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June 15, 2021

In memoriam: mourning the passing of Judge Jack Weinstein

24lawyers-superJumboUS District Judge Jack Weinstein was nominated to be a federal judge a year before I was born, but twenty-six years later, the very first case I worked on during my first judicial clerkship involved an appeal of Judge Weinstein's remarkable (and yet-still-run-of-the-mill) sentencing opinion in US v. Ekwunoh, 813 F. Supp. 168 (EDNY 1993).  I am certain that the fortuity of my first real case during my first real job involving the intricacies and injustices of federal sentencing played no small role in how my career thereafter went forward.

This personal story is my preamble to a post meant to honor Judge Weinstein for his contributions to all areas of the law upon news today of his passing at age 99.  I am pleased to see that this New York Times article about his life includes an extended discussion of his sentencing practices:

Judge Weinstein often said that the individual before the courts was their highest responsibility, a concern he made obvious in criminal cases. As a senior judge concerned about wrongful detentions and other abuses of defendants’ rights, he took on nearly 500 backlogged habeas corpus cases, and read them all. When sentencing criminal defendants, he sat at a table with them instead of looking down from a bench.  In court, he almost always wore a business suit instead of robes.

Judge Weinstein viewed federal sentencing guidelines as a betrayal of the moral imperative that the punishment should fit the crime.  When he took senior status and could refuse cases, he stopped hearing minor drug cases. “I have become increasingly despondent over the cruelties and self-defeating character of our war on drugs,” he wrote in a Times opinion essay in 1993, noting that 60 percent of federal prison inmates were drug offenders.

In a 2004 law review article, speaking of “grotesque over-sentencing” required by drug laws, Judge Weinstein wrote that if judges left the bench to avoid enforcing unjust laws, they risked being replaced by “government puppets.”  The legal system, he said, could and should accommodate judicial protest.  He later resisted the federal five-year mandatory minimum sentence for downloading child pornography, throwing out several convictions to avert what he called “an unnecessarily harsh and cruel sentence.”

There is, of course, so much more to be said about Judge Weinstein's contribution to the law and practice of sentencing.  Fortunately, as noted in this prior post, the Federal Sentencing Reporter was able to produce earlier this year an issue entirely devoted to "Weinstein on Sentencing" to celebrate his many contributions to federal sentencing law, policy and practice.

FSR was fortunate to get two of Judge Weinstein's former clerks, Carolin Guentert and Ryan Gerber, to organize this great issue.  They did an extraordinary job gathering an array of perspectives in an issue that includes a considerable number of original articles under the heading "Celebrating Judge Weinstein" as well as excerpts from Judge Weinstein's past opinions and articles under the heading "Weinstein In His Own Words."

On a day in which tradition dictates saying "May his memory be a blessing," I highly encourage everyone to check out this full FSR issue in order to help burnish great memories of the great sentencing work of this great man.

June 15, 2021 at 05:13 PM | Permalink


I have a favorite opinion of Judge Jack Weinstein's that made quite an impression on me. A New York police officer had stopped and frisked (pat searched) a black man because he had a construction utility knife clipped to his pants pocket. The cop said that was his probable cause to stop and frisk the man. During the pat search, the officer located a pistol, and the man was facing a Federal charge of being a felon in possession of a firearm. Judge Weinstein suppressed the evidence and dismissed the charge. He found that the protruding utility knife was not an illegal "gravity knife", but was a type of utility knife commonly used in the construction trades. He and his law clerk had contacted Home Depot in New York and learned that there stores alone had sold like 24,000 such utility knives in the past year. Judge Weinstein's analogy in his opinion was to a cell phone being used by a drug dealer, as probable cause to search the drug dealer. Sure, drug dealers use cell phones, but so does everyone else in America, so the police cannot just stop and pat search everyone carrying a cell phone, in hopes of finding some drugs. He held that the presence of the utility knife clipped to a pocket was only evidence that the man might work in the construction trades, and could not form probable cause to stop and pat him down, in hopes of finding the illegal gun that turned up. In Judge Weinstein's courtroom, the law was the law, and it shielded the guilty as well as the innocent, when the police violated the law too.

Posted by: Jim Gormley | Jun 17, 2021 12:11:30 AM

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