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January 28, 2010

Can and should religious considerations influence bail decisions?

The question in the title of this post is prompted by this interesting recent story over at a Wall Street Journal blog that is headlined "Rabbis Request Bail For Rubashkin." Here are the basics: 

Seven rabbis traveled to Washington, D.C., Tuesday seeking a remedy for what they say is overly harsh and unjust treatment of Sholom Rubashkin, the former Agriprocessors executive convicted of fraud at the kosher meat packing plant, which filed for bankruptcy protection in 2008.

The rabbis, who lead such Orthodox Jewish membership organizations as the National Committee for the Furtherance of Jewish Education and the Rabbinical Alliance of America, are demanding the release on bail of Rubashkin as he awaits sentencing on the 86 counts of financial fraud that a federal jury found him guilty of last fall.  The 8th U.S. Circuit Court of Appeals denied Rubashkin’s request for bail earlier this month, according to The Gazette of Cedar Rapids, Iowa, but Rubashkin recently appealed their decision.

Speaking at a press conference at the National Press Club Tuesday, Rabbi Chaim Dovid Zwiebel of Agudath Israel of America said the rabbis weren’t there to discuss Rubashkin’s actual and supposed wrongdoings. (In addition to the financial fraud, Rubashkin also faced charges that he violated federal immigration laws at the Iowa plant where 389 illegal immigrant workers were notoriously arrested in a federal raid in May 2008.  Prosecutors dropped the 72 charges after Rubashkin’s first trial.)

Rather, Zwiebel said they sought to address “a humanitarian issue” — that Rubashkin, himself an Orthodox Jew, has been unable to fully practice his faith in prison, and that prosecutors have unjustly pushed to keep him behind bars until he gets his prison sentence. “We believe local federal prosecutors have been extraordinarily inflexible and harsh” in their urging the courts to reject bail, Zwiebel said.

The rabbis denied allegations that Rubashkin would be a flight risk, arguing that his and his family’s travel documents have been surrendered and that Rubashkin fully complied with the terms of his bail before his trial began.  Zwiebel pointed out the “heart-rendering aspect” of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term.  (Federal prosecutors are recommending between 21 and 27 years behind bars.)

While these rabbis are basically suggesting that religious considerations should provide a basis for prosecutors (and presumably judges) to be willing to allow Rubashkin to be out on pre-sentencing bail, I cannot help but wonder if religious considerations might have been a factor in the initial decisions to be unwilling to allow Rubashkin to be out on pre-sentencing bail.  There are, I believe, a number of notable cases in which Jewish offenders have fled to Israel and resisted extradition in the past.

Is it uniquely wrong to deny bail partially on religious grounds, but justified to grant bail partially on these grounds?  Or should the issues work as one-way rachet in the other direction against bail?  And are any of these questions of constitutional dimension in light of the First Amendment's religion clauses?

UPDATE:  Eugene Volokh has this characteristically thoughtful discussion of these matters in this new post:

It seems to me that it’s improper, and unconstitutional, to give people a break when it comes to bail because of their religious practices.  I’m sure that being in jail does interfere with people’s religious practices.  There are minimum requirements of religious accommodation for inmates (for instance, some sort of kosher or halal food would generally have to be available to Jewish or Muslim inmates), but I’m sure that the inmates can’t have the same sort of religious life that they can have outside; and jail regulations aimed at legitimate security purposes may even end up forcing the inmates to violate some of their felt religious obligations.  The story isn’t clear on exactly what the burden on Rubashkin’s religious practice is, but I can easily believe that there is such a burden.

But it seems to me that the question of which defrauders — or robbers or drunk drivers or whoever else — stay in jail and which go free, even temporarily, can’t be decided in a way that gives the religiously observant a special break (or for that matter that gives atheists or agnostics a special break).  Whatever the permissible scope of special accommodations for religious observers (for a bit more on this, see here), I don’t think such accommodations can extend to granting bail based on a person’s felt religious obligations and the difficulty of continuing to comply with them in jail.

January 28, 2010 at 08:44 AM | Permalink


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The premise that he was denied bail on religious grounds could very well be faulty. Prosecutors frequently urge the district court to deny pre-sentencing bail in a wide variety of circumstances. Bernie Madoff was denied bail, even though his apartment had been turned into a virtual prison, and he had no realistic means to flee.

I have no idea whether the Bureau of Prisons has interfered with this fellow’s ability to practice his religion, but if he is a strict Orthodox Jew, I can well imagine that the adjustment is difficult. The rules they have to follow are so complex that it takes a lifetime of study to understand them. If he’s facing 21 to 27 years, he is going to have to make that adjustment sooner or later.

I do not think that religious affiliation or the size of one’s family ought to figure in the pre-sentencing bail decision. The law around bail decisions is, in my opinion, far less well developed than the law around sentencing. District judges have pretty wide latitude, with less likelihood of being reversed.

Posted by: Marc Shepherd | Jan 28, 2010 10:39:32 AM

I thought that Employment Division v. Smith resolved this question...facially neutral law not applied discriminatorily = no problem.

To consider religion opens up a can of worms that, to borrow a Scalia phrase, leads to terminal silliness. I remember a news story prior to Employment Division v. Smith where a prisoner's religious beliefs compelled him to have 30-minute masturbation sessions each day. (I'm not making this up.) Prison authorities had to give him his private room for his religious excursion at the risk of being liable for violating his free exercise rights.

If religion could or should influence bail for Orthodox Jews, why not for any other religion, mainstream or not? As far as the Free Exercise Clause is concerned, a mainstream religion and a fringe, cult, or absurdity are on equal footing. Why should judges open themselves up to claims of discrimination?

Posted by: Res ipsa | Jan 28, 2010 10:53:53 AM

I agree with Marc Shepherd and Res ipsa. Religion should have no bearing on bail decisions (or, in my view, on sentencing decisions either). Once the law starts to treat people differently on the basis of religion, or lack thereof, we are on a slippery, and awful, slope.

This is just another defendant manufacturing a reason for more favorable treatment than the average man would get. The rabbis should be ashamed for allowing themselves to be roped into such a thing.

Posted by: Bill Otis | Jan 28, 2010 11:46:07 AM

The rabbis should be ashamed for allowing themselves to be roped into such a thing.

No more so than those who lobbied for Scooter Libby to be pardoned, for no other good reason except that he had been a loyal Republican foot-soldier. People routinely campaign for mercy for those whom they personally identify with. If Libby had been a Democrat, an entirely different set of people would have been lobbying on his behalf. Strange how that works.

Posted by: Marc Shepherd | Jan 28, 2010 11:57:24 AM

"Zwiebel pointed out the “heart-rendering aspect” of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term. (Federal prosecutors are recommending between 21 and 27 years behind bars.)"

I was surprised Doug that you didn't highlight this aspect of the case given the recent conversation in the thread below. It makes me wonder if you consider family concerns less important for Jews. Or perhaps just Orthodox ones?

Posted by: Daniel | Jan 28, 2010 12:20:30 PM

Daniel, the earlier thread concerned family as a SENTENCING consideration, not as a BAIL consideration, so I am not sure why you think these comment threads are inherently connected. In any event, I would be eager to hear your views and others as to whether such family concerns should be more (or less) pertinent at the bail stage than at the sentencing stage.

In either setting, though, it is unclear why you seem eager to interpret my failure to highlight the family issue in this context somehow suggests I am uniquely biased against Jewish (or Orthodox Jewish) families. I certainly lots of strong (and varied) feelings about dozens of my OWN Jewish family members (both those more and less devout), but I do not think my of my personal family feelings hinge much on which of my relatives have particular religious beliefs or how much they go to temple or whether they keep kosher.

Candidly, Daniel, I would like to know if you really somehow "discover" some kind of hidden anti-semetic bias in my posting here, or do your questions just reflect a general eagerness to go on the attack everytime Jewishness is discussed in a public forum?

Posted by: Doug B. | Jan 28, 2010 1:37:02 PM

A little background as someone who has been following the Rubashkin case.

The Magistrate Judge detained Rubashkin pending trial based on Government allegations that he had caused evidence to be destroyed and that he had made preparations for flight. An appeal was taken to the District Judge, who released Rubashkin pending trial on electronic monitoring and strict conditions.

At trial, Rubashkin was convicted of 80+ counts of bank fraud and other financial crimes. The Government believes his Guidelines range will be in the 21 to 27 year range based on the millions involved and other factors. After conviction, the District Judge revisited detention and determined that Rubashkin should be detained pending trial. The standards for detention pre-trial (18 U.S.C. Sec. 3142) and pre-sentencing (18 U.S.C. 3143) are different and the fact of conviction was enough to change the balance.

Rubashkin is presently being held at a county jail in the custody of the US Marshal pending sentencing. The jail is ill-equipped to handle the strict dietary and religious observances required by Rubashkin's religion. However, I see that as less of a question of detention vs. release, the resolution of which should be based on considerations of risk of flight and danger to the community (and in the case of pre-sentencing detention, the likelihood of a motion for acquittal or new trial being granted), and more of a question of whether the Marshal and the jail are able to accomodate Rubashkin's religious beliefs as required by the Constitution and the interpretive caselaw.

Posted by: Iowa Lawyer | Jan 28, 2010 1:56:47 PM

This is in no way unusual. Federal prisoners are frequently held in county jails pre sentencing. While there, they are not afforded the consideration they may receive when they enter the Federal system. This may be a subject for discussion, but I don't see how a case could be made for unequal or discriminatory treatment in this case. It is standard operating procedure. Conditions in these county settings have no bench mark - they can be much harsher or much more lenient than if the prisoner were held in a Federal Facility.

I don't have statistics to back up this opinion, but I believe that post trial - presentencing bail after a conviction with these guide lines would be highly unlikely.

Posted by: beth | Jan 28, 2010 2:46:04 PM

But, Daniel and FB, Congress in 18 USC 3553(a) REQUIRES sentencing judges to consider "the history and characteristics of the defendant" and also the need "to protect the public from further crimes of the defendant" and the need to "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." I think, in most cases, "family ties" are at least potentially pertinent to ALL these statutorily required considerations (and perhaps some others set out by Congress in the SRA).

I suppose we could dicker over whether CURRENT family ties (such as having a spouse and kids) are always inherently part of the "HISTORY and characteristics" of a defendant, but I generally see an offender's personal family situation as a big part of his "history" as well as his "characteristics." Family ties also often seem relevant to whether and how an offender might need medical/psychological care/treatment as well as how best he might be incapacitated to protect the public.

Like many others (including the original US Sentencing Commission), you might believe that it is very bad policy to generally encourage or even allow any kind of family considerations in sentencing (or bail) decision-making. But then your gripe is really with how Congress wrote 3553(a), not with those judges who conclude --- reasonably, in at least some cases --- that family matters are important in their efforts to carry out the statutory mandates set forth by Congress in that statute.

Of course, a much harder question --- which is the one I sought to make the focus of the main post --- is whether judges are statutorily required (or even constitutionally allowed) to consider RELIGIOUS factors in bail (or sentencing) decision-making.

Of course, as Daniel has noted, the case dicussed above (and lots of other cases) involve religious and family factors intersecting, but I think they are and should be considered distinctly. Indeed, it is not entirely clear that family-focused legal rules trigger ANY First Amendment or equal protection concerns, whereas religion-focused legal rules obviously implicate both the First Amendment and equal protection consideration.

Posted by: Doug B. | Jan 28, 2010 3:19:56 PM

Marc Shepherd --

"No more so than those who lobbied for Scooter Libby to be pardoned, for no other good reason except that he had been a loyal Republican foot-soldier."

No question about that. Which is one reason I did not enlist, or even refer to, Libby's politics in recommending that his sentence be partially commuted. (I never recommended a pardon and in fact explicitly opposed it).

Posted by: Bill Otis | Jan 28, 2010 3:30:45 PM

Free speech rights are also significantly infringed by incarceration; an inmate is no longer free to hold forth from a soapbox on the street corner, which is the prototypical exercise of First Amendment rights.

Too bad. That is what incarceration by its nature entails.

Law that makes distinctions based on race or religion is at the minimum constitutionally suspect, and bad policy whatever its constitutional status may be. Such distinctions are inherently divisive, as this thread demonstrates. And they do not advance any compelling state interest.

I simply have no patience with those who are, or (as I suspect in this instance) merely claim to be, so involved with their religion that everyone else has to be put out by it. What I have in mind specifically are the recent cases of a Jewish teenager and, a few months before that, some Islamic imams, who found it "necessary" to "pray" at the top of their lungs on a commercial airliner, scaring the dickens out of their fellow passengers.

People -- Christian, Jewish and Islamic -- have the right to pray. But intentionally drawing attention to one's self in a public place to advance the supposed "necessity" of a minute-by-minute religious observance seems to me to more an expression of rude self-involvement than of authentic piety.

I think someone once said, "Pray in a closet." Right on to that.

Posted by: Bill Otis | Jan 28, 2010 3:53:57 PM

Iowa Lawyer

Thanks for the clarification. Was the fact that the Linn County Jail was badly damaged by the flood a factor. They had extra facilities and services needed by federal prisoners prior to the flood that other nearby county jails do not have.

Posted by: John Neff | Jan 28, 2010 4:33:06 PM


The problem with considering them distinct is that religion itself does not do that. I freely admit that I don't know all the details about how Orthodox Jews currently deal with "go forth and multiply" but certainly there is a religious component underlying many people's decision to create a family and how they relate to their family once created.

Given how deeply these two issues can be interwoven at what point in time does religious discrimination become family discrimination or, more importantly, at what point can one argue that discrimination against family is a proxy for religious discrimination. For that matter, when does a plea for "family considerations" just become an excuse for some other objective (in this case religious freedom).

Posted by: Daniel | Jan 28, 2010 6:39:34 PM

This man's case is not helped by that of Sholam Weiss, himself an Orthodox Jewish Rabbi from Brooklyn, New York, who fled to Brazil and then to Austria (where he was captured and extradited back to the United States)in 2001, two days bbefore his nine month long trial ended in Orlando, Florida. Weiss was convicted and sentenced "in absentia" is serving the longest white collar sentence in American history, 845 years (recently cut on a Petition for Habeas Corpus to 835 years). His direct appeal was dismissed by the 11th Circuit pursuant to the Fugitive Disenfrancisement Doctrine, and his 1 year to file a 2255 Motion also expired while he was a fugitive. His convictions and sentence are now virtually unreviewable. Weiss appeal of his Habeas Corpus Petition (2241) is presently pending before the 11th Circuit in Atlanta.

Posted by: Jim Gormley | Jan 28, 2010 7:10:28 PM

For the posters above citing to Employment Division v. Smith, you should realize that Congress has, essentially, legislatively overruled that decision. Particularly in the area of prisoner's religious "rights" the Religious Freedom Restoration Act (RFRA) applies to federal prisons, and the Religious Land Use of Institutionalized Persons Act (RLUIPA) applies to state prisons, providing PRE-Employment Division rights to inmates.

Posted by: anon | Jan 28, 2010 11:14:54 PM

I live in Iowa and I have been aware of the fact that Rubashkin has been thumbing-his-nose at the law for many years. I wondered how he was able to get away with that and why he picked Postville Iowa. I think now that he picked Postville because he thought he could outgun the local criminal justice system and Iowa because he thought he could outgun the State Attorney General.

Posted by: John Neff | Jan 29, 2010 4:36:31 PM

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