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April 5, 2008

Judge Weinstein's magnum opus on jury rights

As noted in this recent post, famed EDNY Judge Jack Weinstein this week found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Judge Weinstein's full opinion in US v. Polizzi, No. No. 06-CR-22 (EDNY April 1, 2008) is available here, and it runs a total of 288(!) pages (though the last 50 are detailed appendices).  Here is how this amazing work of judicial exposition concludes:

A. Constitutionality of Statute

Defendant’s motion to declare the statute unconstitutional as written, charged, and applied is denied because of ruling authority. See Part III.A, supra.  Upon appeal, constitutionality and the language of the statute should be reconsidered for the reasons stated in Part III.A, supra.  The issue of unconstitutionality applies to both the receiving and possessing counts. Id. If the statute is ruled unconstitutional, the case should be dismissed.

B. New Trial as to Counts One Through Twelve

For the reasons stated in Part IV, supra - - failure to exercise the court’s discretion to notify the jury of the mandatory minimum sentence - - the verdict is set aside on Counts One through Twelve, charging receiving child pornography. A new trial on those counts is granted, unless the statute as to those counts in declared unconstitutional on appeal.

April 5, 2008 at 10:06 AM | Permalink


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I don't think Judge Weinstein is right in his 8th Amendment analysis. I've always thought "cruel and unusual" was a term of art, not a bifurcated conjunctive test requiring a court to find a punishment is both cruel and also unusual. Cruelty alone should suffice to violate the 8th Amendment. "Cruel and unusual" is just a descriptive phrase. As he points out, unusuality is negated merely by the punishment being inflicted more frequently. Having one's testicles dipped in sulfuric acid while having a porcupine thrust into one's back is unusual, and certainly cruel, and in violation of the 8th Amendment. But if it becomes a common punishment, it doesn't cease to violate the 8th Amendment merely because it's no longer "unusual". The 8th Amendment does not require a finding of "cruel" and a finding of "unusual". If it did, then the government could get away with the most horrific punishments merely by inflicting them frequently (thus defeating any claim the punishment is "unusual" for 8th Amendment purposes).

I know of no Supreme Court case that analyzed the 8th Amendment on a bifurcated analysis of both the "cruel" and "unusual" nature of a punishment. "Cruel and unusual" sets for a single concept, not two requirements of unconstitutionality.

Posted by: bruce | Apr 6, 2008 3:37:28 AM

Bruce, in at least one opinion, Justice Scalia has written that the Eighth Amendment is a conjunctive test. In addition, more than a few state constitutions are written is the disjunctive "cruel or unusual," which I think provides further indirect textualist support for the kind of analysis Judge Weinstein is doing here.

Posted by: Doug B. | Apr 6, 2008 8:23:40 AM

Just out of curiosity, do you know what case it is where Scalia said that? I wonder if he analyzed it or just presumed it was conjunctive because of the word "and"? I think Scalia is wrong. In my opinion, the framers intended a single concept (maybe 'unusually cruel' would be a better way to say it). If it were a two-step analysis, the "unusual" element could always be defeated by making the punishment common. Surely the framers didn't intend to allow cruel, horrendous, evil, inhuman, torturous, or disproportionately unfair punishments to be inflicted merely because said punishments are common (like the quote cited by Judge Weinstein (page 78), "[They] only have to repeat their excessive punishments so frequently that they become 'usual' and the [8th Amendment] does not apply to them!"). If everyone got 20 years imprisonment for driving over the speed limit, it would still violate the 8th Amendment no matter how usual such a conviction and sentence might be.

I don't think a textualist analysis precludes a finding that the phrase "A and B" describes a single concept, rather than a two-part test.

Posted by: bruce | Apr 6, 2008 12:23:42 PM

Doug. Thanks for publishing this opinion. Someone else was circulating it on Friday or Thursday and I had just finished reading it today when it you put out this article. The historical analysis of the 6th is superb. On the 8th Amendment I agree with Bruce but I think that this year's 8th Amendment cases might show us where the Sup Ct comes down on the conjunctive. But I would go further and state that under the Sixth Amendment the jury should be instructed to conclude whether a five year minimum was cruel and unusual under the facts. However, the jury may be more inclined to acquit by merely receiving the instruction that the judge believes that are entitled to under the Sixth. I have not gotten to the appendixes to the opinion as yet.

I have another observation regarding Scalia 'originatist' views and then analysing what was fair, and just and permissible in England at the time our Framers drafted our constitution. We should not forget that this was a Revolution. We would not and did not fight to throw off the English yoke to merely mimic the transgressions and tyrannies we were throwing off our necks.

Posted by: M.P.B. | Apr 6, 2008 7:40:49 PM

MPB: You bring up an interesting question... whether a particular sentence (or minimum sentence) for a particular crime is a question of law or a question of fact.

Whatever one's views are on originalism, I think the framers intended for the meaning of "cruel and unusual" to change over time and reflect the mores of American citizens at the time a particular punishment is inflicted. Looking to see what punishments were okay and which were not at the time of the framers is NOT the way they intended for the 8th Amendment to be applied. The original intent was not to use the original meaning of "cruel and unusual punishment" but rather for that meaning to be change over time. The framers were smart enough to not want to lock us into certain methods of punishment. While looking to the understanding at the time of the framing is a good way to resolve constitutional questions, it is not appropriate for an 8th Amendment analysis.

Speaking about changing meaning over time, I also think the framers were intelligent enough to know that firearms would become more powerful, more accurate, and more reliable as time passed. Yet they never restricted the right to bear arms based on such knowledge. I firmly believe that it was the framers' intent that we be permitted to own, possess, and bear fully automatic machine guns. Anyone who suggests the right to bear arms only applies to guns that were commonly used at the time of the framers insults the intelligence of those who wrote the Constitution. I also don't see where "arms" is restricted to firearms. Firearms are a subset of arms, i.e. weapons of offense or defense. As the Second Amendment stands, we should have the right to possess nuclear weapons, anthrax, VX nerve gas, and any other weapon we so desire to keep in our garage and play with on the weekend, with strict liability for any damage/harm that results from their misuse. I do think the Second Amendment should be amended to add a nuclear, chemical, and biological exception to the right to bear arms. But that's the way it should be handled. Without such an amendment, the right to bear arms should be absolute.

Posted by: bruce | Apr 6, 2008 11:41:11 PM

Hmmnn. Now that the Second Amendment is in play-- in this discussion-- I agree with Bruce. Clearly a muzzle loader was less of a firearm than a cannon, or a shot of fire from one boat to another, or a tribe of Iroquois armed with flaming arows. Could the Framers foresee Gatling (Civil War or post Civil War) or flamethrowers (as we had in WWII)? Maybe, and maybe not, but the guys who went off to war in the Civil War without guns probably thought that a well armed populace was a good idea.

Getting back to the Eighth Amendment. I think that it is pretty cruel and very unusual to lock somebody up for viewing some image on a computer in one's private home. Speaking of holmes (sic), Justice Holmes is said to have possessed a fine collection of pornography. Would we have locked him up under the case of Miller or Ferber? We believe that we have perfected the notion of a Republic on Earth. The Greeks and Romans are laughing. But circling around to that Sixth Amendment, it seems right and just that a jury gets to know what the consequences are of a finding of guilt which they render upon a fellow citizen. I am always impressed by the comments of others on this blog.

Posted by: M.P.B. | Apr 7, 2008 2:41:11 AM

I agree that no legitimate government, particularly one subject to our Constitution, should be permitted to imprison someone for merely looking at or possessing a picture, no matter how objectively gross the picture is. Making it illegal to possess a picture of a crime scene (which is what child porn typically is) is so odd and so unamerican that it deserves condemnation. Particularly when we're only prohibited from possessing pictures of one type of crime scene. I can possess all the pictures of murder scenes (horrendously mutilated dead bodies), scenes of genocide (Holocaust pictures are just fine), scenes of robberies, rapes, assaults, and drugs. But possessing a picture of child abuse is treated as a more serious crime than the actual child abuse seen in the photograph! It's insane.

Go after the people abusing the children depicted in kiddie porn. By all means. Of course, not all kiddie porn necessarily depicts abuse since a lot of it is probably just nude children (I have no first hand knowledge but if kiddie porn is anything like adult porn, simple nude shots are the plurality). Nobody should be put in prison for innocent conduct which harms nobody due to a "market theory" of crime.

I think the framers were intelligent enough to foresee the Gatling gun. Multi-shot weapons had been around for hundreds of years. Da Vinci drew plans for a multi-shot arrow/crossbow. The Puckle Gun was invented in 1718 and fired 9 RPM. To say machine guns and automatic firearms in general were beyond the imagination of the framers is to imply the framers were morons. While the technology did not yet exist to manufacture a working Gatling Gun or Maxim machine gun, such technology was not too far off, and the concept was certainly in existence. As such, it's ignorant and insulting to assume that such weapons were not intended to be included in the right to bear arms. The framers could have limited the right to "minor arms" or "single-shot arms" or "small arms" if they did not intend for it to include all possible weapons. Quite the contrary, it was intneded that "arms" expressly included military weapons.

Posted by: bruce | Apr 7, 2008 9:31:44 AM

You have just given me more ammunition on my Second Amendment arguments in favor of the right to bear arms. I would go so far as to arm the bears.

Posted by: M.P.B. | Apr 7, 2008 11:30:47 AM

Grizzly bears with automatic weapons strapped to their heads would probably draw a line somewhere, though be pretty cool at the same time.

Posted by: bruce | Apr 7, 2008 2:48:06 PM

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