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July 30, 2016

Judge Jack Weinstein authors mega-opinion threatening to find sentence unconstitutional if offender not placed in certain prison(!?!?)

A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein.  The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:

A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.

The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.

Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.

The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.

The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.

“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”

Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.

UPDATE:  A helpful reader sent me a copy of the full opinion in US v. DW for posting here:  Download US v DW

July 30, 2016 at 10:29 AM | Permalink


The opinion is located here:
2016 WL 4053173

Posted by: Dave Sidhu | Jul 30, 2016 12:09:43 PM

Kudos to Judge Weinstein!
Don't know if he can actually force the BOP to accept his recommendation for FCI Devens (unless one is rich or famous you end up where the big BOP computer in Texas decides you go). But it's nice knowing that at least there's a judge who has the common sense and cojones to say "this guy has a problem, he needs to be in a facility that has treatment for his problem, he's been the victim of physical abuse in prison before, let's not see it happen again.".
Got to hand it to Judge Weinstein, at least he stands up for what he believes in.

Posted by: kat | Jul 30, 2016 12:12:53 PM

The case is discussed here:


And, a link to the opinion:


The amount of verbiage coming out of those chambers is a bit amazing.

Posted by: Joe | Jul 30, 2016 5:06:45 PM

Did I miss something? I mean about the part where the prison rapists get tried and convicted, then put on the sex offender registry themselves?

Posted by: Eric Knight | Jul 31, 2016 11:25:54 AM

As to the basis, I suppose he could invite a 2255 (based on the constitutionality of sentence) and get jurisdiction back. (Attorney, former AFPD).

Posted by: Ian G. | Aug 1, 2016 8:33:11 AM

Judge Jack Weinstein performed wisely, thoughtfully, and cautiously in going the extra mile to select a better location for the convict. Kudos!

Posted by: Judge Chuck Wolle | Aug 1, 2016 6:29:57 PM

Off the cuff, I was about to suggest the point posted by Ian G. Once sentence is imposed, he has no jurisdiction to vary its length. But a 2255 motion arguing its conditions violated the 8A would, I would think, give him jurisdiction to enter an order modifying those conditions if they amount to cruel and unusual punishment.

Posted by: Def. Atty. | Aug 5, 2016 11:51:41 AM

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