Legal Commentary

May a Person?s ?Be[ing] Unable to Fully Practice His Faith in Prison? Be a Factor in Favor of Releasing Him on Bail?

By Eugene Volokh

The Wall Street Journal reports:

[Several Orthodox] rabbis ... are demanding the release on bail of Rubashkin as he awaits sentencing on the 86 counts of financial fraud that a federal jury found him guilty of last fall....

Speaking at a press conference at the National Press Club Tuesday, Rabbi Chaim Dovid Zwiebel of Agudath Israel of America ... said [the rabbis] sought to address ?a humanitarian issue? ? that Rubashkin, himself an Orthodox Jew, has been unable to fully practice his faith in prison, and that prosecutors have unjustly pushed to keep him behind bars until he gets his prison sentence.

?We believe local federal prosecutors have been extraordinarily inflexible and harsh? in their urging the courts to reject bail, Zwiebel said.

The rabbis denied allegations that Rubashkin would be a flight risk, arguing that his and his family?s travel documents have been surrendered and that Rubashkin fully complied with the terms of his bail before his trial began. Zwiebel pointed out the ?heart-rendering aspect? of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term....

I blogged about the case a year ago, when there was some suggestion that Rubashkin was being denied bail before trial partly because he?s Jewish; the magistrate judge?s decision apparently rested partly on the fact that, ?Under 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.? (The opinion didn?t point to other factors that closely link Rubashkin to Israel, the way that any defendant could be closely linked to a foreign country in which he has lived a long time; the focus is on Rubashkin?s ethnicity and the legal consequence that it has in Israeli law, not on his citizenship or his past life history. The opinion did say that ?It is believed that [someone else who might have been in on the same crime,] Hosam Amara, a Muslim with Israeli citizenship, fled to Israel, possibly through Canada,? that defendant had traveled to Canada recently, and that there was other evidence suggestive of a possible desire to flee. But it?s pretty clear that the Israel link in the opinion was based not on the person?s actual connections to Israel but rather his being Jewish and thus being eligible for Israeli citizenship.) Still, pretrial bail was ultimately granted several weeks later, and we?re now on to the separate question of bail pending sentencing.

It seems to me that it?s improper, and unconstitutional, to give people a break when it comes to bail because of their religious practices. I?m sure that being in jail does interfere with people?s religious practices. There are minimum requirements of religious accommodation for inmates (for instance, some sort of kosher or halal food would generally have to be available to Jewish or Muslim inmates), but I?m sure that the inmates can?t have the same sort of religious life that they can have outside; and jail regulations aimed at legitimate security purposes may even end up forcing the inmates to violate some of their felt religious obligations. The story isn?t clear on exactly what the burden on Rubashkin?s religious practice is, but I can easily believe that there is such a burden.

But it seems to me that the question of which defrauders ? or robbers or drunk drivers or whoever else ? stay in jail and which go free, even temporarily, can?t be decided in a way that gives the religiously observant a special break (or for that matter that gives atheists or agnostics a special break). Whatever the permissible scope of special accommodations for religious observers (for a bit more on this, see here), I don?t think such accommodations can extend to granting bail based on a person?s felt religious obligations and the difficulty of continuing to comply with them in jail.

Thanks to Prof. Doug Berman (Sentencing Law and Policy) for the pointer; his post has more on the subject.

Full post as published by The Volokh Conspiracy on January 28, 2010 (boomark / email).