Judge to Impose 27 Years on Agriprocessor's Sholom Rubashkin

Via Sentencing Law and Policy, a federal judge in Iowa has issued a 52 page memorandum (available here) deciding that the appropriate sentence for Agriprocessor's Sholom Rubashkin is 27 years. Prosecutors asked for 25 years (previously they said they wanted life), the defense asked for 6 years. The local news report is here.

Rubashkin, age 51, had no prior convictions. The judge found a lot of enhancements, and determined his guideline range to be 324 to 405 months. She rejected all requests for a downward departure or variance. The defense grounds for departure were:

Defendant asks the court to depart downward due to Defendant’s relationship with his autistic minor son, his charitable and civic deeds and his mental health.


The court denied the Government request for upward departures, but said it would consider the Government's reasons for the request in its analysis of the 3553(a) factors:

Although an upward departure would be permitted under USSG §5K2.0(a)(3) and §5K2.21, the court declines to depart upward because a sentence within the computed Guidelines range is sufficient to satisfy the goals of sentencing. However, the court will consider the facts underlying the potential upward departures in conjunction with its analysis of the factors enumerated in 18 U.S.C. § 3553(a).

Additionally, in the event the court is required to re-sentence Defendant, it reserves the right to revisit these upward departure provisions to determine whether their application would be appropriate.

She also rejected his requests for a downward variance:

Defendant asks the court to vary downward because: (1) “the advisory [G]uidelines as calculated [. . .] call for a fundamentally unreasonable sentence”; (2) Defendant did not commit the offense conduct for personal gain or out of a sense of greed, but rather, “in order to continue what he viewed as the critical Lubavitch mission of providing Kosher food to the Jewish community”; (3) Defendant’s “charitable and civic activities are truly extraordinary”; (4) Defendant has a special relationship with his developmentally-disabled minor son; and (5) Defendant suffers from depression “that affected him during the period of the offense conduct, impaired his judgment and attention, and combined with his upbringing and religion to make it almost impossible for him to oppose his father and leave the business.” Motion for Downward Variance at 2, 8, 10, & 19 (emphasis in original).

As the reasons for rejecting the requests:

No matter Defendant’s motive, he defrauded the victim banks out of millions of dollars. He unlawfully placed his family business’s interest above the victim banks’ interest. His family business and he personally benefitted at the expense of all the victim banks’ innocent shareholders. The court finds that this is not a basis to vary downward in this case.

On his charitable works:

Additionally, it is entirely possible that a number of Defendant’s charitable deeds were funded with proceeds from his crimes. It is far easier to be generous with someone else’s money instead of one’s own.

On the autistic son:

However, such considerations of sympathy and compassion are present in all criminal cases that come before this court. In the vast majority of cases, defendants leave behind loving family members, all of whom are adversely impacted by being separated from a spouse, parent or child. Defendant is not unique in that respect. Fortunately, and unlike many cases that come before this court, Defendant’s son has a loving and competent mother as well as an extremely tight-knit, supportive extended family, all of whom are obviously devoted to him and accustomed to working with him. Accordingly, the court declines to vary downward on this basis.

What about the sentence being unreasonable because it must be “sufficient, but not greater than necessary” to comply with the purposes of § 3553(a)?

Were the court to vary, the court would vary upward to take into account additional criminal conduct involving harboring of illegal aliens, which was charged in over seventy counts of the Seventh Superseding Indictment and were later dismissed.

This judge isn't taking any chances:

When the sentencing reconvenes, the court will impose a sentence of 324 months of imprisonment. The court notes that, even if it inadvertently erred in computing the advisory Guidelines sentence, it would still impose a sentence of 324 months of imprisonment after considering the factors in § 3553(a).

She then orders $18 million in restitution.

In my view, as I wrote in April, this is an excessive sentence. And I'm no fan of Agriprocessor.

The sentence will be imposed tomorrow after which both sides will give hold press conferences. Then the appeal begins.

Our past coverage of the Postville, IA immigration raids and Agriprocessor is assembled here.

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  • Display: Sort:
    What the federal sentencing law requires (5.00 / 1) (#4)
    by Peter G on Mon Jun 21, 2010 at 10:46:22 PM EST
    is a sentence which is "sufficient, but not greater than necessary" to accomplish a balance of the various purposes of criminal punishment -- such as retribution, denunciation, deterrence, incapacitation, and rehabilitation.  What is accomplished by this sentence that could not be achieved as well by a sentence one third as long?  If there is no good answer to that question, the sentence is unlawful ... not that the court of appeals will say so.

    Yes (none / 0) (#5)
    by squeaky on Mon Jun 21, 2010 at 11:26:55 PM EST
    I am glad that you describe it as unlawful, as it should be.

    His sentence is vindictive, way out of proportion, imo


    The message I hear at TL is (none / 0) (#9)
    by observed on Tue Jun 22, 2010 at 07:45:53 AM EST
    that heavy sentences for white collar crime are NEVER appropriate. I strongly disagree.

    If I recall correctly (none / 0) (#14)
    by BackFromOhio on Tue Jun 22, 2010 at 07:31:09 PM EST
    there has been no such uniform message here. Response to Madoff sentencing was divided, with many (if not most?) coming down on side of he deserved what he got.

    My comment rather clearly suggested (none / 0) (#16)
    by Peter G on Wed Jun 23, 2010 at 08:51:14 AM EST
    that even accepting the judge's balance of factors (which I would balance differently, if it were up to me), a sentence "one third as long" (i.e., nine years' imprisonment) would be "sufficient."  How could you possibly describe that as opposition to a "heavy sentence"?  If you were taken away (possibly hundreds of miles away) from your family and work, and kept in a locked building surrounded by strangers whose only common characteristic was a federal criminal conviction, where every detail of your life was dictated by others according to arbitrary rules,  where every visit with family or friends had to be preceded and followed by a strip search -- for a period of nine years -- would you consider that anything but a "heavy" punishment?  Where were you nine years ago? Or 27? Where will you be nine years from now?  (Or 27 years?).  (Just trying to get a sense of how long those periods of time are.)  Nothing less than 27 years' incarceration is "sufficient"?  Now figure in the cost to society of each year of that sentence, multiplied by about 200,000 federal prisoners (and more than a million in various jails or prisons nationally).  Neither my criminological nor my moral compass can understand the argument for this sentence.

    Hear Hear (none / 0) (#17)
    by squeaky on Wed Jun 23, 2010 at 08:54:54 AM EST
    The mindset of most americans on incarceration is really warped and quite abstract. Not sure exactly why, but it is clear that we are prison nation, iow have the highest per capita incarceration rate in the world, for a reason.

    Why is nine years heavy but not 1 year? (none / 0) (#18)
    by observed on Wed Jun 23, 2010 at 01:46:51 PM EST
    My comment was more a general observation than specific to this case---i.e., it seems that Jeralyn and many like-minded people think that sentences for white collar crimes should NEVER be as high as those for the worst violent crimes.
    I find this position arbitrary. White collar crime can cause far more harm to more people than violent offense.
    For example, suppose someone attempts an armed robbery of a bank. He fails, and is apprehended.
    Suppose no one is injured and no money is taken.
    How long will this person go to prison for?
    I don't know the criminal code, but I think a person like that could go to prison for 15 years. If it were his 3rd felony, he could go to prison for life.

    Now take a white collar criminal who defrauds 1,000 elderly people of their entire life savings. If I were an actuary, I could tell you how many years of life he has taken away from these people, how many early deaths caused. I imagine he would be taking several hundred years off their collective life span, if not more.
    His crime is totally heartless, cruel, and causes enormous pain---far worse than that of most bank robbers.
    His punishment should be severe. In my opinion, this criminal is a good candidate for life imprisonment. At any rate, I would laugh at a sentence of 7 years.

    I think there are two reasons people do not see the seriousness of white collar crimes. First of all, the damage is statistical in nature---more abstract.  Our innate sense of morality  is geared towards immediate actions, so white collar crime does not elicit as visceral a reactiton. Any particular victim may weather the loss without great pain, but since a certain percentage are certain to suffer, the criminal is responsible for that excess suffering.
    Second, and perhaps more importantly, there is the matter of status.
    A bank has the highest status in society; hence, any crime against a bank is taken very seriously.
    On the other hand, a group of thousands of elderly retirees has little clout and almost unnoticeable status.

    The bottom line is that I think sentences should be proportional to the severity of crimes; surely this is a basic principle of justice.
    In fact, I think white collar crimes leading to deaths are the ONLY ones where the death penalty makes sense, for reasons of deterrence. I'm somewhat indifferent on the death penalty, viewing it as a waste of money with dubious benefits---not to mention the problem of executing innocents; however, some of the executions in China over mellamine, etc., make sense to me. Business managers who are responsible for life and death decisions of quality are far more likely to get the message of the death penalty than low-lifes with poor impulse control.


    Many of the same people... (5.00 / 1) (#19)
    by kdog on Wed Jun 23, 2010 at 01:59:30 PM EST
    think blue-collar crime sentences are even more extreme and draconian than the draconian sentences recently handed down in high profile white-collar cases.

    Maybe it's just a case of more discussion of white collar crime lately skewing your perspective o.b....I certainly think he who steals by the pen should not be treated less harshly than he who steals by the blade...thougb I think we should generally treat people less harshly across the board, even if it means getting bitten in the arse by a repeat offender every so often...the one who turns his/her life around is worth 100 reoffenders, imo.


    I"m not interested in issues of (none / 0) (#21)
    by observed on Wed Jun 23, 2010 at 04:59:29 PM EST
    rehabilitation so much as proportionality.
    I do think punishment and retribution are part of the purposes of imprisonment; hence, sentences should have some proportionality with the crimes, especially in crimes of the same type.
    In principle, I see no reason why a white collar crime cannot merit life imprisonment, or even the death penalty, if we have the DP at all.
    That's why cocaine sentencing is so heinous.
    And you know that even though we disagree on drug laws, I would let millions of "offenders" out, if it were up to me.

    Life in a cage over money? (none / 0) (#22)
    by kdog on Wed Jun 23, 2010 at 05:30:29 PM EST
    I don't care how much you stole, or from how many, life in a cage steals a helluva lot more of something much more precious, even from a sc*mbag.  That's not a punishment fitting the crime(s).

    That kind of extreme punishment should be reserved for those who would literally give us no choice, the hopelessly violent reoffenders.


    you don't get it: if a person is robbed (none / 0) (#23)
    by observed on Wed Jun 23, 2010 at 05:43:01 PM EST
    of enough money, it IS a violence on them.
    Old people are often the targets of theft and fraud. If they lose all their money and savings, it can be absolutely as devastating as a violent crime.
    By the way, when I speak of white collar crime, I'm not referring only to theft.
    For instance, a company which chooses to disregard federal safety standards on cribs WILL  kill a certain percentage of the infants who use their product. This has been an ongoing problem for years. For the life of me, I can't understand why  companies deliberately make cribs which can kill. It can't be that hard to meet the standards!
    That's just one example of thousands.
    White collar negligence that kills needs to be treated as a criminal matter. That will get companies to shape up.

    Sorry pal, you don't get it either... (none / 0) (#24)
    by kdog on Thu Jun 24, 2010 at 08:03:28 AM EST
    I'm not saying theft or willful negligence can't be violent, or even deadly...just saying a prison sentence is violent too...damn violent. "the individual did it first!" is small consolation, two wrongs don't make a right....the system and the collective must be better than a sc*mbag individual or else why bother, lets just get on with the anarchy.

    With all due respect, (5.00 / 1) (#20)
    by sarcastic unnamed one on Wed Jun 23, 2010 at 02:11:59 PM EST
    I think J has never met a sentance - regardless of the crime - that she didn't think was too long...

    Rubashkin, age 51, had no prior convictions. (none / 0) (#1)
    by diogenes on Mon Jun 21, 2010 at 08:34:25 PM EST
    I.e.  he had never been arrested and convicted before despite committing years of crimes.  He's not a Hebrew School teacher who made "one mistake".

    Wrong argument of proportionality (none / 0) (#3)
    by observed on Mon Jun 21, 2010 at 09:09:21 PM EST
    I don't know if the sentence is right, but comparing different kinds of crimes doesn't make sense to me. Instead, the sentence should be roughly proportional, among sentences for crimes of this type.
    Someone who embezzles $50,000 may go to prison for several years, if I'm not mistaken.
    Shouldn't his sentence be far more severe?
    If not, why not?

    Too much of what (none / 0) (#6)
    by JamesTX on Mon Jun 21, 2010 at 11:33:01 PM EST
    passes as justice nowadays is vengeance in disguise. Sometimes it isn't even directed to the right person, but to some group which the person is perceived to represent.

    Well put (none / 0) (#13)
    by BackFromOhio on Tue Jun 22, 2010 at 07:28:35 PM EST
    I do not see it as excessive. (none / 0) (#7)
    by msaroff on Tue Jun 22, 2010 at 01:55:45 AM EST
    At the end of the day, I couldn't give a rat's ass about the embezzlement, but he knowingly employed children on a meatpacking line.

    As I have said before, this is only a half step below employing children as child soldiers.

    He was acquitted of that (none / 0) (#8)
    by Jeralyn on Tue Jun 22, 2010 at 02:03:46 AM EST
    in state court, at a trial that followed his federal trial.

    But did the court fairly acquit him? (none / 0) (#12)
    by sarcastic unnamed one on Tue Jun 22, 2010 at 12:20:39 PM EST
    Damn... (none / 0) (#10)
    by kdog on Tue Jun 22, 2010 at 08:43:35 AM EST
    we sure give out those caged years like candy don't we...one hasta wonder who the real criminals are.

    Paradigms.. (none / 0) (#11)
    by jondee on Tue Jun 22, 2010 at 10:31:09 AM EST
    with Behaviorism being still the predominant model for dealing with criminals: give the experimental subject a whack with the stick as a form of aversion therapy for them and society. This presupposes a view of what human beings are that is in essence, not all that different from the way people in the meat packing industry view their "stock". Act up and we'll make you into sausages..

    And the pols, cops and DAs who keep the factory line running smoothly and unambiguously get to be the heroes on Criminal Minds and Law and Order..



    geez ... (none / 0) (#15)
    by nyrias on Tue Jun 22, 2010 at 08:13:24 PM EST
    you think locking up, for a long time, a criminal like Mr Rubashkin is a bad thing? He defrauded banks for $26M and use his companies' money for his own gains.

    What do you want to do? Give him 6 month probation?

    In this case, the real criminal is OBVIOUSLY Mr Rubashkin. For what he has done, i am not unhappy that he is locked up for 27 years.

    He threw away his own life and the only thing i am sorry about is that he is not caught EARLIER.