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Law of Return: a Factor in Setting Bail for Jewish Defendants?

New York Law Journal

July 23, 2009

Israel’s Law of Return, enacted by the Israeli Parliament in 1950, enables persons of Jewish identity to obtain automatic Israeli citizenship. The Law of Return defines Jewish identity broadly, including those who are Jewish by birth or as a result of conversion within the category of those eligible to acquire Israeli citizenship. Occasionally, Israel’s existence as a haven for Jews has been cited by prosecutors and courts as a basis for denying bail to Jewish defendants in criminal cases. In some instances, prosecutors and courts have explicitly cited the Law of Return when advancing such a position; at other times, the arguments have emphasized the theoretical possibility an individual might flee to Israel, without expressly mentioning the Law of Return. In either case, the question remains: Is the existence of Israel, as a potential refuge for Jews, a legitimate consideration when setting bail for Jewish defendants?

This issue reared its head a few months ago, after the arrest by federal authorities in Iowa of Sholom Rubashkin, a member of the Lubavitch Chasidic community. Mr. Rubashkin, an executive of Agriprocessors, Inc., who had recently run the company’s very large meatpacking plant in Postville, Iowa, was charged with various offenses including immigration and bank fraud. The government sought Mr. Rubashkin’s detention, without bail, on the ground he posed a flight risk.

Although Mr. Rubashkin is an American and not an Israeli citizen, the government argued that the existence of the Law of Return made Mr. Rubashkin a greater flight risk than he otherwise might have posed. Initially, the Court agreed, citing the Law of Return as one of its reasons for concluding that Mr. Rubashkin would pose an unacceptably high risk of flight, if released on bail. Although Mr. Rubashkin was ultimately released on bail, perceptions about the significance of Israel’s Law of Return unquestionably played some role in the original denial of Mr. Rubashkin’s bail and his subsequent incarceration—for approximately three months.

With the Rubashkin case as a backdrop, it is useful to focus in somewhat greater depth on the federal statute that governs the setting of bail conditions, the Law of Return, and the current form of the extradition treaty between Israel and the United States.

The Bail Reform Act

The Bail Reform Act[1] permits a court to order pretrial detention if it finds, by a preponderance of the evidence, either that (1) the defendant would pose a danger to the community, if allowed to remain at liberty; or (2) that no condition or combination of conditions could reasonably assure the defendant’s presence at trial.[2]

Although pretrial detention is therefore sometimes permitted under the Bail Reform Act, the United States Supreme Court has emphasized that pretrial detention ought to be an infrequent outcome. “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”[3]

Israel’s Law of Return

Israel’s Law of Return allows any Jewish person (and members of his immediate family) to acquire Israeli citizenship.[4]  All that is required is an expression of a desire to become an Israeli citizen. The Law of Return welcomes Jews from all nations, unless the Minister of Immigration determines that the applicant is engaged in an activity directed against the Jewish people, or is likely to endanger public health or the security of the state.[5]

Extradition Treaty

The United States and Israel adhere to an extradition convention that renders it extremely difficult for an American defendant seeking asylum in Israel to escape prosecution in the United States.

The 1963 treaty forces both nations to “deliver up” for prosecution persons who have been charged with or convicted of serious offenses, such as murder, manslaughter, rape, kidnapping, robbery, burglary, larceny, embezzlement, bribery, and extortion, among many others.[6]

A recent amendment to the treaty, enacted in 2005, made it more difficult still for an American Jew to avoid extradition. Specifically, the amendment broadened the definition of extraditable offenses to those “punishable under the laws in both parties by deprivation of liberty for a period of one year or by a more severe penalty.” The amendment also states that neither party shall fail to “deliver up” a defendant simply because the person is a national or resident of the delivering party. Even in the rare event that extradition is denied or prohibited, the amendment also now ensures that “the requested party shall enforce…according to its laws, the sentence imposed by the requesting party even if that sentence exceeds the maximum penalty for such offense in the requested party.”[7]

Equal Protection Argument

Reliance on Israel as a Jewish-American’s safe haven may violate the Equal Protection Clause. When the Rubashkin court accepted the government’s argument that Mr. Rubashkin’s Jewish heritage made him a flight risk, the court appeared to ignore some significant facts. At the time of the alleged crime, Mr. Rubashkin was not an Israeli citizen, had no bank accounts, property, or any other assets in Israeli, did not have an Israeli passport or visa, and his wife, children, and parents were all U.S. residents and citizens and not citizens of Israel.

The government presented very little evidence that Mr. Rubashkin had any ties to Israel at all, other than evidence of Mr. Rubashkin’s short trip to Israel a year prior to the charges. Despite this, the court explicitly cited the Law of Return as one of the factors it considered in reaching its conclusion that bail would be denied.

Both before and after the original decision to deny bail, Mr. Rubashkin’s lawyers argued that there was a thin line (or none at all) between the government’s position and the notion that every Jewish person was a flight risk. Indeed, denying bail based upon the Law of Return appears to violate a Jewish individual’s right to equal protection under the law.

As Mr. Rubashkin’s lawyers argued, Jews are a protected class of persons and therefore, any rule which treats Jews differently than non-Jews must be subjected to strict scrutiny. Strict scrutiny requires the government to prove that its religious classification is a narrowly tailored measure that furthers compelling governmental interests.[8]  And here, the government did not endeavor to supply such proof—or even acknowledge the discriminatory impact of its argument.

The Rubashkin court failed to disavow reliance on the Law of Return or a Jewish defendant’s ties to Israel as unconstitutional. On Jan. 28, 2009, the District Court judge reversed the decision of the magistrate to deny bail. In its decision granting bail, the District Court said the following:

it is the undersigned’s view that the parties have placed far too much emphasis in their briefing over Israel’s ‘Law of Return.’ It is undisputed that Defendant would be entitled to Israeli citizenship were he to flee to Israel. While the availability of foreign citizenship might theoretically make Defendant more likely to flee to Israel (just as if any other citizen were entitled to claim citizenship in a foreign country), there is absolutely no evidence Defendant has any ties to Israel or has made any preparations to flee to Israel. Based on the particular circumstances of this case, Defendant is not a “de facto” dual citizen as the government alleges.

Clearly, from the perspective of Mr. Rubashkin or Jewish defendants generally, this was an improvement in the way Jewishness was to be considered in the context of bail. But yet, by failing to reject reliance on the defendant’s Jewishness as unconstitutional, the court left open the possibility that it might consider a future defendant’s Jewish religion as a possible reason for denying bail.

How frequently does this issue arise? Mr. Rubashkin’s lawyers quoted Leonard Joy, the federal defender for the Southern and Eastern Districts of New York, for his stated recollection that no prosecutor or court had recently invoked the Law of Return in the bail context. But although it may not happen frequently, it does happen. Two examples are instructive. Most importantly, the examples suggest that although the Department of Justice does not make it a matter of policy to base bail arguments on the Law of Return, it does not have a policy against doing so either.

(1) As recently as 2007, the U.S. Attorney for the Western District of Pennsylvania argued that former Allegheny County Coroner, Dr. Cyril Wecht, should be denied bail, on the ground that the Law of Return made Israel a refuge for Dr. Wecht in the event he were to flee.

(2) In 2001, the United States Attorney for the District of Connecticut argued that a Jewish citizen of Colombia charged with money laundering was a flight risk because of his purported ties to Israel. The government advanced this argument, even though the Defendant in question was not a citizen of Israel and had not spent any time in Israel, longer than a two-week vacation, for more than a decade before his arrest.

What these examples (together with the Rubashkin case) may suggest is that a Jewish defendant is more likely to encounter bail arguments based upon the Law of Return if the case is prosecuted in a district where relatively few Jews live (e.g., Iowa), or where the defendant in question has some other characteristic that appears, to the authorities, to makes him “different” (e.g., Chasidic affiliation or citizenship of a country other than the United States).

Moreover, the occasional citation of the Law of Return as creating a “flight risk” may stem, in part, from an imprecise understanding of a few cases with very unusual facts.

For example, In September 1997, Samuel Sheinbein, a Maryland teenager, killed Alfredo Enrique Tello Jr. in Aspen Hill, Maryland. When police began to suspect Sheinbein, he fled to Israel, where he was arrested. Both the American and Israeli governments attempted to have him extradited, but the Israeli Supreme Court forbade extradition in a 3-2 ruling in 1999, holding that Sheinbein had always been an Israeli citizen on the theory he inherited his father’s Israeli citizenship.[9]

But even at its time, the Shein­bein case was atypical. As described, the Israeli Court’s holding was based upon the citizenship of Mr. Sheinbein’s father. Any other person situated similarly to Mr. Sheinbein, but lacking Israeli citizenship before the commission of the alleged offense, would have likely been extradited under the terms of the extradition treaty as it then existed.

Moreover, should the Sheinbein facts be repeated, the 2005 amendments to the extradition treaty (eliminating citizenship as a ground for refusing extradition) make it almost inconceivable that a criminal like Mr. Sheinbein would defeat extradition today.

The U.S.-Israel Extradition Treaty should make the Law of Return irrelevant. With its 2005 amendments, the treaty now provides that defendants like Sholom Rubashkin are to be handed over to the U.S. government, even if they had been citizens of Israel, before the commission of the extraditable offense.

It is worth noting that the extradition treaty between the United States and Israel is stronger than others the United States maintains with various western nations. Most such extradition treaties do not require the requested country to deliver nationals or residents. The extradition treaty with France, for instance, states that there is no obligation upon the requested party to grant extradition of a person who is a national of the requested state.[10]

Similarly, the treaties maintained with Germany and Brazil do not require the requested state to extradite its own nationals or citizens but instead repose complete discretion in the government of the requested state, when its own citizen is the subject of an extradition request.[11]  By contrast, the treaty with Israel obligates it to extradite, even if the subject of the extradition request is a national, citizen, or resident, effectively rendering moot any argument for detention based on a defendant’s ties to Israel as a person of Jewish faith.

Conclusion

The Rubashkin case makes fresh the concern that courts will discriminate against Jewish defendants based upon misperceptions about the Law of Return and Israel’s perceived willingness to create a refuge for non-Israeli Jews fleeing prosecution elsewhere. As Mr. Rubashkin’s lawyers pointed out, “by continuing to assert this Law of Return, they’re saying when a person comes before the court, then special rules apply to you. The first question will then be, ‘Are you a Jew?’“[12] The court’s order reversing the decision to detain Mr. Rubashkin was a step in the right direction, but the question remains: In the future, will the government again point to the Law of Return or the existence of Israel as a reason for denying bail to a Jewish defendant? 


Alan Lewis is a partner at Carter Ledyard & Milburn and co-heads the internal investigations and white-collar defense practice group. Christopher Young, an associate of the firm, assisted in the preparation of this article.

Reprinted with permission from the July 23, 2009 edition of the New York Law Journal © 2009 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited. Reprint information for the legal properties relative to content searches and copyright clearance is available at www.imreprints.com. For questions contact, reprintscustomerservice@incisivemedia.com or 347-227-3382.



Endnotes


[1]18 U.S.C. §3142.

[2] United States v. Jackson, 823 F.2d 4 (2d Cir. 1987); see also United States v. Berrios-Berrios, 791 F.2d 246 (2d Cir. 1986).

[3]United States v. Salerno, 481 U.S. 739, 755 (1987).

[4]The Law of Return defines Jewish persons (for purposes of the Law of Return) as those persons having a Jewish mother or grandmother, those with Jewish ancestry (having a Jewish father or grandfather), and those persons converting to Judaism and no longer being a member of another religion. See http://www.jewishvirtuallibrary.org/jsource/Judaism/whojew1.html; http://www.zionism-israel.com/dic/Hok_Hashvut.htm

[5]See http://www.mfa.gov.il/MFA/MFAArchive/1950_1959/Law+of+Return+5710-1950.htm.

[6]14 U.S.T. 1707, 1963 WL 65166, (U.S. Treaty), Dec. 5, 1963.

[7] Id.

[8]Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

[9] Lee Hockstader and Craig Whitlock, “Israeli Court Sentences Sheinbein to 24 Years.” WASHINGTON POST, October 25, 1999. See http://www.uniset.ca/naty/maternity/wp_sheinbein.htm.

[10] Article 3 of France Extradition Treaty; found at http://www.internationalextradition.com/france_n.htm.

[11] Article 7 of Germany Extradition Treaty, found at http://www.internationalextradition.com/germany_bi.htm; Article VII of Brazil Extradition Treaty; found at http://www.internationalextradition.com/brazil_bi.htm.

[12] Nigel Duara, “Jewish Groups Object to Federal Claim in Iowa Case,” CHICAGO TRIBUNE, Jan. 13, 2009. Article may be found at http://archives.chicagotribune.com/2009/jan/13/news/chi-ap-ia-jewishextradition.



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