President Barack Obama has been using his waning days in office to cement his legacy as the most merciful president in recent memory. Two weeks ago, he commuted 153 sentences of primarily low-level drug offenders ensnared in statutorily mandated minimum sentences, bringing his overall commutation total to the highest of the last 11 presidents combined. Although that’s not the total picture — if no more action is taken, Obama will leave office this month as the second-least-likely president in history to grant pardons — it’s hard to question whether the outgoing president’s embrace of clemency is genuine.
But amid all of the mercy being doled out on nonviolent drug dealers and addicts, absolutely none has so far come the way of Sholom Mordechai Rubashkin. For those unfamiliar with his case, Rubashkin was the disgraced chief executive of what was the nation’s largest kosher meat processing facility — Postville, Iowa-based Agriprocessors — who was caught in 2008 allegedly violating U.S. immigration laws by providing fraudulent documents to migrant workers. He was ultimately convicted of bank fraud and other financial crimes that were revealed during the course of the investigation, including mishandling a business loan from an Iowa bank. In 2010, he was sentenced to 27 years in prison.
There is no question that Rubashkin broke the law and deserved to be punished. But 107 former Justice Department officials have joined with legislators from Capitol Hill and Orthodox Jewish leaders to argue that justice was far from served by dispatching an aging father of 10 — at 57 years old, Rubashkin still has 20 years left of his sentence — behind bars for close to three decades. Their charge is that overzealous prosecutors improperly influenced the sentencing phase of Rubashkin’s trial, effectively inflating the punishment handed down by Judge Linda Reade.
As outlined in a recent Washington Post opinion piece by Philip B. Heymann, a former deputy attorney general from the Clinton administration, evidence not shared with Rubashkin’s defense has surfaced implicating prosecutors in unfairly driving down the value of Agriprocessors by threatening possible buyers after the firm declared bankruptcy. Because bank fraud sentences are determined based upon the value of the overall loss to creditors, had the company fetched the price it should have, Rubashkin’s bank would have recouped more of its mishandled funds and Rubashkin himself would have faced less time in prison.
Accusations of prosecutorial misconduct are quite common in campaigns that seek sentence reductions and the granting of new trials. But the scope and prominence of the groups and individuals backing Rubashkin’s pleas is impressive. And the fact that the Justice Department has refused to listen to their grievances is quite troubling.
A defendant doesn’t have to be innocent in order for a serious miscarriage of justice to have resulted in his trial and sentencing. The outgoing president seems to understand this basic fact. It is most unfortunate, however, that his administration appears unwilling to apply that lesson to Rubashkin.