Give Him a Fair Punishment

By Rabbi Yossi Jacobson – Lubavitch of Des Moines, IA

As Federal District Court Judge Linda Reade prepares to pass sentence on former Agriprocessors executive Sholom Mordecai Rubashkin on May 27 for his conviction on federal financial fraud charges, I have been receiving a steady stream of phone calls and e-mails asking how, in the United States of America – which Jews call the “malchus shel chesed” (kingdom of mercy) – Rubashkin could have been subjected to the aggressive prosecution that he has received.

Why do so many Jewish Americans from all over the country believe prosecutors used an unfair and heavy hand to destroy Rubashkin and his company rather than to do justice? Most do understand he was convicted of bank fraud and making late payments to some of its vendors. They are alarmed and upset that the prosecutors’ plea for life in prison, later reduced to 25 years, does not seem to fit these crimes.

Those who are disturbed invariably raise one or more of the following facts:

– The dramatic raid on Agriprocessors’ facilities came just days after the company sent a letter to federal immigration officials offering full cooperation.

– Before his federal trial, prosecutors sought to hold Rubashkin in jail without bail. They argued any Jew in America was a potential flight risk because he might flee to Israel and become a citizen of that nation under its law of return.

– Would-be purchasers of the Postville facility testified prosecutors and the FBI discouraged them from hiring any member of Rubashkin’s extended family, despite their knowledge of the company and the industry. At that time, no purchaser was found and the plant was liquidated, devastating Postville’s economy. It has since emerged under new ownership as Agri Star.

– Rubashkin was charged with violating the century-old Packers and Stockers Act because he paid some suppliers late during the spring of 2008. This was the first prosecution under this statute in its entire history.

– Rubashkin was convicted in a “shock and awe” prosecution for bank fraud. All charges (except those for late payment) arose out of certifications that Agriprocessors delivered to its bank when it drew down funds on its bank line. Each certification resulted in multiple counts; for example, Rubashkin was charged separately for sending the same certification by fax and by courier.

– At least two modern Orthodox rabbis, in Chicago and New York, who have been severely critical of Agriprocessors in the past, have issued public statements decrying the harshness of the sentence proposed by the prosecutors and questioning its justification.

– Numerous former U.S. attorneys general, including Edwin Meese, Ramsey Clark and Janet Reno, complained of the “potential absurdity” of the life sentence being sought, and stated that they “cannot fathom” how such a sentence could be handed down under “truly sound and sensible sentencing rules.”

Jewish law is that “dina d’malchusa dina”: the law of the state is the law, and Jews have as much responsibility as every other citizen to comply with them. Yet Jewish doctrine also requires that the law must be just. The Torah commands in Deuteronomy, “Tzedek tzedek tirdof”: justice, justice shall you pursue. This is Noahide law, which Jews believe bind every society on Earth.

Laws include not only crimes, but also punishments.

Jews believe that G-d is a G-d of mercy as well as justice. As Sholom Rubashkin faces his sentencing, I hope Judge Reade will impose a sentence that is based on the crimes for which he was convicted in a court of law, and not those charges under which he was convicted in the court of public opinion.

I pray that the sentence imposed will appear fair, and will reassure interested observers that this trial has been conducted with justice and mercy, consistent with the American values that we all hold dear.