Eric Holder Must Investigate Sentencing Disparities

A few months ago, Attorney General Eric Holder took an important step in ensuring that all men are treated equally under our legal system. In a memorandum to federal prosecutors, he noted that those who commit similar crimes in different jurisdictions “should, to the extent possible, be treated similarly.” He also cautioned against unwarranted disparities in charging decisions, plea agreements and sentencing recommendations.

But while putting these words on paper to guide federal prosecutors is important, the Department of Justice ultimately is to be judged on whether it follows in deeds. Unfortunately, right now the Obama administration is missing a golden opportunity in Iowa to show it supports parity for all.

Sholom Rubashkin was the manager of a highly successful kosher meatpacking plant in Postville, Iowa. He recently was sentenced to 27 years in prison for banking offenses. It was a startlingly long sentence for a first-time, non-violent offender; especially for a man who never intended any loss to the bank from which he borrowed funds to run the meat business. By contrast, Mark Turkcan, the president of a St. Louis bank who knowingly defrauded his company out of nearly $35 million, was sentenced last year to just 366 days in jail.

The details of how prosecutors have handled Rubashkin’s case have raised many eyebrows; and dozens of former Justice Department officials have spoken out on Rubashkin’s behalf. But Holder and his team thus far have refused to investigate the case. How, then, can we take seriously their calls to end disparities of justice?

Rubashkin managed the Agriprocessors plant in May 2008, when it was raided by Immigration and Customs Enforcement for employing illegal workers. Approximately 600 federal agents in heavy riot gear stormed the plant, backed by a Black Hawk military helicopter. The feds rounded up nearly 400 illegal immigrants, who were arrested and pressured to enter assembly-line guilty pleas. The tactic was highly controversial and received national publicity (including a congressional hearing). It destroyed not only the company but the economy of Postville, and wiped out the livelihoods of hundreds of workers.

Ever since, prosecutors in Iowa have gone overboard to justify the extravagance of the raid. They indicted Rubashkin seven different times and multiplied charges to separate every advance of funds from the bank and every monthly report from Agriprocessors to the bank for the same line of credit as an additional count against him They even charged Rubashkin with failing to make prompt payments to cattle owners, in violation of a never-before-used federal criminal law, simply because payments were sent a few days late.

Following his conviction in late 2009, the prosecutors really piled on – demanding what amounted to a life sentence for the 51-year old father of 10. That excessive recommendation was overwhelmingly rejected by the national legal community, including six former U.S. attorneys general, who wrote to the presiding judge, arguing that a term of decades in prison would be unreasonable and extreme. The judge was not swayed, giving Rubashkin 27 years — two years more than the government sought.

As a former U.S. Attorney, I am keenly aware of the pressure federal prosecutors are under to garner big convictions. But sometimes, getting the big victory comes at the expense of true justice and more and more we are seeing federal prosecutors step over the lines of good practice. The “win at all costs” mentality certainly hurts individual defendants; but it also constitutes a stain on the American justice system. And from a practical standpoint, using extreme tactics wastes precious resources that can be used to fight crime in other ways.

Attorney General Holder is on the right track by pushing federal prosecutors to seek fair, effective and even-handed administration of justice. But he needs to do more than put good words on paper. The Department of Justice must investigate the Rubashkin case and the many ways in which the prosecution has targeted Sholom Rubashkin for unfair treatment. Anything less than a full review sadly will show the Obama administration is not serious when it calls for equal treatment for all.