« "Controversy Follows New Execution Drug" | Main | "More Black Men Now in Prison System than Were Enslaved" »

April 1, 2011

Another extraordinary sentencing opinion from Judge Jack Weinstein in multi-defendant crack case

A number of helpful readers have made sure that I did not miss yet another extraordinary sentencing opinion from the desk of US District Judge Jack Weinstein. The opinion in United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011) (available for download below), runs over 125 pages and here are excerpts from the conclusion (with cites omitted):

Several of the sentences in this case, imposed only because of statutory minima, are disproportionate to the crimes committed and the backgrounds of the defendants.  Their excess causes particular concern when applied to youthful defendants.  That concern is multiplied by their imposition upon young defendants subject to abuse, poverty, drug and alcohol addiction, unemployment, illiteracy, and learning disability, largely attributable to their backgrounds.

Had the defendants been raised by cohesive, adequate families, most of the difficulties they encountered would probably never have come to pass.  Well-resourced, attentive parents would have had the knowledge, ability, and insight to protect their children from many of the difficulties that befell these defendants in their youth, to obtain assistance to deal with their psychological and physical problems, and to obtain crucial opportunities for education, work, and personal growth.  Even those with learning disabilities would likely have been provided available resources to overcome their impairments at public expense. That the defendants were born into circumstances without such support is at the center of this tragedy.

As part of defendants‘ sentences, it has been ordered that every reasonable effort be made to provide counseling, drug and alcohol treatment, gambling rehabilitation, anger management therapy, education, and job training while defendants are incarcerated and during supervised release.

Considering the limited resources devoted to such rehabilitative measures, however, it is by no means clear that these aids will be effectively provided.  When the defendants are released from prison, they will probably have to return to all of the problems that led them to engage in crime.  Whatever tenuous connection they retain to the lawful, supportive world will likely be diminished after years of forced separation in prison.  Incarceration will make entry into the job market more difficult.  Remaining will be the root problems that have largely brought them to this pass: poverty; dysfunctional families; mental and physical problems; legal and de facto housing segregation; segregated and inferior schools; and an economy that appears to have little need or concern for low- and semi-skilled workers.  Such individuals constitute a permanent underclass with almost no opportunity to achieve economic stability, let alone the American dream of upward mobility.

These problems are concentrated among low-income African Americans, but they affect the country as a whole.  Our rates of imprisonment, income inequality, and unemployment are either the highest or among the highest of the world's advanced economies, while our rates of food security and life expectancy are among the lowest.

Significant reforms are needed in our sentencing regime.  The Fairness in Sentencing Act of 2010 reduced the dubious 100:1 powder/crack ratio to a 17.8:1 ratio.  It did nothing to remove the sentencing regime's dependence on arbitrary drug quantities — not just with regard to crack cocaine but other drugs as well — that bear little relationship to the harm a defendant has done to society or to the danger of his inflicting further harm.  Harsh, disproportionate mandatory sentences impose grave costs not only on the punished but on the moral credibility upon which our system of criminal justice depends.

Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster.... Mandatory minimum sentencing provisions, leaving no alternative but lengthy incarceration, prevent the exercise of this fundamental judicial duty.  Such laws are ― overly blunt instruments, bringing undue focus upon factors (such as drug quantities) to the exclusion of other important considerations, including role in the offense, use of guns and violence, criminal history, risk of recidivism, and many personal characteristics of an individual defendant.  It is difficult to conceive of a system of mandatory minimum sentences that could effectively anticipate and provide for such factors.

For nonviolent, low-level drug crimes, the goals of incarceration — general and specific deterrence, incapacitation, retribution, and rehabilitation — could in most cases be achieved with limited incarceration, through a system of intense supervised release utilizing home visits; meetings with parole officers; a combination of counseling, drug and alcohol treatment, education, job training, and job placement; and electronic monitoring to prevent flight, promote positive choices, and deter and detect incipient crime. Such a regime would likely be more effective in reducing crime and much less costly than imprisonment.  Given discouraging economic, social, and psychological conditions, it seems doubtful that the long sentences of incarceration imposed will appreciably reduce crime.

Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape.  Otherwise, its vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty.  These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation.  Even now, they are capable of useful lives, lived lawfully.

Download U.S._v._Bannister_Statement_of_Reasons_FINAL

April 1, 2011 at 09:54 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Another extraordinary sentencing opinion from Judge Jack Weinstein in multi-defendant crack case:


Well, there's good news and not so good news.

The good news is that he's got a boatload of energy for a man of his age.

The not so good news is that it takes only so much energy to copy NACDL press releases.

Posted by: Bill Otis | Apr 1, 2011 10:58:33 AM

With all due respect to the Honorable Judge Weinstein, this is more of a public policy statement than it is a sentencing order. The people, through their elected representatives support stiffer sentences. It is not a coincidence that the crime rate in our nation has dropped dramatically over the past few decades as we stopped the revolving door by incarcerating criminals for longer periods of time.
Not present in the court room were the hundreds or more people who destroyed themselves on the poison provided by these defendants. Also not present were the tens of thousands of people who had it just as bad if not worse than these defendants and yet chose to obey the law.

Posted by: Dennis Skayhan A.D.A. | Apr 1, 2011 10:59:15 AM

This judge is unusual...Not only is he smart, knows the law, but understands people and what should be done....Most are just spineless dweebs that hug the guidelines like a pacifier...

This judge should be in charge of the USSC...Then we could move forward....Takes a person that is strong and comfortable within themselves, to write a brief like this....

Posted by: Josh | Apr 1, 2011 11:01:10 AM

A loon of a judge with a history of activism. Seems like he did a lot of cutting and pasting from liberal sites. Maybe his docket is not that full, but according to Patrick Leahy there's a judicial emergency in nearly every circuit. maybe writing 100 plus pages of useless diatribes are the reason.

Posted by: DeanO | Apr 1, 2011 1:00:35 PM

From my perspective, Judge Weinstein is simply stating the truth. When you take a step back and look at our system, without worrying about how and why we got here or who's at fault, what you see is barbarism. He writes for 125 pages because he is making the point that he won't rubber-stamp the barbarism.

Forty-two people were executed in the conventional sense in the US last year, but in reality 2.4 MILLION healthy, talented, thoughtful people were partially executed by having their lives stolen away through the slow torture of imprisonment. Why? So that several private prison corporations could continue to increase their profits, 150,000 prison guards could continue to earn $130,000/year, and a couple thousand politicians could get re-elected.

"Otherwise, [the law's] vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty." Exactly, but the reason that redemption and deterrence have become a euphemism for cruelty is in the end due to greed. Cruel, inhuman sentences are the pathway to profits, campaign contributions, and re-election. Longer sentences across the board are the stated goal of the prison lobby and guards unions. The underclass that Judge Weinstein describes are simply the raw material that feeds their machine.

The crack/powder disparity and the removal of judicial discretion are only the most obvious displays of hypocrisy created by this relentless push for longer sentences. It doesn't matter what the excuse is: crack, terrorism, child pornography, child molestation, spousal abuse, anything that is morally repugnant or scary. The prison guard unions and prison lobbies will jump all over any opportunity to throw another bill in front of a legislature to drastically increase sentences for any given category of crime while eliminating paths by which judges may downwardly depart from it.

In California, for example, we recently had the death of a young girl by a multiple DUI offender on a motorcycle, and the prison guards immediately had one of the reps in their pocket throw a bill in front of the assembly that would have imposed a MANDATORY one-year prison sentence on any third DUI. In the end, even that was too much for the legislature to stomach so it didn't ultimately pass, but time and again that has been the pattern. A cute, innocent young girl gets molested: now you get 20 to life for child molestation. A cute innocent woman gets beaten to death by her husband, now you get as long a sentence for domestic battery as you used get for manslaughter.

I won't match Judge Weinstein's 125 pages in the length of this comment, but I share his sense of impotence and incredulity at a nation that through the totality of its policies has demonized, dehumanized and given up on an entire underclass of it its citizens. The sad reality is that our country at this point has more in common with a third-world kleptocracy like Russia than it does with civilized country in Europe or Asia. Even Brazil, with all its faults, has surpassed us in terms of the core values that we claim to represent.

The upshot is that Judge Weinstein must do his duty to uphold the rule of law within a system that has become corrupt and abhorrent. One way out, which I am sure he has considered, would be to resign and move to Canada. The other is to keep trying to do what is in his power and within the constraints of his position not to cooperate with the injustices that he now finds himself aiding and abetting. Hence the 125-page opinion. I am sorry for him, and I am sorry for us all as on a daily basis we face living in what we have let this nation become.

Posted by: James | Apr 1, 2011 6:10:03 PM

Long live Judge Weinstein!!! Es lebe die Freiheit; es lebe der Wein!

Posted by: anon14 | Apr 2, 2011 1:33:17 AM


Posted by: Reserve Currency | Apr 2, 2011 2:28:01 AM

Judge Jack Weinstein definitely seems to like the attention he gets..

Posted by: Was Hilft Gegen Cellulite | Apr 2, 2011 6:35:10 AM

I don't understand statements like the sentences in several cases are disproportionate and that the mandatory minimums "leave no alternative" but lengthy incarceration.

Seems to me that Graham v Florida makes it absolutely clear that the final responsibility for interpreting the Constitution lies with the judiciary and if Judge Weinstein believes that a mandatory minimum sentence results in a disproportionate sentence (actually grossly disproportionate) then he can refuse to impose the mandatory sentence. Judges Webb, Craig and Fullwood in NC have all exercised their judicial prerogative to declare an habitual felon sentence unconstitutional.

Why do these judges complain about how excessively long sentences are and then do nothing about it?
And in anticipation of comments that judges are intruding on the province of the legislature, my response is that over the last 25 years legislators have used micromanaging the criminal sentencing system and voting for extraordinarily long sentences for nonviolent offenses mainly out of a desire to garner votes.
Seems to me that rather than the judiciary intruding on the province of the legislature, the opposite is true.


Posted by: bruce cunningham | Apr 2, 2011 8:28:35 AM


So long as judges were seen to be doing a good job managing criminal sentences it made sense to let them do so. That choice was originally made by the legislature and the legislature was free to change its collective mind as soon as that faith was lost.

if judges had been believed to be doing a good job then there wouldn't have been a crack available for any sort of political wedge.

Posted by: Soronel Haetir | Apr 2, 2011 9:57:08 AM

man you said a mouth full there soronel!

"So long as judges were seen to be doing a good job managing criminal sentences it made sense to let them do so. That choice was originally made by the legislature and the legislature was free to change its collective mind as soon as that faith was lost."

Of course the govt might also want to remember that WE THE PEOPLE can also change OUR MINDS concerning the job THEY ARE DOING. Or in the last few decades FAILED TO DO!

Posted by: rodsmith | Apr 2, 2011 4:00:24 PM

Soronel, with all due respect, your statement strikes me as only partly true. Yes, there was a concern of sentence disparity in the enactment of sentencing grids in the 80's and 90's. But, there was also a component that legislators began to realize that there was political hay to be made by being tougher on crime than one's opponent.

Out of curiosity, when did you start practicing criminal law? I have seen a huge shift in the balance of power between the legislative branch and judicial branch.since the early 70's. The legislative branch is driven solely by political considerations. Unfortunately, due to popular election of judges, more and more the decisions of the judicial branch are driven by political considerations, in my opinion.



Posted by: bruce cunningham | Apr 2, 2011 9:32:59 PM


I am not nor have ever been a lawyer, criminal or otherwise. I am amazed that you would think I am or were. I wonder whether I should take that as some form of compliment?

I would have thought the rather extreme nature of my desired policies would have cast grave doubt on my being a member of the guild given that they are somewhere between SC and Bill Otis. I don't think that either Bill Otis or Kent Scheidegger argue that executing most felons would be a good idea, for example.

Posted by: Soronel Haetir | Apr 3, 2011 9:36:50 AM

Soronel --

"I wonder whether I should take that as some form of compliment?"


"I don't think that either Bill Otis or Kent Scheidegger argue that executing most felons would be a good idea, for example."

Correct. Indeed, neither Kent nor I takes the position that anyything close to most felons should be executed. I would broaden the categories now allowed (by, for example, adopting the dissenting opinion in Kennedy v. Louisiana), but execution is the exercise of state power at its most fearsome, and thus needs to be carefully constrained. At the moment, however, it is in my opinion too constrained.

Posted by: Bill Otis | Apr 3, 2011 2:13:18 PM

Where does the judge live? I want to condemn the homes of his neighbors on both sides. Open a halfway house for the drug dealers he released and to provide "every reasonable effort ... to provide counseling, drug and alcohol treatment, gambling rehabilitation, anger management therapy, education, and job training." I can have 8 unrelated people living in each without a zoning hearing. Bring it home to the criminal lover. Stop the dumping of toxic criminals onto minority neighborhoods. Each causes $millions in damages, but each generates a boatload of government sinecures.

Posted by: Supremacy Claus | Apr 4, 2011 2:11:07 AM

Seems like the following things happened:
1) At one point, judges like Judge Weinstein were given tremendous discretion in sentencing.

2) The people of the United States, through their democratically elected representatives, expressed and enacted into law a policy preference that Judges like Judge Weinstein have their discretion constrained, through statutory mandatory minimums (as well as through certain guidelines whose application has now been changed since 2005.) In part, this may have been because the people of the United States, through their democratically elected representatives, decided that judges like Judge Weinstein were doing a terrible job in maing sentencing decisions.

3) Judge Weinstein doesn't like it, so he decided to throw a temper tantrum.

By the way, he misses one important part of the history of the mandatory minimums for crack. Those mandatory minimums were widely supported by African-American congressmen (almost all men) in the 1980s. Which makes it seem less like Jim Crowe, and more like a simple policy decision that may or may not have been wise, but should not be tarred as racist.

Posted by: oh puhlease | Apr 4, 2011 8:41:13 AM

They were also supported by the black communities, particularly in Los Angeles. It took two decades for those people to realize that the sentences they wanted for black inner-city gang members dealing crack would probably not result in the arrest of an equal number of white men, who largely don't sell crack. Perhaps the difference in crack and powder cocaine is insignificant, but the effect that crack had on the communities affected was greatly disparate, and those black communities were crying out for help.

The lesson is that we have no cultural memory.

Posted by: Bill B. | Apr 4, 2011 2:30:25 PM

I like what you have said,it is really helpful to me,thanks!

Posted by: Big pony | Apr 11, 2011 5:59:54 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB