Where the Cold Record Ends,|a Judge’s Compassion Begins

     BROOKLYN, N.Y. (CN) – Senior U.S. District Judge Jack Weinstein has spent his career reimagining how due process looks and feels. The process has won the 90-year-old jurist a reputation for considering the human condition where rigid sentencing guidelines fail.



     “We judges don’t know what’s going on in the real world,” Weinstein told Courthouse News, from his 14th story chambers in Brooklyn. “You’re really dealing with human beings here, and that’s a really difficult kind of problem.”
     Nominated as a federal judge in 1967, Weinstein decided early on to investigate school desegregation cases both on and off the bench.
     “I used to go into the school districts and look around,” Weinstein recalled. “Sometimes seeing subtle interactions, you get a sense of what’s going on that you can’t get from cold record.”
     Last May, Weinstein visited a housing project in the Bedford-Stuyvesant neighborhood of Brooklyn, which was home to eight gang members he had to sentence. The judge seemed remorseful in a 133-page ruling that sentenced those men to minimum sentences of several years, still far shorter than what prosecutors demanded.
     His opinion in that case outlined the historical, economic and racial factors that contribute to the war on drugs, which he condemned as “self-defeating” in a 1993 New York Times editorial.
     Even today, Weinstein said that he steps down from the bench during sentencing to sit with the defendants and their families.
     “I like to hear from the defendant himself when I talk to the defendant fairly deeply about background and education and employment and romances,” he said. “So I get a better feel for the defendant as a person across the table.”
     During this process, he also gauges the family’s reactions to “get a better feel for the situation.”
     He has all of the proceedings videotaped to memorialize the “subtle factors” that enter his decision, which get left out of the official transcripts.
     “If the Court of Appeals has a doubt about how these subtle factors enter into the matter of sentencing, they can look at the video, and they can see what the family’s reaction was and what the defendant’s reaction was,” Weinstein said.
     The videos can also prevent a defendant from claiming in subsequent habeas petitions that he did not understand the judge’s instructions, he added.
     Weinstein says the 2nd Circuit has never asked to see one these videos, which he keeps in a sealed drawer.
     If he grants leniency to a defendant, Weinstein usually files a “statement of reasons” to justify his decision for prosecutors.
     Over the past year, the vast majority of the “Statements of Reasons” filed on the Eastern District of New York docket have borne Weinstein’s signature.
     In one March 6 statement, Weinstein described how 44-year-old Zenon Guzman Vargas supported his family for decades, before getting busted for dealing cocaine.
     “Mr. Guzman’s father died when he was young, and he had to leave school and go to work to help support his family,” Weinstein wrote. “He entered the United States illegally in 1993 for economic reasons and to obtain medication for his mother, who was ill. Before being arrested for the present offense, he held a variety of jobs, working principally in different automobile body shops in New York and Delaware. At present, he has been imprisoned for nearly four and a half years.”
     That was enough for Weinstein, who opted for a sentence of time served.
     A staunch opponent of federal guidelines for drug offenses, Weinstein echoed a recent New York Times op-ed by “The New Jim Crow” author Michelle Alexander that said drug offenders could “crash the judicial system” by refusing to accept plea deals.
     “It would break the system,” Weinstein said. “That’s always been true. We don’t have enough judges to try all the cases. The defendants generally prefer, sensibly, to get a lighter sentence and get it over with rather than to sit in prison awaiting trial for five years.”
     Weinstein is also in the vanguard for his opposition to minimum sentences for child-pornography possession, which he noted can sometimes outlast sentences for sexually abusing children.
     Weinstein brought this issue to the national spotlight in the case against Pietro Polouizzi, who owned more than 5,000 explicit pictures of children.
     The judge’s instructions to the jury about the minimum sentence eventually led to a new trial in which they dropped the more serious counts of “receipt” of child pornography.
     Polouizzi served the one-year sentence for the possession charges.
     After widespread press coverage of the case, letters poured into Weinstein’s chambers for several months, and he has continued to file them into the docket of the case over the last three months.
     In the most recent letter, a mother from Texas told Weinstein how her son was sentenced to 84 months in prison for viewing child pornography, a habit the son picked up in college after his father committed suicide.
     As with drug abuse, Weinstein favors psychological treatment over incarceration in child-pornography cases. He said studies show that many other federal judges are coming around to his position.
     Though most come from scholarly journals, one citation forwarded by his clerk included a Boston Globe article that found federal judges have sentenced below guidelines in 43 percent of child-pornography cases.
     For Weinstein, politicians who emphasize “tough” sentencing guidelines are often out of touch with their constituents.
     “In many respects, I don’t think that politics has caught up with the sociology of the country,” Weinstein said. “We are a much more open, free, egalitarian country in many respects, even though economically, it’s stratified. And a great many people didn’t know the cost of incarcerating that many people.”
     He explained that the 2005 Supreme Court decision in U.S. v. Booker gave judges the option to stray from the federal guidelines imposed by legislators, though mandatory minimums still apply.
     Fittingly, on the morning he spoke with Courthouse News, Weinstein gave a merciful sentence to Lin Feng Xu, who admitted to smuggling elephant ivory into New York from China.
     At the hearing, Weinstein said that Xu and his wife did not pose a threat because they had “generally good character,” and were coerced by Xu’s father to commit the crime.
     “The problem is general deterrence,” Weinstein said, according to the transcript. “Will people be deterred from committing what is a serious crime and that is leading to the elimination of elephants all over the world?”
     Finding that the “father is really the culprit,” Weinstein sentenced Xu to time served and four years of supervised release.
     The last words of the transcript record the defense attorney saying, “Thank you, Your Honor. God bless you.”
     Weinstein acknowledged that prosecutors generally have been less effusive, and other judges “have not embraced” his immersive approach to sentencing.
     “It’s my failure,” he said wryly. “I have to go out and get a real feel.”
     Weinstein insists he is not proselytizing.
     “I’m sure I don’t do it better than anybody else,” Weinstein said. “It’s a very difficult, wrenching experience.”

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