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January 12, 2011

An appellate amicus brief in the Rubashkin case on sentencing issues

As regular readers may recall, and as detailed in this prior post, last summer a federal district court in Iowa decided to give Sholom Rubashkin a 27-year federal prison sentence for his leadership in a financial fraud involving his kosher meat-packing plant.  Having spent some time looking at various facets of this high-profile case, I was troubled by the severity of this sentence and the district court's decision-making and I decided to help put together an amicus brief on sentencing issues as the case was appealed to the Eighth Circuit.

I am pleased to report that the Washington Legal Foundation (WLF) help me put together and file this amicus brief, as is detailed in this press release and this blog post from the fine folks at WLF. The full Rubashkin amicus brief and be downloaded at this link, and the WLF blog posting by Stephen Richer does an especially nice job spotlighting why I wanted to get involved and also what the brief argues:

Consider a man who has ten kids, is an active participant in his town, runs a business that provides a needed service for his religious community, and has never before been accused of a crime. Imagine that this man is convicted of financial fraud that is tenuously linked to large societal monetary loss. The alleged fraud served to keep the community business afloat, not to fund personal extravagances.

What type of punishment would this man deserve? A prison sentence? If so, how long? One year? Three years? But what about 27 years?...

That’s the penalty recently imposed by a judge in the Northern District of Iowa on Sholom Rubashkin, owner of Agriprocessors, a Kosher meat processing plant in Potsville, Iowa....

Washington Legal Foundation, representing 18 noted law school deans and professors, former federal judges, and former prosecutors, added its voice to the opposition on Monday, January 10th by filing a brief asking the U.S. Court of Appeals for the Eighth Circuit to vacate the sentence and remand it to another federal trial judge for resentencing....

WLF’s brief makes three arguments: First, that the district court’s calculation of the guideline range was contrary to the Sentencing Guidelines’ instruction and related jurisprudence; second, that the district court largely ignored the Supreme Court’s repeated admonition that a district court must not presume reasonable a sentence within the calculated Guidelines range; and third, that the functional life sentence given to Mr. Rubashkin (who is currently 51 years old) is incompatible with his personally history and is substantively much greater than necessary to comply with the purposes of sentencing set forth by Congress.

Related posts on the Rubashkin case:

January 12, 2011 at 11:23 AM | Permalink


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How about execution instead of prison being the appropriate sentence?

I see his children and the rest as being fluff rather than a reason for leniency. And perhaps if fraud was required to keep it going then the service wasn't quite so necessary. Hopefully the 8th shrugs off this argument like the fetid garbage that it is.

Posted by: Soronel Haetir | Jan 12, 2011 11:49:36 AM


In the interest of full disclosure, I think you should report whether you have been paid for this representation.


Posted by: Mark Pickrell | Jan 12, 2011 1:15:16 PM

At the district court level, Mark, I was compensated for providing some consulting advice in this matter, but I worked on the drafting and filing of this appeals brief pro bono. And in our motion seeking to file this amicus brief, these facts are disclosed. Gosh knows, I sure wish I could always get compensated for complaining about sentencing decisions I dislike.

Posted by: Doug B. | Jan 12, 2011 2:26:25 PM

Thanks, Professor. Always helpful.

And thanks, as usual, for all the work on this site.


Posted by: Mark Pickrell | Jan 12, 2011 4:25:35 PM

I would like to hear what happened to the findings of the discovery of the judge and prosecutor, their ex parte conferencing, and miscellaneous agreements about the management of this case, their prior personal relationships. I am hoping an appellate court forces them to pay all legal costs of the first trial and orders a retrial. This was a good example of the point that one should always counterattack the lawyer oppressor, the federal thug and the totally biased lawyers sitting on the bench. They are little more than organized criminal cult enterprise gang, not protecting the public, attacking productive entities, and generating government do nothing sinecures, little more productive than no show union mob jobs. Such counter discovery is a standard of due care which the defense bar refuses to acknowledge. Why? They owe their job not to the client, but to the prosecutor. GEt fired by a client, replace this commodity in minutes, at a certain level of skill. Deter the federal thug, and entire firms have to have mass layoffs.

Posted by: Supremacy Claus | Jan 12, 2011 11:27:04 PM

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