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Bail Granted in Rubashkin:

This is the case where the court denied bail, apparently partly based on the theory that a Jewish defendant is entitled to Israeli citizenship and may therefore more easily flee. This morning, the court granted the defendant's motion to revoke the order of detention (I saw on the court's PACER computer system). Radio Iowa reports that bail was set at $500,000. Thanks to Jack Levely for the pointer.

Anderson (mail):
Great news! I was worried about the casualties that were about to result when the Mossad busted him out.
1.27.2009 5:17pm
Thales (mail) (www):
Wasn't this in a Law &Order episode?
1.27.2009 5:22pm
man from mars:
Another case raising similar questions on legal system's treatment of Hasidic Jews: the pink diamond case.

In that case a plaintiff claimed he purchased an "intense pink diamond" for $8000 from a mysterious German whom he met while he was waiting in a lunch line in Las Vegas, and that the diamond was then stolen by some orthodox Jewish diamond merchants to whom he sent it. No documents or photographs or receipts attested to the diamond's existence. Only one other person testified to having seen the diamond, but he was in federal prison for fraud at the time of the trial. The plaintiff had made numerous similar claims involving missing jewels times in the past few years.

Nonetheless, the judge denied the motion for a directed verdict, and the jury awarded the plaintiff $6 million.

Cases like these cause me to suspect that some judges and juries find Hasidic defendants inherently untrustworthy. Perhaps it's their dress?
1.27.2009 5:59pm
Oren:
Don't we have the ability to flag his name and have CBP pick him up if he tries to leave the country?
1.27.2009 6:32pm
anomdebus (mail):
I do not at first glance disagree with the original finding. This is mostly due to defenders of status-quo challenging dissenters leave if not happy. If it were as easy to move intercountry as it is to move interstate (in the US, though probably relevant in most places), then that wouldn't be a problem. Another problem is no country that I am aware of is courting small-l libertarians (or any capitalization thereof).
1.27.2009 6:46pm
Sergei Zhulik (mail) (www):
As an aside, am I the only one skeptical of US v. Salerno? I've always thought the court really flubbed up its Due Process analysis simply to arrive at the result sought in that one.
1.27.2009 7:00pm
Ricardo (mail):
There was a case in Maryland where a teenager, Samuel Sheinbein, committed a genuinely horrific murder (one that would have been eligible for the death penalty) in 1997 and then flew to Israel before he could be arrested. He didn't have Israeli citizenship but claimed he was entitled to seek it if he wanted. Since Israeli law did not at the time allow the government to extradite anyone eligible for citizenship, he was never sent back to the U.S. Instead, Israel prosecuted him under its own laws -- he will probably be eligible for release within 10 years.

According to the latest NY Times article on the case, Israel has apparently changed its extradition law so that non-residents may be extradited.
1.27.2009 8:53pm
man from mars:
Sergei Zhulik writes

As an aside, am I the only one skeptical of US v. Salerno? I've always thought the court really flubbed up its Due Process analysis simply to arrive at the result sought in that one.

I agree with you. You could tell Salerno would twist the constitution because its analysis began with what ought to be the least important factor in assessing constitutionality: Congress's justification, based on legislative history, for its impingement on due process:

Responding to "the alarming problem of crimes committed by persons on release," S.Rep. No. 98-225, p. 3 (1983), Congress formulated the Bail Reform Act of 1984, 18 U.S.C. ยง 3141 et seq. (1982 ed., Supp. III), as the solution to a bail crisis in the federal courts.




Salerno also provides a great example of slippery slope jurisprudence.

The court used cases like Ludecke v. Watckins, which the Court characterized as holding that there is an "unreviewable executive power to detain enemy aliens in time of war" to justify (via the slippery slope) denying bail to a citizen accused of a domestic crime based on a theory of future dangerousness.

In fact, the passage on page 480 of the opinion so quintessentially illustrates slippery slope - the slope from war and insurrection, to insane persons, to ordinary criminals - that it deserves to be quoted in full:


We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous. See Ludecke v. Watkins, 335 U. S. 160 (1948) (approving unreviewable executive power to detain enemy aliens in time of war); Mover v. Peabody, 212 U. S. 78, 212 U. S. 84-85 (1909) (rejecting due process claim of individual jailed without probable cause by Governor in time of insurrection). Even outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons. Thus, we have found no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings. Carlson v. Landon, 342 U. S. 524, 342 U. S. 537-542 (1952); Wong Wing v. United States, 163 U. S. 228 (1896).
1.27.2009 9:37pm
Yankev (mail):
Ricardo, the Sheinbein case was indeed horrific. But the Sheinbein case would also seem yo be irrelevant to R. Rubashkin's bail hearing for at least two reasons. First, as you point out, Israel has since amended its extradition law. Second, as you also pointed out, Sheinbein got to Israel before he was arrested. The Law of Return allows Jews to claim citizenship after they get to Israel, not before. R. Rubashkin had already surrendered his passport. Without it, he could not travel to Israel even if he wanted to take advantage of the Law of Return.
1.27.2009 10:13pm
Sergei Zhulik (mail) (www):
Man from Mars:

I couldn't help but smile when you singled out legislative intent as being of questionable value here (in substantive due process analyses). This is precisely what irks me most about Salerno--the Court almost fetishizes it.

And, for all legislative intent might prove useful in some analyses (Equal Protection comes to mind), I'm not entirely sure it has almost any place in substantive Due Process jurisprudence.

Substantive Due Process asks a simple question: when the system burdens the individual, does the burden imposed conform to what the individual ought to be on guard against? The focus of the inquiry thus becomes the perspective of the reasonable individual, not the reasonableness of a state's burden. Granted, the two almost always intersect, but to assume they track each other in lock-step is rather dangerous.

The Salerno court noted extensive Congressional factfinding, that indicated a serious problem, and directly engendered a rational response. Fine. But how aware could the reasonable citizen have been of the systemic and social impact of skipping bail? Obviously, we all know fleeing justice is a problem, but how many of us expect that we would be denied bail upon a solo judge's determination that our freedom would threaten the "safety of the community?"

This isn't to say I disagree vociferously with the holding--had the court applied the proper framework, I concede there might still be room for debate. The Bail Reform Act of '84 does rope in judicial discretion considerably. And consequently, it's hard to envision a situation where someone detained on the "community safety" basis wouldn't know deep down that his release actually is a threat thereto. (Refer to the specific statutory regime established for utilizing the "community safety" basis. It's rather comprehensive.)

But, the point is that the specific framework the Court utilized here really bothers me.
1.27.2009 11:50pm
sbron:
The lack of outrage among labor leaders and Americans in general about the Rabushkin case and Agriprocessors is disgusting. The plant had child labor, 16 hour workdays, identity theft, dangerous working conditions, along with willful and casual violation of Federal immigration law. As a Jew, I am furthermore outraged that the Agriprocessors plant was given Kosher certification, and that so many left-wing Jews took the side of the illegal workers. The illegal immigrants in Postville see the U.S. as just a paycheck and have no interest in assimilation. Their presence imposes enormous social and financial costs on the taxpayer as their wages scarcely pay for the education and health care of their children.

Many Jews used to stand for workers' rights and national sovereignty. How did we get from Samuel Gompers to the Rabushkin family?
1.28.2009 10:17am
Happyshooter:
What's the over/under for when he is safe at home? I am going to stake 18 days prior to trial.
1.28.2009 10:34am
Happyshooter:
Don't we have the ability to flag his name and have CBP pick him up if he tries to leave the country?

Nope, he can be in Canada without going through a crossing station within 6 hours. Once he gets his right of return travel document from the embassy he is home free within another 12 hours.

The US/Canada border points are only for honest people and folks that want to take a car over.
1.28.2009 10:37am
Duncan Frissell (mail):
Since anyone with (at least) one Irish grandparent can get an Irish passport, I wonder if the Irish are also at risk?

Alex Kelley who fled rape trials in Connecticut and wandered Europe for 9 years before being brought back to the US, reportedly considered getting an Irish passport to ease his travels.
1.28.2009 12:25pm
Yankev (mail):

Once he gets his right of return travel document from the embassy he is home free within another 12 hours.
Pray tell what is a "right of return travel document from the embassy"? As far as I know, right of return cannot be claimed until one actually reaches Israel, and not merely at an embassy or consulate.

Does such a document exist, or is this something whose existence you have speculated?
1.28.2009 5:46pm
Happyshooter:
The aliyah visa is issued by the embassy based on a rabbi certification of jewish status and is a travel document issued for the purpose of setting foot on Israel soil and getting the Oleh's Certificate and citizenship.

I have to say, we like to fight here a lot about cool stuff. However, it is pretty clear this dude is going to do a runner or at least was warming up to run. I am starting to question why some folks, for sure in the last thread, are claiming he won't and doing the academic poo-poo by nit picking points.
1.29.2009 10:02am

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