Friday, April 1, 2011

Good and Mad Reading for the Weekend

This 125-page statement of reasons in the case of U.S. v. Bannister is the latest installment in Judge Jack Weinstein's proud tradition of abnormally long, beautifully-written, heart-stirring opinions that question, criticize, bemoan, mourn, skewer, and disembowel our absurdly harsh mandatory sentencing system.

The opinion is a worthwhile read because it could double as a primer on everything (or almost everything) that's wrong with our criminal justice system.

It's a drug case involving a crack conspiracy that took place in the Bedford-Stuyvesant neighborhood of New York City.  Judge Weinstein spends over 30 pages talking about this famous neighborhood and its conditions of poverty, high crime, and low economic opportunity for residents and the defendants who lived there.  He even includes a photo!

How's that for considering the history and circumstances of the offender at sentencing?

Judge Weinstein then spends over 30 pages going over America's sentencing policies -- how they've turned us into the world's leading jailer, don't reduce crime, create racial disparities, and cost a fortune.  It's not until page 93 that Judge Weinstein starts discussing how he's going to sentence the defendants.

At sentencing, Judge Weinstein was required to give the defendants a sentence that was "sufficient but not greater than necessary" to comply with four purposes of punishment, including retribution.  Retribution, in non-legalese, means the time must fit the crime.  Here's how Judge Weinstein handled that prong of his sentencing decision:
In moral terms, those working in the drug trade are primarily responsible not for drug abuse but for the trade itself and the violence and extortion attendant to it.  Those who engage in violence and extortion should be punished in accordance with the danger their actions represent to the community.  Street-level dealers are at least indirectly complicit in such acts; this commerce cannot continue without people serving their function.  But it cannot be assumed that such low-level players are morally in the same category as murderers, assailants, and major purveyors of monetary frauds.  They may be little more than cogs, easily replaced.  To fix their punishment under mandatory minimum sentences, not on the basis of their limited roles and acts but on the quantities of drugs they sell by chance or in cooperation with others of their ilk, ill accords with a fair sense of retribution.  
One of the fears about giving judges sentencing discretion is that they'll misuse it.  To be fair, that's always a possibility and sometimes a reality.  Fear of judicial discretion is grounded in a mistrust of judges -- a belief that they're not thoughtful, that they're ideological, that they're soft on crime.

But a 125-page opinion giving the reasons for one particular sentence is not the work of a judge who isn't thinking, isn't considering all the facts, doesn't care about public safety, and isn't using his considerable legal, judicial, and human experience to make the best decision he can. This is what good judging is about. People may disagree with Judge Weinstein's conclusions, but they can't call him a bad judge.  (And, for the record, his sentencing decisions in this case seem well-reasoned to me.)

Here's some food for thought:  how much fairer might sentences be if every judge gave every case this kind of thorough and thoughtful treatment, and then got to give an appropriate sentence instead of a one-size-fits-all mandatory minimum?

-- Stowe

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