On May 3, 2012, an amicus curiae brief was filed in the U.S. Supreme Court on behalf of the Justice Fellowship and a group of law professors who practice in the areas of criminal law and sentencing. The brief was filed in the case of Rubashkin v. United States, a highly publicized case in which Sholom Rubashkin, the former operator of a kosher slaughter house, was sentenced to 27 years in prison in 2009 for 86 counts of financial fraud.

Rubashkin’s bid for a new trial after his conviction in federal court in Iowa was denied by the U.S. Court of Appeals for the 8th Circuit in 2011. Earlier this year, he filed a petition to the Supreme Court for certiorari.

The brief filed by Ifrah Law contends that that principles applied by the 8th Circuit in affirming Rubashkin’s sentence “are at odds with the principles applied by at least three other Circuit Courts of Appeal” and “could have a very negative impact on the law and policy of federal sentencing under advisory guidelines.”

Federal appeals courts, the brief contends, have the duty to ensure that all criminal sentences are “procedurally reasonable,” which includes the idea that sentences must not include unwarranted disparities with the sentences imposed for similar defendants who committed similar crimes.

Appeals courts, the brief says, have uniformly held that in order to permit meaningful appellate review on this issue, trial judges need to state on the record their reasons for accepting or rejecting the arguments that were made for or against the sentence that they imposed. “There is no way for the appellate court to determine whether the trial court considered [an] argument if the court does not address it explicitly,” the Ifrah brief said.

In the Rubashkin case, the trial court “failed to make any record that it considered the defendant’s non-frivolous argument regarding the need to avoid unwarranted sentencing disparities,” the brief points out. This failure, the brief says, is at variance with the rule in at least three other federal circuit courts of appeal.

Accordingly, the brief urges the Supreme Court to accept the case and to resolve the circuit conflict.

In addition, Rubashkin is also seeking Supreme Court review on a different issue – that the federal trial judge, Linda Reade, had in effect become part of the prosecution team by actively engaging in the planning of a raid on Rubashkin’s facility by federal agents and helping the agents plan their strategy. The “Sentencing Law and Policy” blog has used the term “prosecutorial and judicial misconduct” to refer to the judge’s alleged activity and the prosecution’s failure to inform the defendants about it.

We hope that the Supreme Court accepts this case and takes a step toward curbing the excessive concentration of power in the hands of federal prosecutors and judges.