August 11, 2005
Judge Weinstein on rehabilitation as a sentencing goal
A kind reader sent me news of a decision earlier this week by US District Judge Jack B. Weinstein in US v. Hawkins, No. 02-CR-563, 2005 WL 1869500 (EDNY Aug. 8, 2005). Of course, Judge Weinstein has long been a member of the Sentencing Judges Hall of Fame, and his latest work in Hawkins is grand opus which explores the philosophy of punishment, the meaning of rehabilitation, and the federal sentencing guidelines after Booker. Here is the opinion's opening:
The government appealed from the district court's grant of a downward departure on the grounds of extraordinary rehabilitation. The United States Court of Appeals for the Second Circuit vacated the sentence and remanded the case for findings of fact. It is the government's view that the defendant, a young mother, must be imprisoned. The court disagrees.
By a standard of clear and convincing evidence there has been extraordinary rehabilitation, both at the time of the original sentence and now. The fact that defendant engaged in further criminal activity while she was in the process of rehabilitation does not preclude a finding of extraordinary rehabilitation. See, e.g., United States v. Kane, 88 F. Supp. 2d 408, 409 (E.D.Pa. 2000) (granting downward departure for drug trafficking conviction based on defendant's extraordinary rehabilitation despite the fact that "[w]hile under supervision of Pretrial Services, he tested positive for drug use several times...").
August 11, 2005 at 09:20 AM | Permalink
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This excerpt also caught my eye as I read:
"91. The public is better protected from future criminal activity of this defendant by imposition of a sentence of probation. Such a sentence preserves the employability of this defendant, a circumstance that provides the surest protection against recidivism in this case. Were the defendant to be incarcerated, her future employability would be seriously compromised. This would not only create a financial liability on the public, it would remove the defendant from her present circumstances, where she has a unique opportunity to observe law-abiding conduct. A sentence of incarceration would, both during and after the period of imprisonment, place the defendant in her former environment where, as she aptly observed, her associates were engaged in no productive activity and in substantial antisocial conduct.
92. The maximum sentence within the Guideline range would result in a period of incapacitation of only 18 months. Subsequent to that period the defendant would pose a greater risk to the public because the chances of recidivism would probably increase."
I also notice that before the government's appeal, Judge Weinstein had adjourned sentencing for a year to give the defendant a chance to show rehabilitation. The government objected that this gave the defendant an opportunity to "build a record." Judge Weinstein replies: "That was an extraordinary statement by the government. It seems inconsistent with the general theory of rehabilitation and is certainly inconsistent with section 3553(a)."
If an unsentenced defendant isn't in custody and you want more information before sentencing, why NOT wait? In a sense, it's informal probation followed by statutory probation. Perhaps delayed sentencing should be a more common practice in cases of non-violent offenders who face at most short sentences (although this case is a bit of an odd instance of it, given the defendant's questionable behavior during her year of "informal probation").
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