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Can All Jewish Defendants Be Denied Bail? (Updated)

handcuffsThe Jewish Week reportedthat in a criminal matter in Iowa, a Federal Magistrate, Jon Stuart Scoles, would not allow a Jewish defendant to be released on bail, essentially just because he is a Jew.

Under Federal law, (New York bail law is a bit different and is defined by the NY Criminal Procedures Law §530.20) bail can only be denied to a defendant if they pose a flight risk or pose a hazard to the community. The authorities cannot keep someone in jail before their trial for any other reason. Pre-trial detention is not a punishment, nor can it be, since everyone is presumed innocent until proven guilty at trial. However, the law does provide that if the person is likely to flee from the authorities, that person may be kept in custody solely for the purpose of ensuring that he/she still be around for the trial.

Some other parties the Federal authorities were after fled to Israel. The Judge in the case, when considering bail for the primary defendant, Mr. Shalom Rubashkin, cited the defendant’s Jewish identity as one reason he was denying bail. The judge wrotethat “[u]nder Israel’s Law of Return, any Jew and members of his family who have expressed their desire to settle in Israel will be granted citizenship.”

In my opinion, the judge’s rationale is not absurd. In a case of white collar crime, where there defendant poses no danger to the community, the only way bail can be denied is if the person poses a flight risk. Since in this case, the prosecutors claimed that other defendants had fled to Israel, and since any Jew may move to Israel and obtain instant citizenship because of Israel’s “Right of Return” law, it is reasonable to think that Mr. Rubashkin may pose a flight risk. My problem with his ruling is not that it’s irrational. It’s that it may be unconstitutional.

The constitution prohibits government action which treats different classes of people differently in the Equal Protection Clause of the 14th Amendment. The law must make natural distinctions and treat those classes of people differently. For example, the court treats people with a criminal record differently than those without a criminal record. But if the government treats different people differently based on their class membership because of certain unfair or prejudicial distinctions, those laws are subject to especially strict scrutiny by the courts.

Based on this judge’s ruling, he is making a distinction based on a defendant’s Jewish heritage, and treating him differently because of that. It is reasonable that any law that treats one differently because of their Jewish status would be immediately suspect because it meets the elements of an inappropriately discriminatory law. Those four categories are:

  1. The groups’ characteristics are immutable. (Race, national origin)
  2. The group shares a history of discrimination.
  3. The group is politically impotent.
  4. The group is a discrete and insular minority.

Distinctions based on one’s Jewish identity would seem to fall into this category. Rubashkins defense attorney did make this argument when pushing for bail, although this argument went unheeded by the judge. It will be interesting to see how this ruling plays out and whether other judges will be begin denying bail to Jewish defendants on the same grounds.

Certainly, if any of our readers in New York find themselves in trouble with the law, they require a good attorney for not only the bail aspect of the case, but also for mounting a vigorous defense in general. If that describes you or a friend, be in touch!

Update 1/17/09: Due to the severe blowback that resulted from the denial of bain in this case, a new bail hearing will be held.

Update 1/27/09: In the new bail hearing, bail was granted, and Mr. Rubashkin will go home until trial.

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