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May 18, 2012

What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?

The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:

Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville.  He is no Boy Scout.  He committed financial fraud, was convicted at trial and deserves punishment.  Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.

But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.  That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....

A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines.  Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.

In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements.  She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision.  She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.

On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines.  In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.

To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case.  It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.

This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received.  The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.

As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues.  In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert.  One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."

All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant.  But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable."  Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias.  When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too.  The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade.  But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well.  Judges shouldn’t be able to make up their own rules for policing themselves.

As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer.  To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case.  But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.

May 18, 2012 at 08:54 AM | Permalink


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This sentence is excessive, but it's not the worst I have heard of. What explains the involvement of so many former AGs, SGs, prosecutors, and members of Congress in a criminal sentencing case?

Posted by: Thinkaboutit | May 18, 2012 10:41:41 AM

In French there is a phrase, which is much snapper sounding in French, that translates roughly to "a single judge is is an unjust judge." Civil law countries never allow single judges to have the immense discretion of an American sentencing judge in a criminal felony case - decisions of that heft are always handled by panels of three and sometimes more judges. The more arbitrary the grounds for decision, the more sense it makes for that decision to be made collectively and not by a single person. This is all the more true when review of that decision is basically upon an abuse of discretion grounds.

No matter what formal rules you put on the books, any time discretion is granted to decision makers, there are going to be abuses of that discretion. But, that discretion is going to be abused much left often in the hands of a group of people than in the hands of a single individual. Collective decision making also shields the judicial institution from allegations of bias, because it is much harder to show that all three judges on a panel have the same bias than it is to conjure up some plausible grounds for bias involving a single judge. We generally have juries set emotional distress and punitive damages upon which there is great discretion in civil trials. In criminal trials, the case for collective decision making on sentences, either by a jury or a panel of judges probably makes more sense than having the jury make the call on guilt or innocence upon which the law if often far more specific and the facts presented at trial provide a very clear basis or a ruling one way or the other.

Notably, one of quasi-criminal context where this is done, courts-martial, while historically often faulted for its high conviction rates, frequently mets out quite lenient sentences for the offenses of conviction at the sentencing phase.

Arguing for a constitutional right to jury sentencing is a horse far too far out of the barn to be returned to it, but nothing prevents Congress for having panels of federal judges and/or magistrates handle sentencing decisions (at least in cases where a sentence is longer than a certain number of years (perhaps more than five years), exceeds the request of either the prosecutor or the defendant). A pretty large volume of the entire U.S. Court of Appeals docket involves sentencing decisions where guilt is not disputed, and surely panel sentencing in cases with potentially long sentences would reduce that and might even be money saving for the federal judicial branch as a whole despite the extra effort invested at the trial court level, in addition to furthering justice by balancing out extreme stances.

Posted by: ohwilleke | May 18, 2012 3:42:47 PM



The classics never grow old.

Posted by: Daniel | May 18, 2012 5:34:49 PM

Doug, in my opinion, you have spotlighted one of the biggest problems in criminal sentencing in NC, judges who do not abide by the ground rules established by the legislature when it enacted our extraordinarily complicated "structured sentencing" law. We have a complex grid consisting of a vertical axis for severity of crime and a horizontal axis for length of prior record and then within the intersection of those two axes, three subcategories of potential punishments. Theoretically, the determination of what the appropriate range of punishment should be is determined by a series of findings of mitigating factors by the judge and aggravating factors decided by a jury.

In reality, the vast majority of sentences are imposed within the middle range, with judges making no findings about whether a mitigating factor exists. The judges just simply ignore any mitigating evidence presented by the def. The most egregious example I have experienced is the case I had in which there was seventy five dollars in restitution. The legislature has decided payment of restitution can be considered a mitigating factor.

My client paid seventy five dollars into the clerk's office prior to sentencing. I asked for a mitigating factor that the defendant paid restitution. The judge did not find the mitigator and sentenced in the middle range. Then, when I asked for work release, the judge allowed it and said that there was no condition of work release for the defendant to pay restitution, since he had already paid it!

In my view, as long as our appellate courts allow sentencing judges to disregard uncontroverted mitigating factors established by the legislature, NC has a system of "structureless" sentencing.

Good luck, I'll follow this cert petition carefully.


Posted by: bruce cunningham | May 19, 2012 4:53:51 AM

Just Another Guy in Klumbis , Ahia

WOW ‼¹²³

Only 27 years ? ‼

Why just not “ Nacht und Nebel ” him and be done with it ?

Was she sitting at the bench or at the prosecution's table at sentencing ?

As always , Nemo Me Impune Lacessit
Docile Jim Brady — Columbus OH 43209

L♥ve•Like•Neutral•Dislike•Hate Email to:
[email protected]

Posted by:  They call me —►Mister Blank◄— | May 19, 2012 10:47:31 AM

There is no point in predicting whether certiorari will. It either will or will not. You have done your job, as have Rubashkin's other attorneys, making the best case that you can.

The sentence was within the applicable Guidelines range, so the hurdle is high to argue that the sentence is unreasonable. The judge's procedure was typical, so a procedural argument is tough.

The recusal issue is probably his best argument, except for a timeliness problem with Rubashkin's objection.

It looks like a case well -fought, though, so maybe star power alone will get cert. granted.

Posted by: Mark Pickrell | May 20, 2012 8:16:49 PM

From http://www.supremecourt.gov/faq.aspx#faqgi9 (Supreme Court Website)
How many cases are appealed to the Court each year and how many cases does the Court hear?
The Court receives approximately 10,000 petitions for a writ of certiorari each year. The Court grants and hears oral argument in about 75-80 cases.
Those are pretty long odds, no matter how compelling the question.

Posted by: folly | May 21, 2012 7:00:46 AM

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