Rubashkin vs. Yanklowitz: Where social justice rejects due process.

The ability of ethnic and racial minorities to excel and become established in the United States is largely a corollary of a governance system that is based on British Commonwealth constitutional separation of powers combined with the added belief in individual liberties that are innate to all free men as established in 1776, which has since been extended by further amendments to include all people regardless of race, sex, creed, and now myriad other qualifying categories. These principles have enabled many "minorities" that were persecuted or at the very least impoverished in their homelands to reach equal status with the rest of society, or even to become  above average in wealth and social status. 

The Jews have benefited as much as if not more than others from this system that gives individual freedom. What is truly troubling to me is that certain elements within our community have set themselves as obstacles to the further enjoyment of those rights by American citizens in order to satisfy their vain and quixotic ambitions of a society without prejudice or hatred. In order to accomplish this goal, these people are disguising their inner anger and lust for power within the sunny cloak of tolerance, love, and social justice.

Rabbi Shmuly Yanklowitz during a farewell visit to the White House
with President Barack Obama, Jan. 10, 2017.

The "Plaintiff"

[Note: For the purposes of readability, I will not use the titles Rabbi or Doctor beyond once for each subject]
Rabbi Dr. Shmuly Yanklowitz call himself the "Social Justice Rav" and is a product of the "Open Orthodoxy" movement and its school Hovevei Torah, a progressive offshoot of the Orthodox Judaism that trends towards gender equality and embraces many modern departures from traditional Jewish legal doctrines. He has a master's degree in education from Harvard in Leadership and Psychology, as well as a doctorate in education from Columbia University. Yanklowitz has been a tireless defender of illegal immigrants, LGBT+ rights, workers rights, and any number of causes popular on the American progressive left. 

Physically, Yanklowitz has the youthful smiling good looks of the typical young American born to an upper middle-class family. He cuts an impressive figure as his website features him meeting with and towering over such luminaries as former President Barack Obama, Supreme Court Associate Justice Elena Kagan the late Eli Wiesel, Michael Douglas and former New York Mayor Michael Bloomberg. One cannot find a better example of a young, effervescent, and for lack of a better term "modern progressive" Jewish clergyman. 

So where does the anger and lust for power come in? That would come from Yanklowitz's past litigation and campaigning against a since bought-out kosher slaughterhouse called Agriprocessors, Inc. of Postville, Iowa. 

The "Defendant"

Rabbi Sholom Mordechai Rubashkin escorted in 2008 by a US Marshal to a federal court hearing in Cedar Rapids, Iowa. (Des Moines Register).

Rabbi Sholom Mordechai Rubashkin was convicted in November 2009 in his capacity of CEO of Agriprocessors for bank fraud, although was to have been tried as well on 72 charges of violating federal immigration laws by employing over 400 illegal immigrants. Rubashkin was the son of a kosher butcher and a devotee of the Lubavitch International-CHABAD wing of Orthodox Judaism, a community and belief system dramatically different from Yanklowitz's Open Orthodoxy. Unlike the "plaintiff", Rubashkin was first and foremost interested in pursuing his private business of supplying kosher meat products as well as employing like minded workers that were dedicated to the same kosher standards that he does. Rubashkin's plant in Iowa was at various under fire for its environmental, animal rights, and workers rights standards including a notorious video by PETA. 

Ultimately however he was convicted on charges of bank fraud, and this was due to his assets being frozen in the aftermath of the prior Immigrations, Customs, and Excise (ICE) raid and other legal sanctions taken against him by the federal government. He has never been convicted in a court of law of any offenses against workers or for violations of animal cruelty laws. In fact he was acquitted of child labor charges in 2010, whereas Agriprocessors as an entity did plead guilty. Does that mean that he is innocent of any of those accusations? No; it means that he is presumed innocent until proven guilty and that the United States government deemed it appropriate not to pursue those charges against him given that the federal judge sentenced him to 27 years in prison, two years in excess of the ceiling requested by the prosecution of 25 years.

Also, unlike the vibrant, clean shaven and youthful Yanklowitz, Rubashkin appears to follow a more traditional image of the diminutive, bearded and middle aged Jew in the ultra-Orthodox garb of a plain white shirt and black suit jacket with a black yarmulke. So in this battle we have two gentlemen, having a common a deep identity with Judaism, are otherwise very different in their approaches to it and their other personal characteristics. So why the present conflict?

The Commutation 

On December 22, 2017 President Donald Trump commuted the sentence of Rubashkin allowing him to go free, but requiring him to continue to pay restitution to his banking creditors in Iowa to the tune of $35 million. I had the experience of spending the past weekend listening to the accounts of two former employees of Rubashkin who happened to think very highly of him and in fact though of him as a personal friend and treasure. Obviously there are probably those that think otherwise of him. What I was struck by however was not only their joy at his release, but at their frank concession that he should have served at least some time in prison for the crimes that he was convicted of. It has been rare over the years to hear anyone claim that he should be completely exonerated; the fact is that there were violations of immigration law at Agriprocessors under Sholom Rubashkin, and if they had been pursued then perhaps there would have been discovered cases of environmental violations and animal rights abuse. 

The Reaction

One can debate whether this man was appropriately prosecuted, or whether the punishment fit the crime, but ultimately most would agree that a 27 year prison sentence for a federal crime that normally draws a sentence of 5 years smacks of judicial zealotry.  

For Shmuly Yanklowitz however, this is not sufficient. The 27 year prison sentence that would have left Rubashkin in prison until the age of 77 was wholly apropos,  and in an op-ed in Newsweek claimed that the commutation should provoke this reaction:

We should mourn that our kosher systems continue to be broken, that they are consumed with ritual detail but largely neglectful and unconcerned with the ethical dynamics: worker rights, animal welfare, environmental protection, human health, among many important ethical considerations. As a rabbi, I’m ashamed to admit that kosher products today are not “a higher ethical standard.”

Yanklowitz's  tortured response reflects more on him than it does on Sholom Rubashkin. We know that Rubashkin's conviction was arrived at through the American justice system which is based on the presumption of innocence, and for what it's worth there are certainly other crimes for which he could have been prosecuted. To use an extreme parallel, Al Capone was convicted of tax evasion; does that mean that he did not murder rivals and violate Prohibition laws? No, but it happened to be that the easiest conviction was for tax evation. As in many other instances when criminals are convicted of crimes that are deemed peripheral to their main activities, it is not up to Shmuly Yanklowitz to pin Rubashkin's scalp to a wall as an example that "thus shall be done to he who violates this principle of (INSERT HERE)".

To be fair, there are conservative pundits that have the same righteous indignation at times, such as those that ranted and raved when OJ Simpson was paroled earlier this year. "It's like he's getting away with double murder again", they seemed to say. These enraged souls miss the crucial detail: Though most Americans are confident that Simpson murdered Nicole Brown and Ronald Goldman, he was acquitted of that crime in a court of law, and he was only convicted on a completely unrelated armed robbery charge in 2007, that itself may have been over-zealously prosecuted.  

Furthermore, in a criminal trial prosecutors may at times only use prior convictions of felonies or other crimes of dishonesty, and these cannot be used to impeach the credibility of the defendant. How much more so for offenses for which any defendant such as Rubashkin was not yet convicted? So what is Yanklowitz's problem?

Restorative justice for a reality that never was or will ever be

As the "social justice Rav", Yanklowitz doesn't care about the due process of law, the presumption of innocence, and other basic principles of our criminal justice system. That is because he takes the ideas of "social justice" and combines them with a divine imperative. He describes that relationship between his religious beliefs and social justice in this video.

Social justice is defined as such by the Center for Economic and Social Justice: 

"Social Justice is the virtue which guides us in creating those organized human interactions we institutions. In turn, social institution  when justly organized provide us with access to what is good for the person, both individually and in our associations with others. Social justice also imposes on each of us a personal responsibility to work with others to design and continually perfect our institutions as tools for personal and social development".

Here we see that the values that Yanklowitz espouses are communal in nature as they emphasize not just the individual but his "associations" and his "personal and social development". For Yanklowitz the Agriprocessors affair was not just a case of prosecuting the crime of a corporation and its CEO, but also one of correcting a number of social ills that he perceived were harmful to the health and welfare of society as a whole. The fact that Sholom Rubashkin was not convicted on the basis of labour, animal rights, or other ethical crimes but on a bank fraud charge was immaterial as he was content to see him sent to federal prison for 27 years as a result of a sentencing that was more than five times the normal length of one for a typical conviction for a similar charge. To Yanklowitz it was also immaterial that no less than 4 former attorneys general of the United States, ranging from conservative icon Edwin Meese III (Ronald Reagan Administration) to far left activist Ramsey Clark (Lyndon Johnson Administration) have all found that the sentencing was excessive for a first time offender. Again, as stated before, the sentencing can only be levied based on the crimes for which the defendant has been convicted, NOT others that he may or may not have been convicted of in further criminal trials.

Former George HW Bush Attorney General Dick Thornburgh (Below)
and former Bill Clinton Deputy Attorney General Jamie Gorelick (Above)
both signed a 2016 letter to President Obama requesting a commutation for
Sholom Rubashkin due to the overzealous federal prosecution.

No, to Yanklowitz such details of this case were and continue to be just that - details. More important in his mind, as evidenced by his response in Newsweek was to further his personal agenda of promoting a society based on social justice. Well, how pray tell is that to be accomplished? I apologize to those more qualified than me; I am not a lawyer, and have no pretensions to being one but the past 4 years of observing this type of mob of emotion justice has made it necessary that even common peons like myself must educate ourselves and proclaim to others the basic rights guaranteed under our Constitution. 

In Jewish law, Yanklowitz would probably be forced to admit that the burden of proof is much higher and happens to exclude many things such as forensic and documentary evidence in favour of direct witnesses. So instead he focuses on social justice where evidence is irrelevant entirely. As someone born into American society and unused to any other system of justice, I have a natural bias in favour of preserving this system while acknowledging that there are areas where it can be deemed flawed or unfair. I often do see contradictions between the procedures of American justice and whatever traditional Torah law that I've learned, but rather than rage against it, I make do with the basic human reality that the universe does not always align to give the best outcome for anyone.  Yanklowitz however sees American criminal justice as ignorant and unjust, and like the more progressive denominations of Conservative and Reform Judaism combines his own convenience-based interpretation of Judaism with the revolutionary activism of social justice to create a contrived social-religious belief system that is the Jewish equivalent of Catholicism's Liberation Theology. 

For example read here his opinion piece in the Jewish Journal concerning the imperative that a group of 20 Orthodox rabbis see that Congress arrive at a solution to keep in the United States the 800,000 illegal immigrants that received temporary stays of deportation when they were minors. Yanklowitz, as in many other cases here, leads with his instinct of "compassion", but not with the clarity of reason. He invokes verses in Leviticus and the Bava Metzia Talmudic tractate that call upon Jews to embrace the sojourner in their land and not harass him. Unmentioned in this long plea are two crucial elements of context to those examples:

• The "sojourner" in this case cannot venture into the land and do as he pleases. He must abide by the laws of the Torah and its courts and the king of the time in question, and under Jewish law that could include renouncing his foreign faith. Whether this is a "fair" demand or not is not what is in question here; what is important is that Yanklowitz omits this wilfully.
• Under the "Establishment Clause" of the First Amendment to the US Constitution, the principles under which Yanklowitz puts forth his argument are not binding, because as it states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
• Does Yanklowitz's "social justice" address the concerns of the families of the victims of illegal alien criminals that were protected under DACA such as Daniel de Jesus Rangel Sherrer, a Mexican national who in October 2017 murdered a high school junior named Diana Martinez-Gonzalez? 

I am not going to claim any moral or expert authority based on any legal experience, rabbinical ordination, or past accomplishments. But it seems to me that Yanklowitz's grandstanding over the Rubashkin commutation is yet another example of him seizing an easy target and criticizing it for all of the wrong reasons. I hope this piece will encourage others to look at these issues with a more dispassionate eye as opposed to chasing windmills in the pursuit of the picaresque and fruitless improvised caused of social justice.