on government. Pretty soon everyone will either be in the custody of the government or be employed by the government.

Lee

June 28th, 2010
10:12 am

27 years for a first-time non-violent criminal! this case is one massive stain on american justice!

Conjugal Conjobs Behind Barr's

June 28th, 2010
10:47 am

Next Barr will be complaining about all the sex in prison. And what about what a life sentence marriage has become? How did Barr get that close to a judge and not get a couple of years for being a frenemy of the court?

Ronan

June 28th, 2010
10:55 am

What do you expect? It’s the federal government. Take the three years and capitulate to the system, confirm that “we” are right to prosecute you or roll the dice and we’ll nail you to the wall. With 90% to serve before parole. It appears that there is a punitive element to the sentencing phase. “Don’t waste our time” is the clear message. Let the white collar types stay in a half way house, work a job during the day, anything to cut the cost of keeping them incarcerated. The cost to keep someone in prison for 27 years at $35,000 per year is almost a million dollars.

Zero tolerance equals zero intelligence.

Sam

June 28th, 2010
10:59 am

In response to this comment, “Enough pity for the criminals. So he’s old. Can’t do the time, don’t do the crime.”
I imagine this attitude comes from a lack of interest in the subject or plain laziness. There is a good reason the constitution separated power between government branches and put in place checks and balances. We are discussing a situation where one of those branches is out of control locking people up for life.

Will

June 28th, 2010
11:41 am

Sam

June 28th, 2010
10:59 am
Where were all of you when judges in New England states were giving child molesters probation? So harming children does not deserve a stiff sentence nor does swindling people out of their hard earned money.
I like it! Now we should take a closer look at lawyers who charge 40% fees for law suits. Now that is a crime!

Jordan

June 28th, 2010
12:27 pm

Yes it is! They sent my former brother-inlaw away for 10 years for white collar crime, and he was a financial genuis. He should have been used to work with businesses to build their businesses. He started in his garage and grew to a 200 Million dollar company in five years. They had him working in the kitchen washing dishes.

mort

June 28th, 2010
12:37 pm

a few of the comments mention the money rubashkin stole/swindled etc.

do you know of what you speak?

if the govt had allowed rubashkin to sell the company, the bank would have lost nothing!

also, this “illegal loan” got the bank $21 million in interest! do they have to pay that back to Rubashkin?

amzing how hurtful ignorance is.

Ragnar Danneskjöld

June 28th, 2010
12:58 pm

I see no purpose for a federal criminal code. There is no crime that states cannot adequately punish.

Whiz

June 28th, 2010
12:59 pm

Will said Stiff.

nelsonhoward

June 28th, 2010
1:46 pm

1st of all, there are sentencing guidelines that Judges have to go by. They cannot give the convicted any sentence that they would like to give them. 2nd, there were 86 fraud related counts lodged against him.. 3rd, we are talking 28 million dollars. 4th, considering that 96% of federal cases are plea bargained, Judges have a whole lot more experience with them than actual trial cases. The more cases they try the better they would be at it. Practice makes perfect.

joan

June 28th, 2010
2:45 pm

This guy Rubashkin is, apparently unconnected with any signifcant politician. Barry would have given him a cabinet post like the rest of the felons he has employed.

josh

June 28th, 2010
5:14 pm

you are so right its pathetic…lets pray this whole thing is overturned g-d bless you

StJ

June 28th, 2010
9:05 pm

…in comparison to the two Mexicans who were trafficking 150 guns, bayonets, and 10,000 rounds of ammunition and given a grand total of 55 days (10 days for one illegal and 45 days for the other). Writing a bad check would give you a harsher sentence.

What mandatory guidelines state that illegals trafficking guns get a slap on the wrist?

Brian

June 28th, 2010
11:47 pm

Free Rubashkin now! He is being crucified to make an example for all corporations that defy unions. Of course the sacrificial lamb has to be a Jew. Sickening!

Brian

June 28th, 2010
11:50 pm

One of the charges was that he paid for cattle a few days late (citing a law from the 1930’s that was never enforced as a criminal offense in history)! Can you believe a CRIMINAL charge of that sort?!!! They were out to get him from day one.

I'd LOVE to Be Your Realtor!

June 29th, 2010
9:02 am

The federal sentencing guidelines are not nearly the NIGHTMARE the Jive-Talking Marxist in the White House is.

1600 Pennsylvania AVE & Surrounding Neighborhood: Gradually Diminishing Property Values Since January 2009

Victor

June 29th, 2010
2:35 pm

May we remind Judge Linda R. Reade that she will be judged by the Judge of all Judges–Almighty G-D!

Ruven77

June 29th, 2010
3:06 pm

In a country where all its people are subject to arbitrary criminal prosecution, the government is run by criminals.

Having dealt with this system, I assure you, even the most upright and law abiding of us is not safe from the vengeance of the federal bureaucracy if they want to get you.

The federal judicial system, for a private citizen, is nothing more or less than a modern day Inquisition.
Eventually, after great and widespread suffering, any nation that is ruled this way must fall.
After enough of its people have either personally suffered, or been close to another who was unjustly persecuted, leaders are no longer admired, but feared and hated.

While people who are well fed, are not likely to rise up and revolt, unless they see a close friend or relative dragged away, and often not even then, neither will they continue to rouse themselves to the defense of a nation run by thugs, cronies, and secret fascists. As time goes on, more and more will turn their efforts and inventions to making themselves invisible to the system. They will make no effort to support the nation but hide their families and their assets from it. I’m sure this is happening. I’m sure we would all be surprised to know how many of our acquaintances have prepared back doors for themselves and their families to leave with overseas jobs or investments and foreign citizenships and passports.

We used to be a nation of laws where the Constitution ruled and restricted government from abusing its power and its charge. With the exception of certain historic flaws inherited from the Old World, we planned a republic, where the individual was sovereign and lived in free states, and where the government used it to serve and protect. Now the law is a bludgeon, the state’s rights and the Constitution are largely ignore except where it has been stripped of its meaning or perverted, as the ‘commerce clause has been, into a means to control the economy, the culture, and the people.

Unless you have substantial assets to convert to cash for a legal defense, guilty or innocent, you are unlikely to get stand much of a chance in federal court. Unless you are a celebrity, an iconic member of a protected class, like OJ, Martha Stewart, or Blagoavitch, few people will take the time to give your plight a second thought other than to scoff about some rich guy getting caught with his fingers in the cookie jar.
Like most of you, when I first heard of the Rubashkin case, more than a year ago, even with what I know about the system, I thought “He must have done something wrong”. Now, having spent some time to consider the facts and circumstances of the case, and compare them with what I know about how our Justice Dept works, I just want to mourn the passing of a great nation, gone and forgotten by a generation of foolish, lazy, and self-absorbed Peter Pans who know little of history and care less about the future they leave to their children.

Ruven77

Behind Barr's

June 29th, 2010
4:03 pm

Kobayashi was a fictional character in “the usual suspects”., (and HE wasn’t even real in the movie)

or were you forensic scientists trying to say, Kaiser Soze? (another fictional character)

The greatest trick you trolls ever pulled was convincing the blogosphere than you weren’t morons.

Eli Jones

June 29th, 2010
6:55 pm

“DID YOU KNOW THAT MUSLIMS ARE EXEMPT FROM OBAMACARE”

Has anyone heard of Dhimmitude? It means surrendering to Muslim Demands and paying Muslims a tax for the right to be non-Muslim: http://en.wikipedia.org/wiki/Dhimmitude

Why are Muslims and Christian Scientists exempt from being forced to carry Obamacare?

http://search.aol.com/aol/search?query=muslim+exemption+from+Obamacare&s_it=keyword_rollover

Unbelievable for America!

I had my doubts so I checked with Snopes. There is an exemption for the Muslims in the Health Care Bill. Obama supporters check it out yourself.

Had never heard the word until now—Type it into Google and start reading… Pretty interesting. Note that Muslims and certain other religions are exempt from the Obamacare penalties and it is supported by law. We are surrendering from within! The prez is leading us right down the path to total Muslim control and you don’t even care! Maybe you voted for him but now the truth comes out. Maybe you should rethink what you have done to our country.

Dhimmitude is the Muslim system of controlling non-muslim populations conquered through jihad. Specifically, it is the TAXING of non-muslims in exchange for tolerating their presence AND as a coercive means of converting conquered remnants to islam.

The ObamaCare bill is the establishment of Dhimmitude and Sharia muslim diktat in the United States . Muslims are specifically exempted from the government mandate to purchase insurance, and also from the penalty tax for being uninsured. Islam considers insurance to be “gambling”, “risk-taking” and “usury” and is thus banned. Muslims are specifically granted exemption based on this. How convenient. So I John Smith, as a Christian, will have crippling IRS liens placed against all of my assets, including real estate, cattle, cars and etc. and even accounts receivables, and will face hard prison time because I refuse to buy insurance or pay the penalty tax. Meanwhile, Louis Farrakhan will have no such penalty and will have 100% of his health needs paid for by the de facto government insurance at our expence. Non-muslims will be paying a tax to subsidize muslims. Period. This is Dhimmitude.

Dhimmitude serves two purposes: it enriches the muslim masters AND serves to drive conversions to islam. In this case, the incentive to convert to islam will be taken up by those in the inner-cities as well as the godless Generation X, Y and Z types who have no moral anchor or belief in God! If you don’t believe in Christ to begin with, it is no problem whatsoever to sell Him for 30 pieces of silver. “Sure, I’ll be a muslim if it means free health insurance and no taxes. Where do I sign, brother?” Now all you Obama voters get in line for your free stuff!… However, I suggest you don’t hold your breath!…

I recommend sending this email to all your contacts. This is desperately important and people need to know about it and what the past election has done to all of us!

PS Have you heard about the summit Obama is holding this month in DC for the future Muslim business leaders in the US? He wants to increase their ability to begin business opportunities in the US for the Muslim community! Better start looking for a country that doesn’t cater to the Muslims ~ Austrailia doesn’t because this country will be overrun by Muslims like Europe is currently experiencing.

And you thought our problem was only the illegal Mexicans!……

[...] is Justice? The Rubashkin Case Today a friend sent me a link to an Op-Ed in the Atlanta Journal-Constitution, by Bob Barr, regarding the case of Sholom [...]

Steve

July 13th, 2010
10:20 am

The US Government has spent $12M to raid the meat processing plant and to prosecute Mr. Rubashkin. (By the way, this was funded from tax payers money.) When prosecutors saw that there is no case on immigration charges, employing illegal workers, they scrutinized all documents in Mr. Rubashkin’s possession to come up with some sort of crime (After sending down 600 federal agents and orchestrating a massive raid, they did not wish to be seen as fools).

The prosecutors pursued this ‘newly found’ crime and originally asked for a life time sentence. Later on, after six former generals declared this absurd, only then did the prosecutors back down to request 25. However, Judge Reade found it necessary to sentence to 2 additional years, making it a total of 27.

It’s about time to get the judicial system back on track. Murderers, rapists etc. are freed to roam the streets after a few years, but prosecutors see it fit to lock up a non-violent businessman who has not caused any harm or monetary loss to anyone, had it not been for the malicious raid, which eventually forced Mr. Rubashkin’s business into bankruptcy.

sarah

July 19th, 2010
1:14 am

A disturbing trend in Iowa?

“It might seem superfluous to state that Jewish criminals belong in jail, however much good they might otherwise do and however religious they might otherwise be. That said, recent events in Iowa raise the possible spectre of a state that does not realize that accused or even convicted criminals who are Jewish do not deserve to be treated unfairly under the law, however much bad they might otherwise do…”

See full story:

http://ijn.com/editorial/1802-a-disturbing-trend-in-iowa

Sarah

July 22nd, 2010
11:47 am

Eric Holder Must Investigate Sentencing Disparities

http://is.gd/dAZXM

A few months ago, Attorney General Eric Holder took an important step in ensuring that all men are treated equally under our legal system. In a memorandum to federal prosecutors, he noted that those who commit similar crimes in different jurisdictions “should, to the extent possible, be treated similarly.” He also cautioned against unwarranted disparities in charging decisions, plea agreements and sentencing recommendations.

But while putting these words on paper to guide federal prosecutors is important, the Department of Justice ultimately is to be judged on whether it follows in deeds. Unfortunately, right now the Obama administration is missing a golden opportunity in Iowa to show it supports parity for all…

CC Coleman

September 13th, 2010
5:18 am

The DOJ’s budget has increased 600% in the last 8 years. Think something like this can not happen to you? Think again. As they run out of serious crimes to prosecute they will turn to less minor crimes to cast a wider net to use their budget on. I have been pursued for a year. I have spent $50K on lawyers to defend against a Interstate Harassment charge. I have been harassed at my job. My finances ruined. I have been threatened with jail time and the lifetime stigma of a felony. I am close to a nervous breakdown. This for a handful of postcards where I boasted that my life improved since I left a certain backwater State and got away from a woman that turned me down. I also stated that her current misfortune was caused by her choices in life. So, my life deserves to be ruined. Of course this would not be possible without an over reaching, over zealous, Assistant US Attorney with a God Complex and an unlimited budget. Think it can’t happen to you? You had best live a perfect, pure life. Dot all your “I”’s and cross all your “T”’s. If not, make one mistake and you are next on the menu to feed the PRISON INDUSTRIAL COMPLEX.