No Comment on Rubashkin?

By Eliyahu Federman, Jerusalem Post

President Barack Obama had no reservations attempting to block the execution of Humberto Leal Garcia, a Mexican man that was convicted in 1994 of the rape and murder of a 16-yearold girl in San Antonio. On July 5, 2011, The Guardian reported that: “The White House has asked the US Supreme Court to put the execution of Humberto Leal Garcia on hold while Congress passes a law that would prevent the convicted rapist and murderer from being put to death along with dozens of other foreign nationals who were denied proper access to diplomatic representation before trials for capital crimes.”

Of course we all also remember the president’s public comments regarding allegations of police misconduct in the arrest of Henry Louis Gates on July 16, 2009.

In that case Obama seized the opportunity to point out that “[r]ace is still a troubling aspect of our society” and implored all Americans to calmly ponder ways to improve race relations “between police officers and minority communities.”

While Obama did not intervene in the local matter, he did use the moment to reflect on wider concerns of addressing police-community relations.

COMPARE THAT to the president’s silence regarding the case of Sholom Mordechai Rubashkin, who was convicted of bank fraud and sentenced by District Court Judge Linda Rae Reade to 27 years in prison for his mishandling of a revolving loan from First Bank Business Capital of St. Louis, as well as other loans.

Aside from the fact that Judge Reade’s extrajudicial ex-parte secret meetings with the prosecution were wholly inappropriate and undermined the fairness of the trial, a sentence of 27 years should be reserved for the most hardened criminals in our society, not a first-time, nonviolent offense. The ACLU, the Washington Legal Foundation and the National Association of Criminal Defense Lawyers filed supporting briefs in the appeal.

District and appellate courts have repeatedly imposed and approved single digit sentences in higher-dollar-loss white-collar cases.

But the White House has not reacted to those appeals.

A White House petition documented that over 75 law professors, including three former deputy attorneysgeneral, and 47 members of the House of Representatives separately and independently wrote to Attorney General Eric Holder calling for an investigation into prosecutorial misconduct surrounding Rubashkin’s disproportionate sentence.

A staggering 52,226 signed that petition – the president promised he would respond to any petition garnering 5,000 signatures – but Obama has yet to reply to the specifics of Rubashkin’s case or even address the broader policy concerns surrounding sentencing disparities.

The Obama administration said only that “[w]ith respect to law enforcement matters, the Department of Justice is charged with investigating crime and enforcing our laws” and that there are already “mechanisms in place to investigate allegations of prosecutorial misconduct.”

Sentencing disparities are well documented in our criminal justice system. A substantive response addressing the merits of Rubashkin’s claims may not be expected, but the Obama administration’s deafening silence failed to even acknowledge the bigger policy issue surrounding sentencing disparities in cases of prosecutorial misconduct.

In this particular case a Jewish man received a punishment that does not fit the crime, but a majority of unfair sentences in the United States are handed down to black people, Hispanics and members of other minority groups. It’s shameful and insensitive that Obama would not even take the time to acknowledge sentencing disparities in our system, even if he reserved comment on the merits of this particular case due to understandable separation of power concerns.

Obama was quick to attempt to prevent an execution of a man convicted of the rape and murder of an innocent 16-year-old girl and comment on a local police incident that he believed had racial undertones. In the first three years of his presidency he has granted clemency 17 times, including for several drug-related convictions. In light of those examples, his silence in the case of a nonviolent first-time offender with widespread public support speaks volumes.

Today, we can only hope the Supreme Court grants certiorari, or even for the less-likely scenario of a presidential pardon for Rubashkin.

We can only hope and pray for one of these remedies to remove this stain of injustice.

The writer is a graduate of the City University of New York School of Law, where he served as an executive editor of the law review. He has advocated for gender equality in voting rights, sexual abuse awareness and better police-community relations in Crown Heights.