All judges are concerned about fairness and consistency in sentencing. After United States v. Booker[1] rendered the Federal Sentencing Guidelines advisory, I began publishing statements of reasons for each sentence I imposed—to ensure transparency and consistency in my own sentencing.
I have reviewed the Article written by my former Law Clerks, Carolin Guentert (2016 to 2017) and Ryan Gerber (2017 to 2018). It is, in general, an accurate portrayal of my sentencing practices, as revealed by the public record, not by personal discussions with these clerks. The Article might prove helpful to other judges and to others involved in the sentencing process.
In my opinion, the Article comports with ethical rules.[2] To the extent it is required, this Foreword serves as the requisite permission—which I do not think is required—for my former Law Clerks to publish this Article.
Sentencing is undoubtedly one of the hardest tasks of a trial judge.[3] A sentencing judge must consider numerous, incommensurable factors: the gravity of the offense, future dangers posed to the community, a defendant’s personal background, the likelihood of rehabilitation, whether the sentence seems fair and just, and requirements of statutes, court decisions, and U.S. Sentencing Commission statements. In the end, the judge arrives at a number: the days, weeks, years, or decades a person will be removed from society.
For most of U.S. history, federal sentencing determinations were left to the discretion of judges.[4] But for a nearly two-decade period—from 1987 to 2005—discretion was largely curtailed by the U.S. Sentencing Guidelines (the Guidelines).[5] Now, more than a decade after United States v. Booker rendered the Guidelines advisory, what does sentencing practice look like in the federal district courts?
We know this: the Guidelines are only followed in about half of all cases nationally,[6] and, in some districts, the Guidelines sentences are imposed in only a small minority of cases.[7] The vast majority of departures from the Guidelines—nearly ninety-five percent—are below the Guidelines range.[8] We also know, based on limited information, that there are sentencing disparities among U.S. district judges, even among judges within the same district.[9]
Limited attention is paid to the question of how judges have been applying the advisory Guidelines on an individual level.[10] Booker afforded judges significantly greater discretion in sentencing; it created an increased risk of disparity in sentencing, both among different judges and within each judge’s own cases. Has sentencing become—to borrow a phrase from Judge Marvin Frankel—more, “law without order”?[11]
This Article attempts to address this question by focusing on one judge, in one district, who has been concerned with consistency in his own sentencing: Judge Jack B. Weinstein.[12] After Booker, the Judge began writing and publishing a statement of reasons (a written articulation of each sentence) for each sentence he imposed—uncommon among federal district judges[13]—aiming for transparency in his decision-making and consistency in his sentencing considerations. This Article is a first-of-its-kind attempt to systematically review an individual judge’s endeavor at maintaining internal consistency in their sentences.
Through his published opinions, the Judge has created some of his own guidelines for sentencing. Defendants, practitioners, the government, and the public have access to the corpus of sentencing opinions he has drafted—not just the cases which are analyzed in the media,[14] but also the cases that receive little attention outside of the courtroom.[15] He attempts to ensure that each person receives an individualized sentencing determination, and that comparable cases and sentencing factors are treated with some degree of consistency.
This Article says nothing of uniformity among judges. It does not address the legitimate concern that “the National Government is one sovereign and there thus ought to be some parity, from one federal courthouse to the next, in sentencing practices for violations of the same criminal laws by individuals with similar criminal records.”[16] It simply seeks to show the impact one judge has had on criminal justice by applying the now-advisory Guidelines in a way that he believes is both fair and consistent.
We focused on Judge Weinstein primarily because the authors of this Article both served as law clerks for him.[17] Because the Judge has published a statement of reasons for every sentence that he imposed since Booker, it is possible to accomplish this study by reference to the Judge’s published works. Hundreds of his sentencing opinions explicating the reasons for each sentence he imposes are publicly available.
The Judge is a vocal critic of harsh sentencing.[18] During his tenure in the Eastern District of New York, he has often found the sentencing laws as applied excessive and unjust.[19] He openly criticized the Guidelines when they were mandatory, objecting to the long periods of incarceration they required, the disproportionate adverse effect these sentences had on the community, and the lack of discretion they offered judges to take into account each defendant’s unique circumstances.[20] When the Guidelines were first adopted, he refused to preside over cases when he disagreed with the federal policies on sentencing drug offenders,[21] revised his courtroom procedures to humanize each defendant,[22] and wrote hundreds of opinions—sometimes spanning hundreds of pages[23]—highlighting systemic injustice.[24] He consistently sought to depart from mandatory sentences.[25]
Since the Guidelines became advisory, the Judge has remained flexible in his sentencing practice.[26] He has relied on the testimony and expertise of social workers, medical experts, probation officers, and family members to understand what sentence might best serve each defendant and aid in rehabilitation and integration into lawful society.[27] He has invoked alternatives to incarceration, such as pretrial or postsentence treatment programs,[28] and looked to other countries’ standards for alternative models of punishment and rehabilitation.[29] Out of the nearly 600 sentences he has imposed since 2006, approximately eighty percent have been below the Guidelines’ recommendations.[30] [31] This is to say, the Judge is a hero to some,[32] lawless to others.[33]
Judge Weinstein is not alone in resisting the injustices in the current penal system. Many federal trial judges have begun speaking out about the overuse of imprisonment and the collateral consequences of conviction. Professor Jessica Roth coined the term the “‘new’ district court activism” in a recent article on the subject and explained there is a growing number of federal district court judges—mostly appointed in the 1990s, with some notable exceptions—who have begun using sentencing to achieve reform and comment on the blatant inequality of the criminal justice system.[34]
Professor Roth compiled a list[35] of some of the federal judges who have been engaging in criminal justice reform through “hortatory” forms such as questioning practices like mass incarceration, mandatory minimums, prosecutorial overcharging, and the collateral consequences of conviction in their sentencing opinions; voicing their opposition to these practices in articles and speeches; and testifying before committee bodies to advocate for lower sentencing guidelines.[36] She concludes that the “‘new’ activist style”[37] of these judges is valuable in part because district court judges are particularly well-placed to observe social justice issues and bring them to the attention of the public:
When it comes to criminal justice issues, district court judges are, in many ways, better situated than any other type of federal judge to contribute new ideas and informed insights on how the system is working and could be improved. In a world in which the overwhelming majority of criminal cases are resolved by a guilty plea—thereby limiting any judicial involvement at all—the trial judge is still more likely than any other judge to glean meaningful information from each case and cumulatively to spot systemic issues, including those with a local twist. Because many criminal cases are never heard on appeal, trial judges are the only judges who will interact with the facts and the parties. . . . Because many trial judges are drawn from the legal community over which they preside, and frequently are alumni of the local prosecutor’s office, they are well situated to assess issues in context and speak with credibility. Thus, when a trial judge who has been on the bench many years describes a problem based on repeated encounters, the judge speaks with a special expertise that we should heed. The same is true when the judge identifies an innovation that could address the problem. Even when the judges are powerless to effect any change on their own, calling out the folly or errors of judgment of other institutional actors can shape future behavior.
It is particularly important that Article III judges, who enjoy life tenure, engage with issues affecting politically disempowered groups like criminal defendants, because no other institutional actor is likely to do so.[38]
This Article provides an overview of the factors Judge Weinstein has considered in sentencing over the past decade, and how these considerations work toward achieving consistency in his application of the Guidelines. Part I explores the concept of consistency and summarizes the history and purpose of the Guidelines and the Judge’s published views on sentencing law pre- and post-Booker. Part II discusses the procedure he developed for sentencing hearings, and the factors he has taken into account in sentencing since Booker. It focuses on the most common types of cases in which the Judge has sentenced defendants and demonstrates how he has strived to impose consistent sentences on individuals who have been convicted for similar conduct or who have had similar life experiences that led them to commit a crime. Part III discusses the Judge’s change of heart on the automatic imposition of federal supervised release terms, and its ramifications for consistency in his sentencing. The Conclusion posits that the Guidelines offer an incomplete account of relevant sentencing factors and that Judge Weinstein offers a good example of a judge attempting to mitigate harsh sentencing by consistently considering the same factors in each of his sentences.
In short, the Article attempts to show how one judge has approached sentencing, striving to treat each defendant as an individual, with justice and humanity. It is an earnest—albeit imperfect—attempt to reconcile and justify punishment within a flawed system of justice.
Entrenched in modern thinking about federal sentencing is the idea that consistency is a paramount consideration: the concept is codified in the primary sentencing statute,[39] was a basic goal of the Guidelines,[40] and has received substantial attention in academic literature.[41] The basic precept of sentencing consistency is usually captured by a simple statement: similar offenders should receive similar sentences.[42] Execution of this principle is affected by another “principle”—similar crimes should be punished similarly.[43]
Measuring consistency therefore requires: (1) determining which defendants are “similar,” and (2) whether those similar defendants are being sentenced “similarly.” The greater the number of factors that are taken into account at sentencing, the harder it becomes to measure “consistency.” As Professor Michael O’Hear explained:
The problem lies in distinguishing the warranted from the unwarranted. What factors, in other words, will be considered relevant in distinguishing among defendants at sentencing? For instance, does the fact that a defendant is a single parent with small children justify a different sentence than would be given an otherwise identically situated defendant? How about if the defendant has a drug dependency problem or a physical disability? Should it matter that the defendant pled guilty, thereby saving the government the expense of going to trial?[44]
There are several conceivable ways to quantify sentencing consistency. Consistency could be measured by reference to the now-advisory Guidelines.[45] Does a judge consistently impose sentences within the Guidelines, or do they consistently sentence above or below that range? This is a straightforward empirical question that has been answered in this Article. But as noted in the Introduction, once the lodestar in determining sentencing uniformity, a sentence within the Guidelines range is now imposed in fewer than half—49.1%—of all cases nationally.[46]
We received reports from the Sentencing Commission that provide the mean and median sentence lengths imposed nationally, in the Eastern District of New York, and by Judge Weinstein for various offenses for each year from 2006 through 2017.[47] A year-over-year review of the Judge Weinstein’s sentencing during this time period proves interesting, but ultimately inconclusive. There is seemingly a downward trend for the Judge’s sentencing means and medians.[48] In this same period, national means and medians held relatively consistent, and in the Eastern District of New York, the means remained consistent with what appears to be a trend downward in the medians over time.[49]
But we cannot responsibly draw conclusions from these numbers that meet traditional academic standards.[50] There are other limitations: first, the number of sentences issued per year in the Eastern District of New York dropped precipitously over time, and the number of sentences Judge Weinstein issued during this time period varied from as many as eighty-five in 2008 to as low as nineteen in 2016.[51] It is difficult to make direct comparisons between means and medians with the number of sentences fluctuating over time. Second, the types of offenses based on which Judge Weinstein issued sentences varied from year to year; in 2008 and 2009, two of the years with the highest mean and median sentences, the Judge sentenced a significant number people for firearms offenses (11) and racketeering and extortion (41).[52] During the three years in which Judge Weinstein had the lowest mean and median sentences, 2013 through 2015, by contrast, he sentenced one person for either racketeering or a firearms offense.[53] Finally, looking to the Guidelines does not help explain sentencing trends; in the year in which the Judge had the highest median sentence, 2017, he had the lowest percentage of sentences within the Guidelines range, 9.7%.[54] For these reasons, to the extent we rely on this data throughout the Article, it is simply to point out where Judge Weinstein’s sentencing practices seem to differ from national and local norms, not to draw statistical conclusions.[55]
Another method of quantifying consistency could be made by identifying sentencing factors, such as the ones we have instanced below, and creating a regression analysis based on the factors present in each case. An analysis of this sort could be useful, but has its limitations. As Professor O’Hear pointed out, lines would need to be drawn as to which factors to include. This sort of analysis would, in some ways, run contrary to Judge Weinstein’s sentencing practice.[56] He takes account of the whole individual, and often relies on characteristics outside of the mainstream; to name a few: physical characteristics of a defendant,[57] upcoming family responsibilities,[58] and the effect of a conviction on personal relationships.[59] Although there are many recurring themes in his sentencing decisions, a quantitative model could not capture all of them.
The primary purpose of this Article is, therefore, not to quantify the Judge’s sentencing consistency.[60] Instead, it delineates a series of norms that guide his sentencing decisions.
Long before the Supreme Court’s decision in Booker made application of the Guidelines advisory, Judge Weinstein advocated for consistent leniency in sentencing. On the federal bench since 1967, he has sentenced individuals in criminal cases through five decades of significant cultural and political shifts in views on sentencing.
The U.S. Sentencing Commission (the Commission) created the Guidelines under the Sentencing Reform Act in 1984, in order to avoid inconsistency in sentencing and to limit the exercise of judicial discretion.[61] When the Guidelines became effective in 1987,[62] the Judge initially supported them as an attempt to bring greater consistency and rationale into sentencing.[63] Particularly in some areas of the law, such as drug crimes, “[u]niformity through a national policy has at least the advantage of avoiding individual idiosyncratic views.”[64] He predicted that the Guidelines would avoid “trouble, criticism and reversal” for district court judges, given that “[m]ost [judges] find it extremely difficult to look into the eye of another human being and punish him or her severely, particularly when the family is standing by, about to suffer more than the defendant. The numerical mechanics of the new system avoids emotion.”[65]
But even early into the Guidelines’ existence, he warned that this system could only be applied fairly if the calculations “provide sufficient flexibility to permit judges to consider both the crime and the individual as a whole.”[66] Blindly applying the Guidelines would amount to injustice, because judges are “obligated to respond to the total individual before [them]. . . . Empathy enhances sound decision-making. It is a worthy value in a process that may deprive a human being of liberty.”[67]
In the early 1990s, he increasingly criticized the Guidelines. On the basis of his own experience and that of other judges in the Eastern District of New York, he concluded that the “advent of automated sentencing under the [G]uidelines” actually hindered uniformity in sentencing because the system discouraged judges from conferring with each other on sentencing matters.[68] Judges now had “fewer occasions on which to share [their] thoughts and concerns about the appropriateness of [their] sentences, and their effects on the people whom [they] are sentencing and the general public.”[69]
The Guidelines also placed disproportionate emphasis on “bad facts” about defendants, meaning judges were often unaware of aspects of the individual’s character or experience that would warrant departure from the Guidelines.[70] The new system encouraged uniformity, but only in that it mandated uniformly high incarceration terms. Conforming to such excessive sentences, he pointed out, would not reduce sentencing disparity. The system did not view “each defendant as a unique human being,” which is necessary to ensure that each person is treated fairly and proportionately.[71]
He began departing from the Guidelines for reasons not specifically set forth in the Sentencing Reform Act,[72] such as defendants being single parents,[73] having lost a child,[74] having reduced mental capacity,[75] lacking proper guidance from family members or elders,[76] suffering from an illness,[77] facing a potential loss of custody due to the offense,[78] concern over a fellow immigrant from their country of origin,[79] facing deportation,[80] being forced to commit an offense by an abusive spouse,[81] or lacking the necessary mens rea for possession of specified amounts of narcotics.[82] Reversals were not infrequent.[83]
In 1993, together with Judge Whitman Knapp of the Southern District of New York, Judge Weinstein decided that he would no longer preside over cases involving drug offenses. He found that the Guidelines—high for most crimes—were excessively high for crimes involving drugs. They favored long incarceration periods over prevention and treatment. The Judge noted that “[t]he penalties have been increased enormously, . . . without having any impact. It’s just a futile endeavor, a waste of taxpayers’ money.”[84] Like other judges did before him, he used his senior status to oppose the policies that would not afford judges the discretion to sentence more leniently, and in accordance with each defendant’s needs.[85] While “[j]udges should not shrink from unpleasant duties,” he felt that he had an obligation not to “cross[ ] the line of morality and decency.”[86]
In 1994, partly in response to such judicial opposition, Congress permitted judges to depart from Guidelines-prescribed sentences in minor drug cases through a “safety valve.”[87] The Judge resumed sentencing in drug and other cases, but until Booker was decided in 2005, he continued to speak out against the excessively high incarceration rates imposed by the Guidelines.[88] He saw it as his duty to voice his concerns,[89] because “[i]f the sentencing judge does not represent the human face of the law, no one will.”[90]
After the Supreme Court’s 2005 decision in United States v. Booker rendered the Guidelines advisory,[91] sentencing judges regained their discretion in sentencing. They were able to depart from the Guidelines in the interest of justice or other statutory concerns.[92]
The sentencing court must still give the Guidelines, including pertinent policy statements issued by the Commission, “respectful consideration.”[93] Despite their now-advisory function, “[a]s a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.”[94]
After properly calculating the applicable Guidelines range, the district judge must give “both parties an opportunity to argue for whatever sentence they deem appropriate.”[95] Usually this takes the form of briefs or a hearing, or a combination of both. The sentencing court must also take into account the “statutory concerns” of 18 U.S.C. § 3553(a) to determine whether the factors enumerated in the statute support the sentence requested by the parties.[96] Commonly referred to as “the § 3553(a) factors,” they include, in relevant part:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [by the Guidelines];
(5) any pertinent policy statement [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.[97]
Courts are directed to “consider all of [them]” to impose a sentence that is “sufficient, but not greater than necessary, to comply with the purposes” of sentencing.[98]
Using the factors, the judge “must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.”[99] After imposing the sentence, the judge is required to “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”[100]
It is these factors—and the mandate to explain the reasons for a sentence so that the defendant and public can understand what is happening and why—that have guided Judge Weinstein’s sentencing decisions since the Guidelines became advisory. A potential downside of the new advisory system is that sentences may now vary significantly among courts and even within each judge’s docket.[101] The Judge pointed out that “[t]he difficulties in achieving uniformity across cases is most clearly revealed in sentencing,” partly because “[i]ndividual judges vary in their view of what is just. Even a single judge is not always consistent [with him or herself].”[102]
In order to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct—the mandate of § 3553(a)(6)—the Judge has followed three practices since Booker: (1) he holds a videotaped sentencing hearing and issues a written opinion stating the reasons for each sentence; (2) he takes into account the personal history and characteristics of each defendant and the circumstances that led them to commit the offense;[103] (3) and he considers the need for the sentence to ensure that it is proportional and tailored to the individual’s needs and that deterrence is achieved to the extent possible and practicable.[104]
In order to make an individualized sentencing assessment,[105] Judge Weinstein has developed a sentencing procedure.[106] He invites the government and the defense to submit briefings on the length of sentence each party believes is appropriate. After reviewing these briefs in conjunction with the Guidelines and the presentence report (PSR) compiled by the United States Probation Office,[107] he holds a hearing, at which the government, representatives from the United States Probation Office, the defendant, and the defendant’s friends and family may testify. Depending on the complexity of the case, he has also considered expert testimony on aspects of a defendant’s background or circumstances of the offense or personal characteristics of the defendant that should influence the sentence.[108] The Judge, who does not wear a robe at hearings, sits around a table in the courtroom with the defendant, counsel, family members, experts, and other witnesses.[109]
Shortly before Booker was decided, the Judge began videotaping his sentencing hearings.[110] Congress had recently enacted legislation under which courts of appeals were to review de novo any sentence that departed from the then-mandatory Guidelines.[111] This shifted “primary sentencing authority . . . to the appellate judges whenever a trial court provides a lower sentence than do the Guidelines matrices.”[112] Because appellate courts would not see the defendant and testifying witnesses, the Judge began to videotape all sentencing hearings to create a fuller record—to “develop an accurate record of the courtroom atmosphere, as well as some of the subtle factors and considerations that a district court must consider in imposing a sentence.”[113] To the best of the Authors’ knowledge, these videos have never been reviewed by the Court of Appeals.
Even though this de novo review procedure became partly inapplicable after Booker,[114] the Judge has continued video recording his sentencing proceedings (with the consent of the parties). As he pointed out in In re Sentencing, a video can “chronicle the defendant’s observable demeanor during the hearing and capture, as much as it is possible to do so, the real world humanity that the district court judge confronts.”[115] It is one more device to ensure that each defendant is sentenced as an individual.
Following the hearing and oral sentencing,[116] the Judge issues a full written opinion on the sentencing decision. A court is obligated to “state in open court the reasons for its imposition of the particular sentence.”[117] But if the sentence departs from the Guidelines, the court must issue a written statement of reasons[118] to show that it “considered the parties’ arguments and that it has a reasoned basis for exercising its own legal decision-making authority.”[119] This written statement should be “simple [and] fact-specific.”[120] The Judge has provided written statements of reasons in the form of an extensive memorandum opinion, regardless of whether he departed from the Guidelines. He is, as far as we can tell, the only federal judge in the United States to do so for every sentence he imposes, and has published over 400 sentencing opinions since Booker, exclusive of a number of sealed statements of reasons he has authored, to protect defendants and witnesses.
The opinions range from a half dozen to hundreds of pages. Not only do these opinions provide insight into each sentencing decision, but together, they shed light on the factors the Judge has found most persuasive or pressing in sentencing over time. Many of the opinions reference each other—particularly those involving similar conduct or sentencing factors. Viewed together, they are a compendium of one of the stated goals of the Guidelines: consistency in sentencing.[121] As the Judge noted in United States v. G.L., “[w]ith the increase in sentencing discretion and concern over unnecessarily long incarcerations has come an increased need for each judge to try to avoid inconsistency in his or her own sentences. Stating reasons for sentencing in memoranda helps minimize both dangers.”[122]
The first of the § 3553(a) factors instructs judges to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.”[123] This factor has arguably been the most influential in the Judge’s sentencing decisions.
Its importance is supported by statute: § 3661 of Title 18 of the United States Code states that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”[124] The Guidelines also allow sentencing courts to “consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.”[125] The Judge considers “[t]hese policies [to] embody longstanding practices ‘under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.’”[126]
One important factor the Judge considers at sentencing is the individual’s mental health and the risk of harm to them that incarceration might pose. If a defendant has a history of mental illness or is particularly vulnerable, they may require medical treatment that is unavailable in prison.
The Judge addressed this issue at length in United States v. D.W., where D.W., a twenty-seven-year-old man, was found guilty of possession of child pornography and sexual exploitation of a child.[127] A statutory mandatory fifteen-year minimum term of incarceration applied, and the applicable Guidelines range was 292 to 365 months of imprisonment.[128]
D.W. had been a victim of extreme violence and abuse as a child: he was separated from his biological family at the age of five, was found to have significant levels of lead in his system, likely suffered from fetal alcohol syndrome, and had severely impaired intellectual functioning.[129] He was repeatedly beaten and raped in several foster homes, and was eventually diagnosed with a learning disorder and “borderline to low average intelligence.”[130] He suffered from severe depression. As a young adult, before being imprisoned, he attempted suicide. While serving a state sentence for sexual abuse and endangering the welfare of a minor, he was repeatedly raped by other prisoners and attempted suicide several times. He was subsequently diagnosed with borderline personality disorder and adjustment disorder with depressed mood.[131]
When he was convicted of possession of child pornography and sexual exploitation of a child, the Judge ordered the parties to present experts on the “dangers presented by the defendant and recommendations for treatment and incarceration.”[132] He conducted extensive evidentiary hearings over the course of several months and considered reports of four experts, who testified about D.W.’s mental health, the likely effects of incarceration on him, and his risk of reoffense.[133]
The Judge concluded that D.W.’s significant history of mental illness and abuse would make him so vulnerable in prison that a lengthy term of incarceration in the general population of a medium security prison would violate the Eight Amendment’s prohibition against cruel and unusual punishment:
[W]hile defendant has been a sex abuser, he has lived most of his life as a victim. He requires medical treatment and protection. The past sexual abuse he himself has suffered, together with the fact that he is gay or bisexual, has a mental illness and is a convicted sex offender, make him a prime candidate for victimization in prison, unless adequate, appropriate precautions are taken. A sentence of fifteen years, without the protections suggested by the court, would likely be a condemnation to a decade and a half of unconstitutional physical, sexual, and psychological violence, as well as extended periods of debilitating solitary confinement.[134]
Given D.W.’s sexual orientation, previous sexual victimization, mental illness, and sex offender status,[135] he would likely be placed in solitary confinement for lengthy periods[136] during his incarceration; the Judge concluded solitary confinement would further exacerbate his mental illness and vastly increase the risk of suicide.[137]
He sentenced D.W. to the mandatory minimum sentence of 15 years of incarceration, with the recommendation that he be placed in a federal administrative facility that provides a treatment program for sex offenders. He concluded, “[w]hile still opposing such a long sentence as inappropriate in the instant case, the court finds that the [Bureau of Prisons] can structure a fifteen year sentence to avoid unconstitutional cruelty. By providing care and following the court’s recommendations in the treatment afforded D.W., cruelty in prison can be minimized.”[138]
Since D.W., the Judge has consistently analyzed how a history of mental illness impacts the sentence. For example, in United States v. Powell, the defendant was charged with conspiracy to possess with intent to distribute one kilogram or more of heroin, which carries a minimum prison sentence of ten years.[139] He ultimately pled guilty to a lesser-included charge of conspiracy to distribute at least 100 grams of heroin, which was subject to a statutory minimum prison sentence of five years.[140]
Because Mr. Powell had been diagnosed with bipolar disorder, depression, and schizophrenia when he was young and had attempted suicide on multiple occasions, the Judge sua sponte ordered a psychiatric hearing to determine whether Mr. Powell was capable of pleading guilty.[141] A psychologist, who served as an expert witness, determined that despite Mr. Powell’s “intellectual limitations, his psychiatric history, [with] long-standing clinical depression, his multiple suicide attempts, and his limited judgment and insight,” he generally understood that “selling a lower amount of heroin could lead to a lower term of incarceration, even if he did not comprehend the connection between a minimum term of incarceration and the statutory 100 grams.”[142]
The Judge reluctantly concluded that Mr. Powell met the standard necessary to enter a knowing and voluntary plea: “the court is troubled by the conclusion that because Mr. Powell is capable of pleading to distribution of some heroin, it must accept a plea as to a specific quantity of heroin.”[143] He recognized the “dilemma” that if he had not accepted the plea, Mr. Powell would be forced to undergo trial and potentially receive a much higher penalty if the ten-year statutory minimum were triggered.[144] He sentenced Mr. Powell to the statutory minimum of five years, and in light of his history of mental illness and suicide attempts, the Judge recommended that he be placed in a prison that “provides adequate psychiatric treatment, and that precautions are taken to assure safety from sexual and other attacks without excessive use of solitary confinement.”[145]
D.W. and Powell were unrelated cases with few similarities; a drug conspiracy matter requires an entirely separate analysis than a case involving child pornography. But both individuals had been diagnosed with one or multiple mental illnesses, attempted suicide, and never received access to the treatment they needed. The Judge saw a common thread in these cases: medical and emotional history that not only influenced the commission of the crime itself, but also needed to be taken into account at sentencing.
Judge Weinstein has also recognized that incarceration could have deleterious effects on individuals with certain characteristics, and that the effect prison could have on the particular individual must be considered at sentencing. He explained in D.W.:
The trial judge cannot close his or her eyes to the conditions a particular defendant being sentenced will necessarily experience in prison. When a long term is fixed by statute, the prison environment must be considered by the sentencing judge in estimating total harm and benefits to prisoner and society—a utilitarian as well as a compassionate exercise.[146]
As illustrated above by the case of D.W.,[147] this is particularly true for defendants who struggle with mental illness; in most instances, incarceration will exacerbate the illness and inhibit reintegration into society following the prison sentence. For example, in United States v. Lawrence, Judge Weinstein again determined that a defendant’s history of mental illness merited departure from the Guidelines, primarily because a long sentence would exacerbate his condition. Mr. Lawrence had attempted suicide and there were reported altercations with corrections officers while he was incarcerated at Rikers Island on a previous conviction.[148] The Judge concluded that with this history, Mr. Lawrence would likely be placed in solitary confinement during his incarceration, and he relied on D.W. to evaluate the effect that solitary confinement would have on a person with suicidal ideations:[149]
Inmates with mental illness are frequently placed in solitary confinement, both to punish them if their behavior does not conform to prison policies and to protect them if they are vulnerable and pose a risk to themselves or others. See D.W., 198 F. Supp. 3d at 74–76. “Reliable studies show that inmates with pre-existing mental illnesses are likely to suffer the most severe consequences from isolation,” and “[t]he effects of solitary confinement do not end when an individual is released. The harm caused is likely to translate into greater risks for the public when a former inmate is unable to reenter his or her community even somewhat rehabilitated—the lasting consequence of prolonged isolation.” Id. at 93–94.[150]
He concluded that solitary confinement “will neither provide significant specific nor general deterrence[,]. . . will harm Mr. Lawrence’s mental health[,] [and] is likely to increase dangers to the community upon defendant’s release.”[151] These factors merited leniency in sentencing.[152] He sentenced Mr. Lawrence to thirty months imprisonment, below the forty-one to fifty-one months recommended by the Guidelines.[153] In reaching this conclusion, he reiterated the importance of considering each defendant’s complex and highly individual history:
Sentencing considerations are more difficult to evaluate when a defendant is mentally or physically disabled and requires treatment that is not available to the same extent in prison as while under supervised release in the community. . . .
The compassion and empathy due a defendant denied an appropriate middle-class upbringing and education should in theory have no effect in calculating deterrence elements. But they do. Many of the difficulties of young men before us are based on failures of society to provide adequate help, or may be artifacts of societal discrimination carried over from generation to generation. In sentencing, the court looks across to a human being and his mother and siblings who suffer from the sentence.[154]
The Judge has also found that gang affiliation and real or perceived cooperation with authorities should be taken into account to avoid unnecessary harm in prison. In United States v. Curry, for example, he sentenced a defendant convicted of participating in a drug trafficking organization (DTO) in Queens, New York.[155] He pled guilty, and at the time of his sentencing, ten of the eleven remaining defendants—all DTO members—were awaiting sentencing.[156] The Judge determined that Mr. Curry “has experienced severe problems in custody. . . . Likely because other inmates believed defendant to be an informant, he was attacked on multiple occasions during his incarceration.”[157] In light of this, and other factors, the Judge sentenced him to time-served of ten months, ensuring that his physical safety would not be compromised because others believed he cooperated with authorities.[158]
In United States v. Levy, the Judge was similarly concerned that the defendant would be attacked in prison, and structured the sentence accordingly.[159] Mr. Levy was a former gang member, and illegally obtained a gun because “he believed—with justification—that he was in physical danger from potential attackers and needed the gun for his own protection.”[160] Mr. Levy explained at his sentencing hearing that he had belonged to the Bloods street gang, and that his former membership made him a target.[161] The Judge took this into consideration at sentencing: “[t]he court recommends that he not be placed at Federal Correctional Institution Raybrook because placement there may put Levy in physical danger from other prisoners.”[162]
The family circumstances of each defendant usually merit significant consideration in sentencing. Just as an instable family environment during childhood can contribute to the likelihood of contact with criminal justice system as an adult, returning to a stable and supportive family environment following a prison term can aid in rehabilitation and reentry. The Judge has consistently considered the level of family support that was available to a person during upbringing, and that will likely be available following the sentence. The effect a term of incarceration might have on the person’s family must also be considered.[163]
In D.W., the Judge gave significant consideration to D.W.’s upbringing and family circumstances in his sentencing decision. As discussed in greater detail in Section III.B.1.a, D.W. had been separated from his biological family at the age of five because of abuse and neglect, and he suffered extreme abuse and violence while in the care of two foster families.[164] A key factor in whether an incoming prisoner is likely to experience sexual abuse while incarcerated is whether that person has previously suffered sexual assault.[165] Based on expert testimony, the Judge concluded that the familial abuse and neglect D.W. had suffered early in his life rendered him exceptionally vulnerable to sexual assault during incarceration. The hearings revealed that part of the reason D.W. suffered from pedophilic disorder was the childhood trauma he experienced at the hands of his biological and foster families.[166] His upbringing—which contributed to his illness, which in turn contributed to his propensity to commit the offense—therefore had to be given significant weight. While D.W.’s crimes were serious, “[he] was himself the victim of serious abuse. His offenses were driven, at least in part, by his own prior victimization . . . . He has expressed remorse and a desire to take responsibility for his actions. . . . These are powerful mitigating factors.”[167]
Positive familial influence can be a mitigating factor in sentencing. The Judge usually requests that defendants’ family members and close friends attend sentencing hearings and invites them to submit letters or testimony relevant to sentencing. Their attendance and testimony are indications that they will continue to support the person following a conviction, which can aid in rehabilitation and prevent recidivism.
In United States v. Butler, for example, Mr. Butler had been convicted of conspiracy to commit securities fraud, securities fraud, and conspiracy to commit wire fraud.[168] In part because the Guidelines included life imprisonment in the suggested sentencing range, the Judge “requested that the Chief Judge of this court convene an advisory panel of judges of the court and an expert on sentencing guidelines from the court’s Probation Department to meet with [him] before the sentence.”[169] This procedure was commonly used in the Eastern District of New York before the Guidelines were adopted. It was appropriate in this case given “the severe impact of defendant’s frauds on the international short-and long-term securities markets, and other complexities presented by this sentencing . . . .”[170] The consulting judges on the panel concluded that a sentence of between six and ten years of incarceration would be appropriate. Judge Weinstein imposed a lower sentence of five years of incarceration, primarily because Mr. Butler’s friends and family would benefit from his presence at home and would assist him in rehabilitation:
I have imposed a lesser sentence of five years’ imprisonment plus three years of supervised release, with loss of all defendant’s assets and a heavy fine, for two primary reasons: first, defendant’s young child and loving wife suggest the desirability of defendant’s early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant’s positive reaction to supervision since his arrest, indicate a high probability of rehabilitation. . . .
Defendant is supported by a large community of family and friends, and a wife and child. They have attested to his good character in written submissions to the court.[171]
The Judge reached a similar conclusion in United States v. King, in which Mr. King had been convicted of possession with intent to distribute marijuana.[172] The imprisonment range suggested by the Guidelines was forty-six to fifty-seven months. He sentenced Mr. King to time served, the short time between arrest and being bailed. In part, the relatively short prison time was due to his significant family connections and the likelihood that this strong support system would help him rehabilitate:
This is a serious offense. It appears aberrant, however, given defendant’s circumstances. He has no prior convictions. He comes from a stable and loving family. His father, who works for a bakery, and his step-mother, who works as a home health aide, both took off from work to attend his sentencing hearing. So, too, did his mother, also a home health aide, and sister, who works at a law firm. . . . It is unlikely defendant will engage in further criminal activity in light of his family circumstances and acceptance of responsibility.[173]
The strong role family and friends can play in a person’s rehabilitation is also evident in many of the cases involving immigration matters. As is discussed in greater detail in Section III.B.2.a.2 infra, the Judge usually imposes sentences below the Guidelines on defendants who will be deported following their sentence. Family is particularly strong consideration in these cases, because individuals who have strong family ties in their home countries, and who committed the offense to support their family financially, are unlikely to recidivate.[174]
Judge Weinstein also considers the effect that a person’s incarceration and eventual release will have on their community. Like family members, a defendant’s community can either create an environment in which they are more likely to commit a crime or foster an environment in which they can be rehabilitated and thrive following the sentence.
In United States v. Lawrence, for example, the Judge noted the inherent contradiction that a sentencing judge faces when taking a person’s community into account: incarceration removes the threat an individual posed to the community, but also prevents that person from positively contributing to the community and rehabilitating.[175] Mr. Lawrence had repeatedly fired an illegal handgun down a public street.[176] The Judge noted that “[a] prison sentence is partly intended to make a community safer and to remove the danger a defendant poses to the people around him or her while incarcerated and after release through specific deterrence.”[177] But a long prison sentence—which does not necessarily lower the rate of recidivism—would not keep the community safer in the long run.[178] He carefully considered the devastating effect that high rates of incarceration pose on impoverished communities:
Another vector [in sentencing] is the cost to a defendant’s community of long-term imprisonment: defendants are usually incapable of making substantial contributions to their communities and families while they are incarcerated and after a long sentence has been served. The large number of people who come from deprived communities and are imprisoned, and their absence while in prison, has a disastrous political, social, and economic effect on their communities and on the families they come from or missed having.[179]
He imposed a sentence well below the Guidelines, concluding that Mr. Lawrence and his community would be better served if he could rehabilitate during a shorter period of incarceration and contribute to the public welfare upon release.[180]
Relatedly, belonging to a religious community and regularly attending services can improve an individual’s reintegration into the community and avoid recidivism.[181] In United States v. Hernandez, the Judge sentenced Mr. Hernandez, who was convicted of having received child pornography, to the statutory minimum of five years in prison, far below the Guidelines range.[182] As conditions of his supervised release, Mr. Hernandez was not to use an Internet capable device and have unsupervised contact with minors. He violated these conditions when he accessed pornography online and interacted with several minors at his church.[183] Due to this conduct he was discharged from his treatment facility; this caused him to violate the release condition that he participate in mental health treatment specific to sex offenders. A magistrate judge who presided over these violations created the bail condition that Mr. Hernandez cease attending religious services at his church, where minors would be present.[184] The Judge found that this condition of supervised release unconstitutionally restricted Mr. Hernandez’s First Amendment right to exercise his religion,[185] particularly because religious association might improve reentry into the community:
The condition, now lifted, impedes rehabilitation, one of the primary goals of supervised release. Participating in religious services can assist past offenders to return to their community and avoid recidivism. . . .
While a defendant is incarcerated, he can benefit from the help of chaplains, who are employed in federal prisons to help meet the religious needs of defendants. After they are released it is often critical that defendants who wish to attend religious services be permitted to do so.[186]
By considering the same types of factors in defendants’ personal history and characteristics—most notably, mental and physical health, the influence of family, and the impact of community—the Judge has striven to achieve some consistency in his own sentencing. Regardless of subject matter, each sentencing decision merits an individualized inquiry into the factors that contributed to the commission of the offense, the effect incarceration will have on the individual, and the likelihood of rehabilitation upon reentry into the community.
The second of the § 3553(a) factors instructs judges to consider “the need for the sentence imposed,” including the “seriousness of the offense . . . and to provide just punishment for the offense; [ ] to afford adequate deterrence to criminal conduct; [ ] to protect the public from further crimes of the defendant; and [ ] to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”[187]
The next Section focuses on the first two sub-factors—seriousness of the offense and deterrence—because the second of the two factors—necessary medical or correctional treatment and protection of the public—is extensively discussed in the context of Sections III.B.1.a and c of this Article.
The Judge has often considered drug crimes involving the possession or sale of illegal narcotics—among the most common cases in the Eastern District of New York—to be a less serious offense, and, accordingly, imposed relatively low sentences for such crimes.[188] Between 2006 and 2017, Judge Weinstein’s mean and median sentences for drug trafficking crimes were twenty-four and eleven months of incarceration, respectively.[189] The national mean and median were seventy-four and fifty-seven months, and forty-two and twenty-six months in the Eastern District of New York during the same timeframe.[190]
Many individuals convicted of drug offenses suffer from drug dependency, and he has taken this factor into account when considering the need for the sentence. He has often determined that addiction usually obviates the need for a prison sentence, mainly because the offense—while sometimes serious—is likely not to be repeated if the person is given proper treatment.[191]
This concern to keep sentences moderate is especially evident in cases involving drug dependencies that developed from prescription opioids—currently creating a national health crisis. This problem was highlighted in United States v. Ilayayev,[192] two separate sentencings that the Judge addressed in a single statement of reasons. One defendant, Mr. Hanuka, had sustained a serious back injury from a car accident when he was a teenager, and was eventually prescribed oxycodone. He became addicted to the medication, continuously increased his dosage, and sold the pills he did not take in order to financially support his addiction—the basis of his conviction.[193] Following his guilty plea, he voluntarily enrolled in a substance abuse treatment program, found full-time employment, and made plans to enroll in college.[194]
The defendant in the second case, Mr. Ilayayev, used illegal substances such as LSD, ketamine, MDMA, and PCP recreationally, beginning when he was a teenager.[195] He was arrested when he sold or attempted to sell over 5,000 MDMA pills to an undercover agent. He was sentenced to time served (several days); arrangements were made for him to be transferred from jail to an inpatient drug treatment facility.[196] He participated in the Eastern District of New York’s STAR Court,[197] but was discharged from the program for continued drug use. During his period of supervised release, he was charged with multiple violations, several of which were drug-related. He was ordered to attend an outpatient drug treatment program, but he continued to have difficulty refraining from drug use.[198]
The Judge contrasted the two sentences in a joint statement of reasons, examining the opioid epidemic in the United States and the role addiction plays in criminal conduct. He sentenced Mr. Hanuka to five years of probation, largely because his medically induced “addiction drove the [ ] offense. . . . Though there is circumstantial evidence that defendant was prepared to sell the drug illegally, there is no direct evidence of instances of actual distribution of the drug or of any gang activity or violence related to distribution.”[199] Despite the “undoubtedly serious” nature of the offense, Mr. Hanuka’s successful steps towards rehabilitation, the support from his family, and the restriction of freedom posed by probation tempered the need for a lengthy prison sentence prescribed by the Guidelines.[200]
In Mr. Ilayayev’s case, the same factor—addiction—weighed in favor of a more restrictive sentence since it appeared to have been self-induced. Because Mr. Ilayayev’s “conduct . . . has demonstrated his inability to gain control over his drug addiction by outpatient treatment,” his addiction was driving him to commit further crimes.[201] The Judge revoked his supervised release. He sentenced Mr. Ilayayev to the minimum term of one day in custody, and imposed a new term of supervised release of two years,[202] with the condition that he participate in an inpatient drug treatment program.[203]
In both cases, the Judge recognized that addiction can drive an individual’s criminal conduct, and if possible, should be treated rather than punished. Addiction is a factor that weighs strongly against incarceration:
Where drug addiction of the defendant is causatively intertwined with a violation of the criminal law, every effort should be made to minimize incarceration in favor of a closely supervised, intensive medical treatment regime outside of prison. Outpatient treatment is preferred, permitting the defendant to be more readily integrated into a drug-free productive lifestyle in the community.
Where outpatient treatment fails and defendant continues to use drugs, he should be confined to an available non-incarcerative in-patient treatment facility.
Every effort should be made to avoid incarceration. According to the experience of this court’s probation services and experience of its judges, prison appears to increase the likelihood of: inability to conform to community standards, continued use of drugs to help assuage the pains of failure, ostracism, the risks of complicating psychiatric problems, and the difficulty in obtaining a job.[204]
The Judge revisited this topic in 2017 and imposed several sentences that were consistent with the views expressed in Ilayayev. He sentenced multiple defendants who were found to be participating in the DTO described above in Curry.[205] The DTO had access to firearms and narcotics; it distributed heroin.[206]
One of the defendants, Mr. Scott, was convicted of conspiracy to distribute and possess with intent to distribute heroin.[207] He had begun taking prescription painkillers for knee replacement surgery he underwent approximately a decade before his arrest. He became dependent on the painkillers, turned to heroin because it was cheaper, and developed a heroin addiction.[208]
The link between prescription opioids and heroin is well-documented: heroin is a readily available, powerful, and cheaper alternative to prescription opioids, and about eighty percent of people who use heroin first misused prescription opioids.[209] Heroin use often leads to criminal conviction either for possession or for distribution, since many users are forced to sell narcotics in order to support their addiction. Because of the “high correlation between prescription painkillers and heroin use” the Judge concluded that the cause of the addiction must be considered as a factor in sentencing.[210] He determined that Mr. Scott was involved with the DTO only to support his addiction. He sentenced Mr. Scott to time-served of approximately twenty months and to receive substance abuse counseling during his supervised release.[211] He recognized that Mr. Scott “faced problems that are typical of a common addiction,” and that the prison term as recommended by the Guidelines—151 to 188 months—would have been excessive and unnecessary; it failed to take into account the reasons that led Mr. Scott to violate criminal drug laws.[212]
He reached the same conclusion in United States v. Thomas, in which Mr. Thomas was charged with conspiracy to distribute and possess with intent to distribute heroin as part of the DTO.[213] Like Mr. Scott, his heroin addiction resulted from a legal opioid prescription. Quickly he became addicted and began buying the pills on his own. When his addiction became too expensive, he switched to heroin.[214] The Judge cited extensively from the studies in Scott, and concluded that, like Mr. Scott, Mr. Thomas “is a victim of this growing trend of users of prescribed opiates to switch to illegal heroin. His use of heroin and participation in the gang can be traced back to the . . . prescriptions he received following his back injury in 2009.”[215] Mr. Thomas was sentenced to time served of approximately twenty-three months, after a determination that incarceration was inappropriate.[216]
These sentences demonstrate how the Judge consistently treats the cause of the addiction as a major factor in sentencing. He has often found that incarceration is neither necessary nor effective as a treatment.[217]
Another area in which the Judge has found the need for incarceration to be especially low is where the defendant is a national of another country and will likely be deported from the United States immediately after being released from custody.[218]
He first addressed this question in United States v. Chong, in which a lawful permanent resident of the United States was convicted of a single count of possession of methylone with intent to distribute.[219] Because the crime qualified as a removable offense,[220] Mr. Chong was likely to be deported after serving his custodial term, this played a significant role in the Judge’s sentencing assessment. District judges had only recently been able to take the prospect of deportation into account at sentencing.[221] Citing the four justifications for criminal sentences laid out in § 3553(a)(2)—retribution, deterrence, incapacitation, and rehabilitation[222]—the Judge determined that “Section 3553 should now be interpreted as requiring district courts to weigh the prospect of deportation, which is ‘an integral part— . . . sometimes the most important part—of the penalty that may be imposed on noncitizen defendants[,]’ when imposing a sentence.”[223]
He first concluded that imposing a lenient sentence on an individual who faced immediate deportation adequately addressed retribution or the seriousness of the offense:[224] “a sentencing judge cannot ignore the additional penalties and hardships that will attach as a result of conviction.”[225] In fact, the Guidelines urge district courts to consider “any collateral consequences of conviction, including civil obligations arising from the defendant’s conduct.”[226] Because deportation is by itself a punishment and poses a significant collateral consequence, “a lesser term of imprisonment for noncitizen defendants than otherwise would be appropriate” may be adequate to provide just punishment.[227]
Second, he concluded that a lesser term of incarceration when deportation is at issue provides adequate deterrence to satisfy the second element of § 3553(a)(2). Deterrence is based on the assumption that a potential offender is aware of the law and has concluded that the benefit of breaking it outweighs the cost of the associated punishment. But potential offenders do not necessarily understand or consider when committing the crime that incarceration can constitute the criminal sentence, and that deportation is an almost certain collateral consequence.[228] Individuals to be deterred “lack perfect information concerning the penalties that will attach for their misconduct.”[229] And, because deportation by itself poses such a significant disruption to a person’s life, the Judge concluded that it usually provides adequate specific and general deterrence under § 3553(a)(2)(B) of Title 18. “In cases where, because of established community ties, the added hardship of deportation results in a more severe penalty, a downward adjustment to the term of incarceration is warranted.”[230]
Imposing a low or minimal term of imprisonment in light of a pending deportation proceeding also meets the § 3553(a)(2)(C) mandate that the sentence sufficiently “protect the public from further crimes of the defendant.”[231] The Judge concluded that “[f]or many types of offenses, deportation will provide an effective means of protecting the public from future wrongdoing by the defendant, obviating the need for a lengthy and costly term of incarceration.”[232] Unless the individual is able to legally reenter the United States or has the means to commit further U.S. offenses from abroad, “the American public is generally safe from those who have been deported.”[233]
Lastly, considering deportation as a sentencing factor can “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner” as required by § 3553(a)(2)(D).[234] Imprisonment is generally “not an appropriate means of promoting correction and rehabilitation,”[235] and many prisoners subject to removal detainers are excluded from rehabilitative programs offered in prison.[236] Even if they are successfully rehabilitated, they will not be able to contribute to their community in the United States because they will be deported to their country of origin immediately following the custodial term. Because rehabilitation cannot be effectively achieved by incarcerating an individual about to be deported, the need for a long sentence should be avoided.[237]
The Judge concluded in United States v. Chong that deportation should always be considered in sentencing and that it usually supports a shorter term of incarceration than would otherwise be appropriate. In this specific case, he imposed a sentence of a short time served as opposed to the “excessive” sixty-three to seventy-eight months recommended by the Guidelines:[238]
Even without a lengthy term of incarceration, defendant will be adequately punished for his wrongdoing by his expulsion from the United States. He will be transported to a foreign country, Malaysia, to which he has no meaningful connection. He will be separated from his younger sister and parents; from his friends; and from the only community he has known throughout his teenage and adult life. While English is widely spoken in Malaysia, defendant is no longer fluent in the local languages, skills that will be critical as he seeks to rebuild his life. Additional long incarceration beyond such banishment would not be “just punishment.” See 18 U.S.C. § 3553(a)(2)(A).[239]
The Judge again highlighted the disproportionally large impact deportation has on an individual and their family members in United States v. Aguilar.[240] Mr. Aguilar grew up with few economic and educational opportunities in Mexico; he was orphaned as a child.[241] He illegally immigrated to the United States in his early twenties and began working in construction, eventually becoming a supervisor. He met his wife in the United States, and they had two sons born here. When he pled guilty to producing false passports, a detainer for deportation was lodged by Immigration and Customs Enforcement.[242]
The Judge noted that “around 4.5 million United States citizen children live in families where at least one member is an undocumented migrant.”[243] Many of them have lost a family member due to deportation.[244] These separations have particularly harmful effects on children. They include negative emotional, relational, financial, and academic consequences.[245] Families who are left behind after one family member has been deported usually also suffer from “housing insecurity, food insecurity, psychological distress, and slipping from low income into poverty.”[246]
The Judge considered these significant risks in the context of Mr. Aguilar’s case. Based on testimony and observations, he noted that Mr. Aguilar’s wife and children would suffer significantly if he were deported.[247] Imposing a sentence of the short time already served, he urged the immigration judge assigned to Mr. Aguilar’s case to allow Mr. Aguilar to remain in the United States, and to provide him with work release and permission to live with his family during his detention period.[248]
In at least twenty cases decided after Chong, the Judge has imposed minimal sentences on individuals who were facing deportation following their custodial terms. In each instance, the Judge relied on the fact that “in view of the excessive incarceration rates in the recent past and their unnecessary, deleterious effects on individuals sentenced, society, and our economy, parsimony in incarceration is encouraged.”[249]
The Judge has noted that narcotics trafficking cases in which defendants are eligible for deportation following the custodial term in particular merit deviation from the Guidelines, because the recommended ranges are excessive and unnecessary. “[R]anges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. . . . Instead, they are driven by drug type and quantity, which are [often] poor proxies for culpability.”[250]
By considering the effect of deportation and balancing it against the need for incarceration, the Judge has created a consistent and rational framework for sentencing in similar cases.[251] He views this attempt at consistency to be a “daunting task,” but “[w]ith the increase in sentencing discretion and concern over unnecessarily long incarcerations has come an increased need for each judge to try to avoid inconsistency in his or her own sentences.”[252]
Unlike narcotics crimes, Judge Weinstein has often determined that the § 3553(a)(2) factors necessitate a higher sentence for cases involving gun crimes. Although the Commission’s data reflects that between 2006 and 2017, the Judge imposed sentences shorter than the national averages for most crimes, the length of sentences he imposed for gun crimes during that time period is in line with that of judges nationally and within the Eastern District. Between 2006 and 2017, Judge Weinstein’s median sentence for a gun crime was sixty months, which is the same as the Eastern District of New York median and five months more than the national median.[253] However, the Judge’s mean sentence of fifty-nine months is significantly below the Eastern District mean of ninety-five months and national mean of eighty-one months.[254]
Gun violence in the United States is often committed with guns that are illegally obtained. A study conducted in New York City—where gun control and licensing requirements are relatively strict—concluded that the vast majority of guns connected to a crime and recovered by law enforcement originated from outside of the state and were illegally brought to New York.[255] The threat of guns is particularly acute in the context of gang affiliation: for example, the number of shootings in New York City in 2016 fell to the lowest level in over twenty years; law enforcement officials believe that this decline was due to an increased focus on stopping gang violence.[256]
The Judge considered the problem of gang guns at length in Lawrence. Mr. Lawrence, who was twenty-five years old, had fired an illegally obtained handgun down a main thoroughfare, wounding his companion. He pled guilty to possession of ammunition, having previously been convicted of a crime punishable by a term of imprisonment exceeding one year.[257] The Judge imposed a substantial prison term of thirty months, which he found necessary “[g]iven the rampant use of illegal guns in this State and the threat they pose to the community.”[258] But, because several mitigating factors were present—Mr. Lawrence’s mental health,[259] his family situation, and the negligible deterrent and rehabilitative effect of long sentences in gang cases—the Judge sentenced him far short of the forty-one to fifty-one months recommended by the Guidelines and the 120 months requested by the government.[260]
He has reached similar conclusions about the need for substantial incarceration in other cases involving guns, imposing incarceration terms that are substantial, but still below the Guidelines recommendations.[261] In United States v. Wiggins, for example, Mr. Wiggins made several drug sales to an undercover police officer. Because he showed an assault rifle to a confidential informant during one of the sales, a search warrant was executed.[262] A subsequent search of Mr. Wiggins and his home revealed two firearms, ammunition, and narcotics,[263] but all the evidence from the search was suppressed because the Judge determined that the warrant had been insufficiently particular.[264] Although Mr. Wiggins was convicted only of the underlying narcotics sales, the Judge, nevertheless, took the firearms into consideration at sentencing.[265] He concluded that the drug offense “is made more serious by the firearms [Mr. Wiggins] illegally possessed,” and that incarceration was appropriate because “[the firearms’] mere presence in the home created risks of serious harm[,] . . . exacerbated by the presence of children.”[266] Noting that “[t]his case illustrates the necessity of a substantial period of incarceration when guns are involved,” he sentenced Mr. Wiggins to a substantial term of thirty months incarceration—still far below the Guidelines-recommended range of ninety-two to 115 months—explicitly due to the threat of gun violence posed.[267]
Similarly, in United States v. Ray, the defendant was convicted of conspiracy to distribute a narcotic, but not for the handgun that he possessed.[268] He was originally sentenced in 2011, a time at which offenses involving crack cocaine were subject to a mandatory minimum sentence of ten years, but was resentenced in 2013 after the Fair Sentencing Act of 2010 amended this provision.[269] With a Guidelines recommendation of seventy-eight to ninety-seven months, the Judge resentenced Mr. Ray to seventy-two months of incarceration. He imposed the lengthy term primarily because Mr. Ray had “possessed a handgun in furtherance of his drug activity,” which, “in a housing project—filled with innocent bystanders—is extremely dangerous, regardless of its use with or independent of a drug crime.”[270] He concluded that even if Mr. Ray did not actually use the gun, a substantial sentence was necessary to “send a clear message that possession of dangerous and illegal firearms will result in extra prison time.”[271]
As illustrated by these cases, illegal gun possession is one of the few crimes for which the Judge consistently imposes lengthy periods of incarceration, even if they are often still below the Guidelines range. In one case involving gun possession, he explained that “[f]or many criminal offenses, the length of the sentences advised by the guidelines do not align with the court’s obligation to sentence a defendant parsimoniously and in accordance with Section 3553(a) considerations.”[272] But, given the danger of gun violence in the United States, lengthy incarceration “may nevertheless be appropriate in a firearm case. . . . [A] substantial sentence in a case involving guns . . . is the primary means by which the court can communicate to the public that firearms are inimical to the safety of persons living in [the] densely-populated urban community [of New York City], and that illegal possession will be severely punished.”[273]
The Judge’s sentencing decisions in crimes involving the possession or distribution of child pornography are a particularly useful example of how he has consistently interpreted “the need for the sentence imposed” under § 3553(a)(2) of Title 18. Like gun crimes, he has often determined that some child pornography crimes are serious offenses. But, like his opposition to the sentencing ranges prescribed for narcotics crimes, he has consistently voiced his opposition to the “excessive,”[274] “unreasonable,”[275] and “cruel”[276] sentencing requirements in child pornography offenses.[277]
In D.M., an adolescent defendant was found to be in possession of hundreds of images and video files of children engaging in sexually explicit conduct, which he had downloaded to his personal computer using a peer-to-peer file sharing system.[278] He pled guilty to possession of child pornography.[279]
By the time of the sentencing hearing, D.M. had already completed nearly two years of successful therapeutic treatment.[280] The Judge concluded that D.M.’s rehabilitative progress was a significant factor in sentencing, and he sua sponte sought extensive testimony from psychologists who served as expert witnesses.[281] Rather than receiving testimony from each expert in order, he asked the psychologists to testify in the form of a panel. He reasoned that “receiving expert testimony [ ] through interactive discussion among the experts and the court, similar to how experts might interact when empaneled for discussion at a conference” was “[a] particularly useful tool” to determine the need for D.M.’s sentence.[282] This “format promotes reasoned discussion of the relevant issues, allowing the experts to comment on each other’s testimony. . . . Through such a technique, areas of consensus or disagreement on technical subject matters are sharply drawn.”[283]
The records and testimony of these experts, as well as the therapists D.M. visited before he was arrested, unanimously concluded that “both society and defendant will be best served by a probationary sentence permitting him to continue the intensive outpatient treatment and monitoring that he currently receives.”[284] For example, D.M.’s therapist—whom he began seeing voluntarily immediately after a search warrant for his computer was executed—diagnosed D.M. as having a sexual disorder, but concluded that he posed no danger to the public and would benefit from continued treatment as opposed to incarceration.[285]
The Judge extensively relied on the expert testimony to conclude that “[e]vidence of a defendant’s efforts at rehabilitation is persuasive. It is indicative of the likelihood that a defendant will not reoffend and will not cause harm to the public.”[286] He sentenced D.M. to five years of probation, instead of the recommended seventy-eight to ninety-seven months of incarceration. In light of the medical testimony, he determined that a non-incarceratory sentence would best fulfill the § 3553(a)(2) factors: mandatory outpatient treatment posed the highest chance D.M. would not recidivate, the public would be protected, and D.M. would receive the treatment necessary to rehabilitate himself.[287] Because a Guidelines sentence would actually “impede or cause regression in the substantial progress that defendant has made through individual and group therapy while on bail,” the Judge was satisfied that probation adequately reflected the seriousness of the crime.[288]
Citing the “unreasonable harshness of the Guidelines for an offense of child pornography possession”—as compared to distribution or creation—he also determined that D.M.’s sentence avoided unwanted disparities in sentencing.[289] He noted that many courts have increasingly imposed below-Guidelines sentences with little or no incarceration in similar possession offenses and have instead ordered close supervision and treatment.[290] He ensured that D.M.’s sentence was in line with the recent recognition of courts that many child pornography offenses—particularly viewing-only offenses—are best treated through probation and therapy, rather than incarceration.
In addition to considering other courts’ sentences, the Judge has strived for consistency in child pornography cases by relying on his own prior sentencing decisions in this area. For example, in United States v. R.V., he relied extensively on the analysis in D.M. to sentence a defendant convicted of possession of child pornography to time-served of five days in prison and seven years of supervised release with mandatory medical treatment.[291] R.V. was living with his wife and their three young children and had been viewing adult pornography intermittently throughout his adulthood. He eventually began viewing child pornography through peer-to-peer electronic file-sharing software, participating in video chats and posed as a teenage boy to interact with underage girls in chatrooms.[292] He pled guilty to possession of child pornography, for which a Guidelines sentence of seventy-eight to ninety-seven months was recommended.[293]
There was no evidence that R.V. had engaged in any physical abuse of children, and he was making progress in his treatment.[294] As in D.M., the Judge took into account testimony from a psychiatrist who specializes in paraphilic disorders, and who concluded that the defendant’s risk of sexually abusing children was low, as was his likelihood for recidivism.[295] Both he and a social worker who extensively met with R.V. and his family concluded that an incarceratory sentence would not be effective, and that treatment would best serve rehabilitation. They noted that R.V.’s family remained very supportive of him, and that incarceration would create unnecessary instability and financial hardship within the family.[296]
Given R.V.’s low risk of reoffending, combined with the enormous collateral consequences of the conviction, the Judge imposed a sentence of probation with mandatory treatment. In concluding that a noncustodial sentence would be most appropriate for an individual convicted of a possession offense with a low risk of reoffending or endangering minors, he explicitly relied on the cases identified in D.M., as well as the sentence he imposed in D.M.[297] Only through “an analysis of comparable sentences”—including his own—could unwanted sentencing disparity be minimized.[298]
The Judge also pointed out in R.V. that sentencing disparity is unavoidable in child pornography cases because “[p]rosecution under the current sentencing framework has largely failed to distinguish among child pornography offenders with differing levels of culpability and danger to the community.”[299] Instead of treating all individuals convicted of a child pornography-related crime the same way, the law should recognize the difference between possession offenses and production offenses.[300] Defendants such as R.V. and D.M., who were likely to rehabilitate with proper treatment and who posed no danger to the public, must be differentiated from individuals who engage in sexual contact with minors or who produce and distribute pornographic material.[301] A “detailed recategorization and typology” for child pornography offenses is needed, with punishment appropriately tailored to the increasing seriousness of the offense.[302] Without such reclassification, the Guidelines “tend to apply indiscriminately to all child pornography offenders, greatly increasing the recommended punishment range without necessarily reflecting an individual’s heightened level of culpability,” and thereby reducing consistency in sentencing.[303]
The Judge applied the same reasoning in United States v. E.L. The defendant pled guilty to one count of possession of child pornography and was subject to a Guidelines recommendation of fifty-one to sixty-three months in prison.[304] E.L. was married and had two young children; he was the sole financial provider for his family. He began viewing child pornography during a period of unemployment, when he was separated from his family and suffering from severe mental health conditions.[305] Following his arrest, he began treatment with a therapist. Expert evaluations determined that his risk for reoffending was low, that he did not meet the criteria for a diagnosis of pedophilia, and that he was not at risk for committing a sexual contact offense.[306]
The Judge imposed a noncustodial sentence in E.L. because “[a]n incarceratory Guidelines sentence would have an adverse impact on the substantial progress that defendant has already made through his participation in individual and group therapy. It will deprive his family of vital financial and emotional support while doing little to further protect the public.”[307] By comparing the case to D.M. and R.V. for the same offense, he was satisfied that the sentence avoided sentencing disparity and “the excessive incarceratory terms recommended by the Sentencing Commission.”[308]
As this line of cases exemplifies, the Judge has approached the difficult balancing act since Booker by performing an individualized assessment of the facts of each case, while placing the case in the context of national sentencing trends and his own decisions in similar cases.
A sentencing judge must consider whether the sentence imposed ensures both specific and general deterrence.[309] The requirement is based on the notion that a sentence should be sufficient to deter both the defendant from committing the offense again and to deter members of the public from committing a similar offense.[310]
Until a recent case in which deterrence became a central issue at sentencing, the Judge frequently concluded that a fairly long sentence would be necessary to adequately deter both the individual and the general public from that conduct. For example, in United States v. Jones, a defendant previously convicted of a felony pled guilty to possession of a firearm. Although the Judge sentenced Mr. Jones far below the Guidelines—twenty-seven months of incarceration as compared to the recommended fifty-seven to seventy-one months—he concluded that the substantial term in prison was in part warranted because “[t]he sentence will send a clear message that possession of a firearm by convicted felons will result in a substantial prison sentence. Specific deterrence is achieved through incapacitation.”[311]
Similarly, in United States v. Barrow, he concluded that “a sentence within the guidelines range is appropriate because general and specific deterrence may be achieved.”[312] Because “[Mr. Barrow] sold over a
dozen firearms to someone who could have used them to extremely destructive ends,” he concluded that “[t]he community needs to understand that firearm crimes are grave. A sentence of this gravity (if properly publicized) will adequately communicate this message.”[313]
The Judge also considered specific and general deterrence to be important outside the context of gun-related cases. In United States v. Marsh, he sentenced eighteen defendants for “participating in a criminal scheme to defraud thousands of investors in publicly traded securities of millions of dollars in fees for investment advice.”[314] He sentenced each defendant to a term of incarceration, ranging from three months to eight years.[315] One of the major sentencing factors was specific deterrence: each person was sentenced based on his or her culpability and involvement in the scheme, so that each would be specifically deterred from committing such a crime again.[316] The Judge also determined that general deterrence was particularly important in this case because white-collar crimes are often perpetrated after reflection over a period of time, and can therefore be effectively deterred:
Considering the nature of the fraud perpetrated by the defendants, general deterrence is of great importance. Unlike defendants in gun and drug cases, who often act without reflection, individuals who engage in financial fraud can, at least in theory, be deterred by a substantial threat of penalties. Their actions are calculated. They choose to engage in white collar crime because they believe that the potential for significant financial benefits outweighs the risk that they will be punished. Since the crime was designed for monetary gain, defendants will be forced to lose all their assets.[317]
By contrast, he recently took a different approach to the role deterrence should play in sentencing in Lawrence. He determined that at least with respect to gun crimes such as the one in question, a longer term of incarceration would not necessarily have a general deterrent effect on the public to commit future crimes.[318] As detailed in Section III.B.2.a.3, Mr. Lawrence had fired a gun down a public street. He argued at sentencing that consideration of § 3553(a)(2)(B) of Title 18 should not lead to an increase in his sentence, because a long sentence would not effectively deter the public from committing the same offense.[319]
An expert in the fields of criminology and mental health who testified for Mr. Lawrence concluded that “although general deterrence is one of the essential justifications for criminal punishment, the deterrent effect of criminal sanctions for gun violence are specific to the risks of detection, not to the severity of punishments.”[320] He explained that the theory of general deterrence is based on a “rational offender” who is capable of weighing the risks of punishment against the chances of gain, is aware of the law prohibiting the contemplated act, and understands the punishment associated with the act.[321] But, because the ability to calculate the consequences of an action depends on factors such as age, maturity, level of education, and experience with decision-making, longer sentences are not necessarily associated with successful deterrence.[322] For gun crimes specifically, he had found that there is little reliable evidence “of a general deterrent effect of lengthy sentencing enhancements that impose additional years of incarceration for crimes committed with a firearm.”[323] Certainty of punishment—in other words, the risk of apprehension—is a far more reliable indicator of effective general deterrence, because “[p]eople are more motivated by the probability of being caught than by the severity of the punishment.”[324]
Based on this testimony, the Judge concluded that giving Mr. Lawrence a long custodial sentence would not deter others from committing similar offenses. Future potential offenders would have to know the sentence that Mr. Lawrence received, understand the likelihood of detection and the sentence envisioned by the Guidelines, and rationally calculate the risks of the offense. That process, he determined, “is unlikely” in a case such as this one.[325] Given Mr. Lawrence’s age,[326] health, his family circumstances, and the expert testimony on the “negligible deterrent effect a long sentence would likely have on defendant and the community,”[327] he imposed a below-Guidelines sentence. Longer incapacitation would have been appropriate given the threat illegal guns pose,[328] but as the Judge has made clear in all of his opinions: “[r]eal life rather than abstract theory takes precedence in sentencing.”[329]
III. Coda: Supervised Release and Changing His Mind on Sentencing
Fifty years into his tenure as a federal judge, in United States v. Trotter, Judge Weinstein reevaluated and changed his position on unnecessary long terms of supervised release and harsh conditions on defendants:
After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.[330]
In addition to this self-criticism, he promised on a going-forward basis to “(1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.”[331]
A change in general sentencing practice poses a quandary for consistency. It will change sentencing outcomes, leading to sentences that differ from one another based on the timeframe in which a defendant is sentenced. This Part explores the Judge’s revised approach to supervised release and its implications for sentencing consistency.
The Judge’s new take on supervised release arose in the case of Mr. Trotter, a twenty-two-year old who had been convicted of heroin distribution, and sentenced to two years in prison and the mandatory minimum of three years of supervised release.[332] Mr. Trotter was charged with violating conditions of his release: he used marijuana regularly and refused to comply with his probation officer’s drug treatment orders.[333] The governing federal statute would have required the Judge to reimprison Mr. Trotter if a factual finding was made about his continued marijuana use.[334] Instead of sending Mr. Trotter back to prison for using drugs, the Judge terminated his supervision, finding that reincarceration for marijuana use would not fulfill the rehabilitative goal of supervised release.[335]
In addition to writing about the narrow drug use issue involved in the Trotter case, the Judge delved deeply into the theoretical underpinnings and practical consequences of supervised release in the opinion. Like much of modern sentencing law, supervised release has its origins in the Sentencing Reform Act.[336] It was designed to help those who had served prison terms rehabilitate and reintegrate into society.[337] Over time, supervised release began to lose its rehabilitative character: terms became imposed routinely (although required in only half of all cases), the length of terms increased, and revocations (reincarceration) became common place.[338] One influential article on supervised release dubbed it “shadow sentencing,” noting that it was rarely given careful attention as a component of criminal sentencing, but had a lasting impact on defendants’ lives.[339]
The Judge relied on the academic literature about supervised release, which has demonstrated that increased supervision does not necessarily lead to desired results.[340] For example, a Brookings analysis cited in the opinion reviewed five social science studies about post release supervision, finding that reducing supervision could “maintain public safety and possibly even improve it” with less of a societal financial burden and negative impact on individuals.[341] Burdensome supervision can lead to minor violations of supervised release: “[t]his situation can trap some defendants, particularly substances abusers, in a cycle where they oscillate between supervised release and prison.”[342] To avoid this result, the Judge concluded that he would impose shorter terms of supervised release and terminate supervisions earlier, where appropriate.[343]
Since Trotter, Judge Weinstein has consistently giving careful attention to terms of supervised release. In United States v. Smith,[344] he sentenced a man convicted of illegally exporting handgun parts from the United States to Turkey to a term of incarceration of two months and six months of supervised release.[345] The Judge explained: “[a] longer period [of supervised release] could prove overly burdensome for the defendant, who works long hours at night.”[346] The short term also was warranted because, based on his relationship to his son, and his need to be free to live with him, “he seem[ed] unlikely to recidivate.”[347]
Conditions of supervised release have also factored into the Judge’s post-Trotter sentencing decisions. In the summer of 2018, he sentenced an American citizen convicted of terrorism related offenses to time served (approximately two years) and ten years of supervised release.[348] The defendant, twenty-nine at the time of sentencing, left his life and family in New York City to move to Syria and join the Islamic State of Iraq and Syria (ISIS) in search of an Islamic Utopia.[349] Mr. Doe, quickly disillusioned by the brutality of ISIS, sought return to the United States.[350] After a daring escape, he made his way out of Syria and provided valuable intelligence on ISIS to the United State law enforcement community.[351]
The Judge found that additional incarceration would inhibit Mr. Doe’s rehabilitation—”[a] lengthy prison sentence increases the risk that defendant will become embittered and regress[ ] into radical beliefs.”[352] But, noting the paramount concern for public safety and substantial risk to the United States in the future posed if the defendant were to recidivate, the Judge sentenced him to a lengthy term of postrelease supervision—ten years.[353]
Even when imposing a substantial period of supervised release, the Judge stuck to his promises to “give greater consideration to the appropriateness of conditions . . . [and] provide for earlier termination where indicated.”[354] Judge Weinstein took expert testimony on the appropriateness of supervised release conditions in this terrorism case.[355] He imposed special conditions of supervised release requiring strict Internet monitoring, a prohibition on associating with radical groups, and a full financial disclosure.[356] But, he also directed the probation department to place Mr. Doe on low-intensity supervision in two years if he “demonstrates substantial grounds for believing he is rehabilitated”; the probation department was asked to consider applying for early termination of supervised release after five years.[357]
Later that year, the Judge followed his “marijuana holding in Trotter . . . and extended [it] to habitual use of alcohol socially.”[358] Mr. Thomas, who had been sentenced to time served for a drug offense,[359] violated the terms of his probation agreement by drinking alcohol while participating in a drug treatment program.[360] Reiterating the principles set forth in Trotter—namely, that supervised release is designed to rehabilitate, not punish—he terminated Mr. Thomas’s supervised release, because “[c]ontinued supervision is unlikely to assist in [Mr. Thomas’s] rehabilitation.”[361] The Judge explained that in the future, he “will not find violations of supervised release and punishment by incarceration merely for habitual, socially acceptable use of alcohol except in unusual cases.”[362]
Over a judge’s career—particularly one that spans more than fifty years—many changes will occur: laws, social customs, scientific understanding, etc. The Trotter opinion illustrates two external developments that led the Judge to change his sentencing practices. First, the prevailing change in attitudes about marijuana caused the Judge to reconsider his position on reincarceration for its use.[363] Second, the burgeoning academic consensus about the problem of “over supervision” gave him reason to reevaluate the terms and conditions of supervised release he imposes.[364]
There is a uniformity issue raised by this change, and, for that matter, any change to sentencing practice adopted by a district judge. But, if the options are (1) persisting in error for the sake of consistency, or (2) reforming practice to adhere to a more complete understanding of the issues, the latter seems the obvious choice.
Nearly twenty years after Booker, federal judges have few external guideposts on which to rely in determining an appropriate sentence and ensuring consistency. Perhaps this is why many judges adhere to the Guidelines: they provide a predictable, grid-like approach to determining the length of a sentence.[365] Although this Guideline approach can provide consistency, it is often consistently harsh: as Judge Weinstein has noted over and over, the Guidelines favor punishment over rehabilitation, and reflect imperfect and outdated societal assumptions about criminal behavior.[366]
In undertaking this project, we have come to believe that a faithful application of the sentencing statute, § 3553, requires a judge to downward depart from the Guidelines in many cases. There is no conceptual tension between fairness and consistency. But the Guidelines primarily focus on two factors that tend to result in harsh sentencing: the nature of the offense and the individual’s criminal history.[367] Other common factors that adjust the Guideline range include pleading guilty, accepting responsibility (often demonstrated by pleading guilty), obstructing justice, using violence, or having a mitigating role in the offense.[368]
The Guidelines largely fail to address, partly by design, the “history and characteristics of the defendant” prong of § 3553(a)(1).[369] Judge Weinstein, both before and after Booker, has relied on a variety of factors under this subdivision, as detailed above, in his sentencing decisions. These factors—mental health, family ties, prison conditions—often lead the Judge to sentence more leniently than the Guidelines suggest. A judge taking account of all of the § 3553(a) factors may often reach a different result than the one recommended by the Guidelines, because the Guideline ranges do not account for the many factors in a person’s history and their capacity for rehabilitation.
The Guidelines proceed from the premise that the defendant being sentenced is a criminal. The sentencing jurisprudence of Judge Weinstein—and other judges who regularly sentence below the Guidelines[370]—is that the person being sentenced is a person.[371] This change in reference point is more than rhetorical: it can lead to a change in sentencing outcomes.[372]
Supporters of the Guidelines will note that the Guidelines provide a range, not an absolute number, and that a judge has discretion within that range to evaluate the § 3553(a) factors not expressly incorporated into the Guidelines calculation.[373] But there are two problems with this argument. First, it places criminal history and the nature of the offense above all of the other factors in § 3553(a), an idea that does not find support in the statute. Second, it presumes that the Commission’s recommendation is the “right” sentence for an individual—a view that no longer comports with sentencing law.
The ranges proposed by the Commission remain—in general—overly harsh. If the Guidelines reflected the median or average sentence length imposed by judges, one would expect that departures above and below the Guidelines would occur at similar rates. But in 2017, fewer than three percent of all federal sentences imposed were above the Guidelines range, while nearly forty-eight percent were below.[374] The Guidelines will continue to have a diminished role in assuring some form of sentencing consistency so long as they provide ranges that are excessive in the views of many district judges.
For a judge who believes the Guidelines are overly punitive, the best option is to strive for consistency in his or her own sentences. As Judge Weinstein posed the issue: “do I treat a garden variety heroin importer on Monday as I do on Friday? Is there a garden-variety importation case?”[375] Setting forth an articulable list of principles and adhering to them in each case, using the same method, can be employed to achieve this goal. Judges should try to develop principles in addition to the Guidelines to account for the variety of human factors—often mitigating—presented in many cases; this is one way to faithfully apply the statute, and to sentence fairly.
Judge Weinstein has spent his career in continuing search of humanity, empathy, and protection of the public. He treats each defendant before him with support and concern. He sits face-to-face with defendants and family members, trying to understand the effect of his sentencing decisions.[376] His efforts to improve sentencing are shared by federal district judges who address inequalities in our criminal justice system each day.
Appendix A
† Carolin E. Guentert graduated from New York University School of Law in 2014 and clerked for Judge Jack B. Weinstein from 2016 to 2017. Ryan H. Gerber graduated from New York University School of Law in 2015 and clerked for Judge Jack B. Weinstein from 2017 to 2018. The authors thank the editors of the Cardozo Law Review for their helpful edits and comments, as well as Toby Chaiken for her help analyzing statistics cited in this Article. We are grateful to Judge Weinstein for inspiring us to write this Article and for his insight and assistance along the way.
[2] See Comm. on Codes of Conduct, Judicial Conference of the U.S., Code of Conduct For Judicial Employees 6 (2019), https://www.uscourts.gov/sites/default/files/vol02a-ch03_0.pdf [https://perma.cc/M7UE-25D2] (“A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. . . . A former judicial employee should observe the same restrictions . . . except as modified by the appointing authority”); Fed. Judicial Ctr., Maintaining the Public Trust: Ethics for Judicial Law Clerks 5 (4th ed. 2018) (interpreting Canon 3(D) to mean that law clerks “have a strict obligation to keep this information confidential, unless your judge specifically authorizes you to disclose it”); see also Comm. on Codes of Conduct, Judicial Conference of the U.S., Code of Conduct For United States Judges 17 (2019) (generally permitting judges to engage in extrajudicial activities, including law related academic work).
[3] Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007) (“Sentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.”); Chief Justice John G. Roberts Jr., 2016 Year-End Report on the Federal Judiciary 5 (2016) (“Most district judges agree that sentencing is their most difficult duty.”).
[4] Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 225 (1993) (“From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion.”).
[5] 18 U.S.C. § 3551 (Supp. IV 1986); United States v. Booker, 543 U.S. 220, 245–46 (2005) (explaining that the previously mandatory Guidelines ranges were no longer binding on judges and were now “effectively advisory”).
[6] U.S. Sentencing Comm’n, 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics, at S-53 (2017) [hereinafter U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2017/2017SB_Full.pdf [https://perma.cc/TLC3-VC37].
[7] Id. at S-73–S-78. For example, in 2017 in the Southern District of California, a Guidelines sentence was imposed in fifteen percent of cases, and in the Eastern District of New York the Guidelines were followed in 23.4% of cases. Id.
[9] See Ryan W. Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, 63 Stan. L. Rev. 1 (2010) (reviewing sentences in the District of Massachusetts and finding disparities among judges); see also Mosi Secret, Wide Sentencing Disparity Found Among U.S. Judges, N.Y. Times (Mar. 5, 2012), http://www.nytimes.com/2012/03/06/nyregion/wide-sentencing-disparity-found-among-us-judges.html [https://perma.cc/9VF8-BBPU] (“A new analysis of hundreds of thousands of cases in federal courts has found vast disparities in the prison sentences handed down by judges presiding over similar cases, raising questions about the extent to which federal sentences are influenced by the particular judges rather than by the specific circumstances of the cases.”); U.S Sentencing Comm’n, Intra-City Differences in Federal Sentencing Practices: Federal District Judges in 30 Cities, 2005–2017, at 7 (2019) (“In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”).
[10] Scott, supra note 9, at 21–22 (noting problems with studying individual judges’ sentencing practices because of the Sentencing Commission’s policy of not releasing judge-specific data).
[11] See generally Marvin E. Frankel, Criminal Sentences: Law Without Order (1972) (criticizing how widely sentences varied based on factors like region and race and calling for the creating of a commission on sentencing to reduce this disparity).
[12] We refer to him often through the Article as “the Judge.”
[13] United States v. Kandirakis, 441 F. Supp. 2d 282, 333 n.76 (D. Mass. 2006) (describing the practice of Judge Nancy Gertner to “articulat[e] completely the grounds for her sentences in fully developed sentencing opinions”); Nancy Gertner, Opinions I Should Have Written, 110 Nw. U. L. Rev. 423, 437–38 (2016) [hereinafter Gertner, Opinions I Should Have Written] (“I wish I had written more sentencing opinions, even more than I did. . . . Some district court judges are writing about what they are doing [about sentencing]—Judges Mark Bennett, Lyn Adelman, John Gleason [sic], Jack Weinstein, to name a few—but their decisions are not widely known.”).
[14] See, e.g., Harry Siegel, A Righteous Ruling for Freedom: Judge Jack Weinstein Calls Out Criminal Reincarceration for Smoking Pot, N.Y. Daily News (July 7, 2018, 5:00 PM), https://www.nydailynews.com/opinion/ny-oped-judge-weinstein-marijuana-20180706-story.html [https://perma.cc/E6VQ-538B]; Ed Whelan, This Day in Liberal Judicial Activism, Nat’l Rev. (Sept. 26, 2018, 8:00 AM), https://www.nationalreview.com/bench-memos/this-day-in-liberal-judicial-activism-september-26 [https://perma.cc/KNA9-T58L] (“Weinstein, alas, badly obscures the essential facts of the case.”).
[15] See, e.g., United States v. Boakye, No. 11-CR-386, 2011 WL 5908938, at *2 (E.D.N.Y. Nov. 23, 2011) (finding that Mr. Boakye, who had three children and a wife in his country, and who committed a drug importation offense to obtain money for his daughter’s medical treatment, was unlikely to recidivate once he left the United States and was reunited with his family); United States v. Florez Parra, No. 14-CR-332, 2015 WL 105885, at *2 (E.D.N.Y. Jan. 7, 2015) (imposing a sentence of time served on defendant convicted of reentering the United States illegally, where the Guidelines recommended fifteen to twenty-one months of incarceration).
[16] Jeffrey S. Sutton, An Appellate Perspective on Federal Sentencing After Booker and Rita, 85 Denv. U. L. Rev. 79, 79–81 (2007).
[17] As noted in the Foreword, this Article relies on Judge Weinstein’s published record and does not consider any confidential information we learned during our respective clerkships. We note this again here to be upfront about our personal bias in favor of Judge Weinstein, but we have attempted to put that aside for this Article.
[18] See, e.g., Jack B. Weinstein, Some Reflections on Seven Lean Years of Guidelines Sentencing, 8 Fed. Sent’g Rep. 12, 12 (1995) [hereinafter Weinstein, Some Reflections on Seven Lean Years of Guidelines Sentencing] (“Those of us who face real people caught up in the justice system dream of the day when the Sentencing Commission abandons the overly harsh and mechanistic, jargon-ridden (and mandatory) system now in place. The federal guidelines are generally considered a failure because—unlike many state equivalents—they have largely banished humanity from the sentencing process.”) (internal citations omitted).
[19] Id. See also Jack B. Weinstein, Notes on Uniformity and Individuality in Mass Litigation, 64 DePaul L. Rev. 251, 255–57 (2015) [hereinafter Weinstein, Notes on Uniformity and Individuality in Mass Litigation] (“But at least we have now been allowed to avoid the hypocrisies involved in mechanical uniformity in sentencing, and we are seeking some consensus in our approaches to reducing incarceration and avoiding unnecessary destruction of lives and communities by excessive punishment.”).
[20] See, e.g., Jack B. Weinstein, The Effect of Sentencing on Women, Men, the Family, and the Community, 5 Colum. J. Gender & L. 169, 175 (1996) [hereinafter Weinstein, The Effect of Sentencing on Women, Men, the Family, and the Community] (“The Guidelines’ prohibition against explicit consideration of sex is not nearly as disturbing as the prohibition against consideration of ‘family ties and responsibilities.’ This prohibition wreaks havoc on some women, some men, single parents generally, and particularly on children. In many cases, it makes it difficult for the judge to comply with other statutory mandates that he or she impose a sentence ‘not greater than necessary’ to achieve the statutorily defined purposes of sentencing, primarily deterrence and rehabilitation.”).
[21] Jack B. Weinstein, Memorandum to Judges and Magistrates, Eastern District of New York, 5 Fed. Sent’g Rep. 298, 298 (1993) (“I need a rest from the oppressive sense of futility that these drug cases leave. . . . I have taken my name out of the wheel for drug cases. . . . I am just a tired old judge who has temporarily filled his quota of remorselessness.”).
[22] See generally In re Sentencing, 219 F.R.D. 262 (E.D.N.Y. 2004).
[23] Jeffrey B. Morris, Jack B. Weinstein: Judicial Entrepreneur, 69 U. Miami L. Rev. 393, 404 (2015) (“With his fifth decade on the bench more than half over, the 93-year-old judge continues to carry a full load of cases [and] to consistently write opinions more than one hundred pages long . . . .”)
[24] See, e.g., Alan Feuer, Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana, N.Y. Times (July 5, 2018), https://www.nytimes.com/2018/07/05/nyregion/brooklyn-judge-vows-not-to-send-people-back-to-prison-for-smoking-marijuana.html [https://perma.cc/E7Q2-3EDB] (“But in his order, Judge Weinstein said that locking people up again just for smoking pot—especially at a moment when laws and attitudes are changing—was not only a waste of time and money, but also had an implicit racial bias.”); Alan Feuer, This Judge Defends ‘Unredeemables’ Even as He Sends Them to Prison, N.Y. Times (Dec. 8, 2017), https://www.nytimes.com/2017/12/08/nyregion/this-judge-defends-unredeemables-even-as-he-sends-them-to-prison.html [https://perma.cc/EJ48-4VY6] (“Part mea culpa, part criminological critique, the order complained not only about what are known as mandatory minimum sentences, but also about ‘a lack of sentencing alternatives’ for young violent criminals who are often written off, he said, as ‘society’s unredeemables.’”).
[25] Kate Stith, Weinstein on Sentencing, 24 Fed. Sent’g Rep. 214, 215 (2012) (“Early on he became a judicial Houdini in freeing himself from various Guidelines mandates. Reading the Sentencing Reform Act to allow departures in areas not specifically contemplated by the Commission, he departed on the basis of physical illness, being a single parent, reduced mental capacity, insufficient evidence that the drug courier defendants knew that the drug in the balloons they’d swallowed was heroin, and many more grounds not addressed in the Guidelines.” (internal citations omitted)).
[26] Alan Feuer, A Second Chance for an Ivy League ISIS Recruit, N.Y. Times (June 28, 2018), https://www.nytimes.com/2018/06/28/nyregion/isis-recruit-fbi.html [https://perma.cc/52FH-ABYP] (describing a sentencing hearing before Judge Weinstein as “unusual” and “that, in the iconoclastic jurist’s typical fashion, was part judicial process, part legal seminar”).
[27] See, e.g., United States v. Doe, 323 F. Supp. 3d 368, 378 (E.D.N.Y. 2018) (“Two experts on Islamic extremism, Seamus Hughes and Moustafa Ayad, testified about defendant’s reduced risk of recidivism and the special conditions needed to supervised release that would be useful in preventing [the defendant] from reoffending.”); United States v. D.W., 198 F. Supp. 3d 18, 38–40 (E.D.N.Y. 2016) (considering the testimony of medical and mental health experts).
[28] See, e.g., United States v. Kennedy, 86 F. Supp. 3d 531, 535 (E.D.N.Y. 2018) (“There are programs available in the Eastern District of New York to assist individuals, like Mr. Kennedy, with documented histories of substance abuse, and help them reenter their communities at the end of a prison term.”); United States v. K, 160 F. Supp. 2d 421, 438 (E.D.N.Y. 2001) (“The current federal sentencing regime supports the utilization of alternatives to incarceration; specifically, pretrial diversion by federal prosecutors and sentencing alternatives to incarceration by judges, which include probation, home confinement, electric monitoring and the S.O.R.S. program.”); United States v. Rivera, 281 F. Supp. 3d 269, 273 (E.D.N.Y. 2017) (“More court sentencing alternatives and community programming . . . are necessary to discourage gang violence, as well as to assist defendants attempting to escape their environs after a conviction or sentence. Lengthy mandatory minimums, and the penological theory of incapacitation continue to be justified by a lack of sentencing alternatives for society’s ‘unredeemables.’”).
[29] See, e.g., Doe, 323 F. Supp. 3d 368 (reviewing the approaches of various countries to the problem of punishing citizens who joined ISIS); cf. Stephen Breyer, The Court and the World: American Law and the New Global Realities 4 (2015) (“[J]udicial awareness can no longer stop at the border.”).
[30] At Judge Weinstein’s request, the U.S. Sentencing Commission released these numbers to the Judge. The Commission’s report is attached as an Appendix. See Appendix A. We are grateful to Glenn R. Schmitt, Director of the Office of Research and Data, and his staff for their helpful analysis.
[31] We ended our research for this Article in May 2019, but the flow of material on sentencing, by Judge Weinstein and others, continues at a high rate. See, e.g., U.S. Sentencing Comm’n, 2018 Annual Report, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2018/2018-Annual-Report.pdf [https://perma.cc/KHP5-F2FH].
[32] See David Luban, Heroic Judging in an Antiheroic Age, 97 Colum. L. Rev. 2064, 2064 (1997) (“Judge Weinstein has long seemed a heroic, larger-than-life figure to me, surely one of the great judges of my lifetime . . . .”); see also Stith, supra note 25 (“Critics and fans alike have sometimes made the mistake of thinking that Judge Weinstein wears rose-colored glasses, or that he is ‘soft’ on crime, or that he’s just got this big heart that’s spilling over with no reason or analysis. It is true that Jack Weinstein is humane and empathetic, and that he has great social insight and compassion. He brings these qualities to bear in his judging. But he also brings to bear piercing intelligence that untangles complexity, and integrity that rebukes deception. He comprehends the whole of the law, and never fails to explain his reasoning under the law.”).
[33] Orin Kerr, Second Circuit Clerks, Get Ready: Judge Weinstein’s New Opus Concluding Mandatory Minimum for Child Porn Distribution is Unconstitutional (at Least for Younger Defendants), Volokh Conspiracy (May 20, 2011, 4:33 PM), http://volokh.com/2011/05/20/second-circuit-clerks-get-ready-judge-weinstein-hands-down-new-opus-concluding-mandatory-minimum-for-child-porn-distribution-is-unconstitutional-at-least-for-younger-defendants [https://perma.cc/GX57-TWKW] (“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.”).
[34] Jessica A. Roth, The ‘New’ District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277, 279 (2019) (describing how “over the last decade, a cohort of well-respected and experienced federal trial judges have engaged in an unmistakably public campaign for criminal justice reform”).
[36] Id. at 290, 291 n.60, 292, 294 (citing, as examples, Judge John Gleeson’s criticism of the overuse of incarceration and the enormous collateral consequences of conviction in his opinions; Judge Jed S. Rakoff criticizing the practice of mass incarceration in a 2015 article; Judge Raymond Dearie questioning the overuse of incarceration in a 2016 speech; and Judge Irene Keely testifying on behalf of the Judicial Conference to oppose mandatory minimum sentencing).
[39] 18 U.S.C. § 3553(a)(6) (2012) (directing courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”).
[40] United States v. Booker, 543 U.S. 220, 253 (2005) (“Congress’ basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.”).
[41] See, e.g., Stith & Koh, supra note 4; Kevin Cole, The Empty Idea of Sentencing Disparity, 91 Nw. U. L. Rev. 1336 (1997); Lynn Adelman & Jon Deitrich, Marvin Frankel’s Mistakes and the Need to Rethink Federal Sentencing, 13 Berkeley J. Crim. L. 239 (2008); Mark Osler, Policy, Uniformity, Discretion, and Congress’s Sentencing Acid Trip, 2009 BYU L. Rev. 293 (2009); Sutton, supra note 16.
[42] See, e.g., Michael M. O’Hear, The Original Intent of Uniformity in Federal Sentencing, 74 U. Cin. L. Rev. 749, 753 (2006) (“Uniformity resonates with our most basic instincts about the rule of law: of course, the similarly situated should be treated the same.”).
[43] See, e.g., Sutton, supra note 16, at 79–80 (“The other set of truths goes something like this: When it comes to federal criminal laws, the National Government is one sovereign and there thus ought to be some parity, from one federal courthouse to the next, in sentencing practices for violations of the same criminal laws by individuals with similar criminal records.”).
[44] O’Hear, supra note 42, at 750.
[46] U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics, supra note 6.
[47] See supra note 30. The Commission’s summary report from 2006 through 2017 is attached as Appendix A. The yearly reports, from 2006 through 2017, are on file with the authors.
[50] We were provided with mean and median sentences only. We did not have underlying data or standard deviations, which would have allowed for reliable analysis of the data.
[56] Cf. Weinstein, The Effect of Sentencing on Women, Men, the Family, and the Community, supra note 20.
[57] United States v. Arroyo, 312 F. Supp. 3d 347, 350 (E.D.N.Y. 2018) (“It should be noted that prison time will be exceptionally hard for this defendant. He is of slight build.”).
[58] United States v. Smith, 321 F. Supp. 3d 405 (E.D.N.Y. 2018) (“[There is a] compelling need for the defendant to take his child to and from school. . . . He will be released from prison about the time that his son begins school for the year.”).
[59] United States v. Pinski, No. 97-CR-564, 2008 WL 5273965, at *2 (E.D.N.Y. Dec. 18, 2008) (“As a result of this conviction, he has lost his job and his engagement to be married has been broken.”).
[60] Cf. Model Penal Code: Sentencing § 1.02.2 (Am. Law. Inst., Proposed Final Draft 2017) (“It is possible, but not desirable, to set formalistic markers for uniform punishments.”).
[61] Pub. L. No. 98-473, ch. II, 98 Stat. 1837 (codified at 18 U.S.C. §§ 3551–3673 (Supp. IV 1986)); 28 U.S.C. §§ 991–998 (Supp. IV 1986); S. Rep. No. 98-225 (1983) as reprinted in 1984 U.S.C.C.A.N. 3182, 3235; 28 U.S.C. § 991(b)(1)(B) (Supp. IV 1986); see also Stephen G. Breyer, The Original U.S. Sentencing Guidelines and Suggestions for a Fairer Future, 46 Hofstra L. Rev. 799, 800 (2018) (explaining that one of the goals of the introduction of the Guidelines was “increased fairness where people would be treated more alike”).
[62] 18 U.S.C. § 3551 (Supp. IV 1986).
[63] Jack B. Weinstein, A Trial Judge’s First Impression of the Sentencing Guidelines, 52 Alb. L. Rev. 1, 2 (1987–88) [hereinafter Weinstein, A Trial Judge’s First Impression of the Sentencing Guidelines] (“The guidelines are not rigid mandates. By providing for departures and permitting alternatives to imprisonment, they continue to promote individual justice. So long as the guidelines provide sufficient flexibility to permit judges to consider both the crime and the individual as a whole, we can live with them. They are a practical, sensible approach to a longstanding problem.” (emphasis added)). Many judges at the time shared Judge Weinstein’s concern over disparity in sentencing. See Jon O. Newman, A Better Way to Sentence Criminals, 63 A.B.A. J. 1562 (1977) (criticizing wide disparity in sentencing across the country and proposing the creation of a sentencing commission to reduce this disparity); Frankel, supra note 11 (criticizing wide disparity in sentencing across the country and proposing the creation of a sentencing commission to reduce this disparity). Judge Frankel’s 1972 book is widely regarded to be one of the catalysts for the creation of the Sentencing Commission. Jon O. Newman, The Federal Sentencing Guidelines: A Good Idea Badly Implemented, 46 Hofstra L. Rev. 805, 805–06 (2018) [hereinafter Newman, The Federal Sentencing Guidelines: A Good Idea Badly Implemented].
[64] See Weinstein, A Trial Judge’s First Impression of the Sentencing Guidelines, supra note 63, at 10.
[68] Jack B. Weinstein, A Trial Judge’s Second Impression of the Federal Sentencing Guidelines, 66 S. Cal. L. Rev. 357, 363–64 (1992).
[70] Id. at 365 (“One would think that most Americans, judges and legislators as well as members of the Sentencing Commission, would be embarrassed by this implacable urge to incarcerate, by the overwhelming desire to ignore the good that people have done and probably will do.”).
[72] See infra notes 73–83. Many of these cases in which Judge Weinstein departed from the Guidelines are listed in Professor Stith’s Article on this subject. See Stith, supra note 25. We have cited to these cases and added other cases in which Judge Weinstein departed from the Guidelines.
[73] United States v. Concepcion, 795 F. Supp. 1262, 1282 (E.D.N.Y. 1992) (departing from the Guidelines for defendants who were convicted of fraudulently obtaining welfare benefits, and noting that although the Sentencing Commission did not contemplate family status as being a ground for departure from the Guidelines, that policy statement “does not address the more critical problem of whether the court can consider the welfare of her child or children in determining the sentence. . . . Insofar as the absence of the mother may have profoundly deleterious effects on her child or children, their care must be relevant in considering whether there should be incarceration or other forms of punishment”), disapproved of by United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995); see also United States v. McGee, 802 F. Supp. 843, 844–45 (E.D.N.Y. 1992) (departing from a Guidelines sentence in part because “[h]er nephew is dependent upon her support for his safety, health and education. Incarceration away from home would damage both defendant and the child she is caring for. . . . The need to deter the importation of narcotics is mitigated here by the goals of rehabilitating defendant and maintaining the welfare of family and child”).
[74] United States v. Perez, 756 F. Supp. 698, 698 (E.D.N.Y. 1991) (departing from the Guidelines, noting, “[t]he Commission did not take into account the emotional blow dealt a mother who gives birth to a child while she is in custody, gives up her infant son to relatives because she cannot adequately care for it during her incarceration, and then is informed, while still in jail, of his sudden and inexplicable death”).
[75] United States v. Cotto, 793 F. Supp. 64, 66 (E.D.N.Y. 1992) (departing downward where defendant’s borderline intelligence constituted a mental condition warranting departure, a factor which, among others, was “not adequately taken into account by the Sentencing Commission in formulating the Guidelines”); see also United States v. Liu, 267 F. Supp. 2d 371 (E.D.N.Y. 2003) (finding that a gambling addiction constituted a significantly reduced mental capacity under the Guidelines, even though it was not captured by the four definitions of mental capacity, and granting a downward departure).
[76] United States v. Ramirez, 792 F. Supp. 922, 923 (E.D.N.Y. 1992) (“The defendant’s lack of guidance, in combination with other factors, is a proper basis for a downward departure.”).
[77] United States v. Velasquez, 762 F. Supp. 39, 40 (E.D.N.Y. 1991) (departing from the Guidelines because defendant’s “metastasized cancer is a serious, life-threatening illness, which constitutes an extraordinary physical impairment as that term is defined in the guidelines”); see also United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993) (“A departure downward is required on the grounds of this defendant’s poor health and vulnerability.”).
[78] United States v. Arize, 792 F. Supp. 920, 921 (E.D.N.Y. 1992) (departing downward where defendant did not know she was pregnant when she swallowed drugs for importation into the United States, because a long period of incarceration would likely result in a loss of custody for defendant); see also United States v. Pokuaa, 782 F. Supp. 747, 748 (E.D.N.Y. 1992) (departing where a pregnant defendant would likely have lost custody of her unborn child if she were to receive a Guidelines custodial sentence exceeding a year, because “potential permanent loss of parental rights is a basis for departing from the guidelines”).
[79] United States v. Carbonell, 737 F. Supp. 186, 187 (E.D.N.Y. 1990) (departing in a narcotics case because defendant’s “sole motivation . . . was to help out a fellow Colombian from the same hometown who was down on his luck. . . . While [defendant’s] actions cannot be condoned, he did not act with what one would usually consider criminal intent. [He] was motivated wholly by a sense of obligation toward a person from the same town as he, who was experiencing financial hardship in a foreign country. The cohesiveness of first generation immigrant communities in the United States engenders loyalty, responsibility and obligation to others in the community, even if they are strangers. It is these sentiments that prompted [defendant’s] misguided behavior”).
[80] United States v. Agu, 763 F. Supp. 703, 703 (E.D.N.Y. 1991) (departing from the Guidelines because defendant’s “valuable service to the country in the armed forces, the unfortunate circumstances under which he failed to obtain his right to citizenship despite this service, and what will probably be the permanent separation from wife and his American born child all present ‘mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described’” (citation omitted)).
[81] United States v. Gaviria, 804 F. Supp. 476, 479–80 (E.D.N.Y. 1992) (departing from the Guidelines where the defendant had been severely abused by her husband and assisted him in a drug deal out of fear of his violence, noting that “[t]he Sentencing Guidelines fail to account for these endemic sociological and psychological realities. Nowhere in the Guidelines’ formulaic mechanism is there room to consider how the facts of the life of a woman abused in this fashion should bear upon her sentence. . . . A downward departure from the Guideline range is warranted when a woman’s status as a victim of systematic physical and emotional abuse substantially lessens her blameworthiness, notwithstanding her legal guilt”).
[82] United States v. Cordoba-Hincapie, 825 F. Supp. 485, 534 (E.D.N.Y. 1993) (departing downward from the Guidelines and sentencing defendants as though they had imported cocaine as they believed, instead of the higher range applicable to importation of heroin, for which defendants lacked the necessary mens rea); see also United States v. Ekwunoh, 813 F. Supp. 168, 180 (E.D.N.Y. 1993) (departing from the Guidelines and imposing a lesser sentence based on the quantity of narcotics defendant had intended to possess as opposed to the quantity found, in part because she was acting under the dominion of her boyfriend), vacated, 12 F.3d 368 (2d Cir. 1993).
[83] See, e.g., United States v. Shonubi, 802 F. Supp. 859, 862 (E.D.N.Y. 1992) (holding that the sentencing enhancement for perjury was not mandatory, explaining that “[n]o rigid formula devised by a distant Sentencing Commission on the basis of statistics can fully account for this human frailty of the mind and psyche. The generalized rule must bow to the uniqueness of the individual in sentencing”), rev’d, 998 F.2d 84 (2d Cir. 1993); United States v. Abbadessa, 848 F. Supp. 369, 381 (E.D.N.Y. 1994) (departing from the Guidelines and determining that they were not binding in this case), vacated sub nom. United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995), and vacated sub nom. 50 F.3d 3 (2d Cir. 1995), and vacated sub nom. 54 F.3d 765 (2d Cir. 1995); Ekwunoh, 813 F. Supp. at 180 (departing from the Guidelines because defendant could not reasonably have foreseen the quantity of narcotics in her possession), vacated, 12 F.3d 368 (2d Cir. 1993).
[84] Joseph B. Treaster, 2 Judges Decline Drug Cases, Protesting Sentencing Rules, N.Y. Times (Apr. 17, 1993), http://www.nytimes.com/1993/04/17/nyregion/2-judges-decline-drug-cases-protesting-sentencing-rules.html?mcubz=1 [https://perma.cc/H6NL-3GRM].
[85] Jack B. Weinstein Limits on Judges’ Learning, Speaking, and Acting: Part II Speaking and Part III Acting, 20 U. Dayton L. Rev. 1, 41 (1994) [hereinafter Weinstein, Limits on Judges’ Learning, Speaking, and Acting: Part II Speaking and Part III Acting] (“Senior status offers the advantage of permitting the judge to refuse to accept cases where his sense of injustice is offended by ruling law. A public statement of reasons is appropriate.”).
[86] Jack B. Weinstein, Learning, Speaking, and Acting: What Are the Limits for Judges?, 77 Judicature 322, 328 (1994).
[87] Jack B. Weinstein, Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice, 32 Fordham Urb. L.J. 131, 160 (2004) [hereinafter Weinstein, Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice].
[88] He concluded that the Guidelines are in part responsible for the enormous prison population in the United States and have “unnecessarily destroyed lives of defendants and their families.” Jack B. Weinstein, Standing Down from the War on Drugs, 75 N.Y. St. B. J. 55 (2003) (“Our policies constitute a form of cannibalism. We are eating the lives of many of our young people, particularly in minority communities.”).
[89] See Weinstein, Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice, supra note 87, at 132–33 (considering the options a federal trial judge can exercise when a policy or law violates their sense of justice, and explaining, “[t]he judge must decide: does this law violate the essence of my duty to self and humanity. The process is gut wrenching. To society it is often confounding. The battle against fundamental injustice is now being waged in trial courtrooms in the confrontation between Federal Sentencing Guidelines designed to punish by those afar without understanding the unnecessary cruelties that result when real human beings before the court are treated as cyphers rather than individuals. That struggle is not yet resolved, though unrelenting pressure by trial judges and others for rationality and justice may be having some effect” (internal citations omitted)); id. at 166–67 (“Judges who see the system in operation have an obligation to advise the public of the facts as they observe them. A judge who believes he or she is called upon to commit an immoral act should make that view known, and the judge’s colleagues should respect his or her decision to ‘go public.’”); Weinstein, Limits on Judges’ Learning, Speaking, and Acting: Part II Speaking and Part III Acting, supra note 85, at 12 (“[I]n our democracy, the people have a right to be informed when there is as much hypocrisy and sacrifice of lives and money as there is in our sentencing and drug laws. Judges who see the system in operation have an obligation to advise the public of the facts as they observe them.”); Jack B. Weinstein, Learning, Speaking, and Acting: What Are the Limits for Judges?, 77 Judicature 322, 328 (1994) (“Freedom of expression also extends to trial judges. I was, therefore, somewhat saddened when Chief Justice Rehnquist, in a speech to federal judges, upbraided Judge Whitman Knapp and me for expressing our reasons for not taking minor drug cases. (In a subsequent letter to Judge Knapp, the chief justice indicated he had not been aware that we were relying on our senior status right to select cases.)”); Jack B. Weinstein, Standing Down from the War on Drugs, 75 N.Y. St. B. J. 55 (2003) (“The over-sentencing of drug offenders has been a major drain on our social resources, running into the billions of dollars each year. As a direct result of stiff mandatory-minimum sentencing, rigid federal guidelines, and three-strikes legislation in many states, the number of prisoners in America has swelled to monstrous proportions.”); Weinstein, Some Reflections on Seven Lean Years of Guidelines Sentencing, supra note 18 (“Those of us who face real people caught up in the justice system dream of the day when the Sentencing Commission abandons the overly harsh and mechanistic, jargon-ridden (and mandatory) system now in place. The federal guidelines are generally considered a failure because—unlike many state equivalents—they have largely banished humanity from the sentencing process.” (internal citations omitted)); United States v. Khan, 325 F. Supp. 2d 218, 224 (E.D.N.Y. 2004) (“The opinions of the learned judges finding the Guidelines unconstitutional are well reasoned and entitled to great respect. Many federal judges who believe the Guidelines unnecessarily cruel to defendants and their families, unduly expensive to the taxpayers who pay unnecessary billions for our bloated penitentiary system, and a violation of separation of powers under the Constitution would applaud the conversion of the mandatory restrictive Guidelines into discretionary guidelines in fact.”).
[90] Weinstein, Some Reflections on Seven Lean Years of Guidelines Sentencing, supra note 18 (“Every person has a right to be treated as an individual, and to know that he or she has been so treated.”).
[91] United States v. Booker, 543 U.S. 220, 245–46 (2005). Or as Judge Weinstein put it: “The Supreme Court has sanitized that cesspool with Justice Stephen Breyer’s opinion in Booker, turning the ukases of the Sentencing Commission into mere suggestions.” Weinstein, Notes on Uniformity and Individuality in Mass Litigation, supra note 19, at 255.
[92] Booker, 543 U.S. at 245–46; see also United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (“It is now, however, emphatically clear that the Guidelines are guidelines—that is, they are truly advisory. A district court may not presume that a Guidelines sentence is reasonable; it must instead conduct its own independent review of the sentencing factors, aided by the arguments of the prosecution and defense.” (footnote omitted)).
[93] Kimbrough v. United States, 552 U.S. 85, 101 (2007).
[94] See Gall v. United States, 552 U.S. 38, 49 (2007). This is because the Guidelines are presumed to be “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.” Id. at 46; see also Rita v. United States, 551 U.S. 338, 349 (2007) (“[T]he Commission took an ‘empirical approach,’ beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” (internal citations omitted)).
[96] Kimbrough, 552 U.S. at 87; accord Pepper v. United States, 562 U.S. 476, 490 (2011) (“Our post-Booker opinions make clear that, although a sentencing court must ‘give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well.’” (quoting Kimbrough, 552 U.S. at 101)); Kimbrough, 552 U.S. at 113 (Scalia, J., concurring) (“[T]he district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines.”).
[97] 18 U.S.C. § 3553(a) (2012).
[98] Gall, 552 U.S. at 49–50 (emphasis added); 18 U.S.C. § 3553(a).
[100] Id. at 51 (The district court’s sentence is reviewed under the abuse-of-discretion standard, and one of the grounds on which a sentence may be overturned is the sentencing court’s failure “to consider the § 3553(a) factors.”).
[101] A study analyzing all criminal cases completed in federal courts between 2007 and 2012 found “extensive and hard-to-explain variations in the sentencing practices of district court judges working in many different districts.” Syracuse Univ., Wide Variations Seen in Federal Sentencing, Transactional Recs. Access Clearinghouse (2016), http://trac.syr.edu/whatsnew/email.120305.html [https://perma.cc/JX6X-B5X6]; see also Secret, supra note 9 (citing the study and concluding “[i]n the Eastern District of New York, for example, the 28 judges in the study delivered a median sentence of 24 months for drug cases in the past five years. But there were disparities. . . . The Eastern District ranked 17th among more than 80 districts in drug sentencing disparities”); U.S. Sentencing Comm’n, Report to the Congress: Continuing Impact of United States v. Booker on Federal Sentencing 98 (2012). This disparity is even evident within different circuits: for example, nationally, 49.1% of all sentences issued were within the Guidelines range in the fiscal year 2017, and 47.9% of sentences were below the Guidelines range. U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics, supra note 6. In the Second Circuit, however, only 30.9% of sentences issued were within the Guidelines range, and 67.3% of sentences were below the Guidelines range. Id. at S-56. Certainly, multiple factors could contribute to this discrepancy. See supra Section II.A. But the discretion judges have in sentencing must play a significant role in such regional differences in sentencing.
[102] Weinstein, Notes on Uniformity and Individuality in Mass Litigation, supra note 19, at 255–56. The Commission itself has recognized that the post-Booker sentencing regime under the Guidelines has led to significant disparity in sentencing. See, e.g., U.S. Sent. Comm’n, Federal Register Notice of Final 2017 Priorities, https://www.ussc.gov/policymaking/federal-register-notices/federal-register-notice-final-2017-priorities [https://perma.cc/YUJ2-C3U2] (identifying as one of its policy priorities for 2017 “to study possible approaches to . . . simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities”). But see Remarks of Judge William Pryor at Scalia Law School, George Mason University, 29 Fed. Sent’g Rep. 278, 279 (2017) (proposing federal sentencing reform that “avoid[s] unwarranted [sentencing] disparities . . . [but] [d]epartures based on a judge’s disagreement with a Commission policy reflected in a particular guideline would not be a proper basis for departure”); Newman, The Federal Sentencing Guidelines: A Good Idea Badly Implemented, supra note 63, at 812–13 (arguing that “[t]he Guidelines achieved some reduction in sentence disparity. . . . [M]y impression is that some sentences vary less from the sentences imposed on similarly situated defendants than would have occurred before the Guidelines,” but admitting that “this is difficult to measure”).
[103] As contemplated in 18 U.S.C. § 3553(a)(1).
[104] As set forth in 18 U.S.C. § 3553(a)(2). See generally In re Sentencing, 219 F.R.D. 262, 264–65 (E.D.N.Y. 2004).
[105] Gall v. United States, 552 U.S. 38, 50 (2007).
[106] It has been Judge Weinstein’s practice to hold hearings on facts influencing sentencing since 1977. That year, Daniel Fatico pled guilty to conspiracy to receive stolen goods in interstate commerce, related to a truck hijacking at Kennedy Airport. At his sentencing hearing, the government sought to introduce testimony from an FBI informant that would link Mr. Fatico to organized crime, the Gambino family. United States v. Fatico, 441 F. Supp. 1285 (E.D.N.Y. 1977). Judge Weinstein’s decision to exclude this testimony as hearsay was reversed by the Court of Appeals for the Second Circuit. United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978). On remand, Judge Weinstein heard testimony from ten government witnesses at an evidentiary sentencing hearing. He concluded based on the government’s evidence that Mr. Fatico was an active member of an organized crime family. He relied on this factor when imposing a four-year term of incarceration, noting that “[w]ere it not for the organized crime issue,” he would have imposed a lesser sentence. United States v. Fatico, 458 F. Supp. 388, 412 (E.D.N.Y. 1978). Mr. Fatico appealed his sentence, and the government requested that the Court of Appeals for the Second Circuit “reject . . . the entire concept of a [sentencing] hearing, . . . which apparently is now called in the criminal bar a ‘Fatico hearing.’” United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979). The Court of Appeals for the Second Circuit affirmed the sentencing decision, and in a footnote expressed that “although we do not believe that a sentencing hearing will be necessary every time a defendant disputes facts or statements in the presentence report, we certainly would not hold it an abuse of discretion on the part of a district judge to hold such a hearing where there is reason to question the reliability of material facts having in the judge’s view direct bearing on the sentence to be imposed.” Id. Judge Weinstein—and many other courts—have been holding Fatico sentencing hearings ever since.
[108] See, e.g., infra Section II.B.1.
[109] Arnold H. Lubasch, Jack Weinstein: Creative U.S. Judge Who Disdains Robe and High Bench, N.Y. Times (May 28, 1991), https://www.nytimes.com/1991/05/28/nyregion/jack-weinstein-creative-us-judge-who-disdains-robe-and-high-bench.html [https://perma.cc/H5CK-XV5M].
[110] See In re Sentencing, 219 F.R.D. 262, 264–65 (E.D.N.Y. 2004). The recordings are stored in the district court’s files and can be included in the record sent to the appellate court when a sentence is appealed.
[111] Pub. L. No. 108-21, 117 Stat. 650 (2003) (“[T]he court of appeals shall review de novo the district court’s application of the guidelines to the facts.”).
[113] See Sentencing, 219 F.R.D. at 264–65 (“The sentencing hearing normally requires that the defendant be observed for credibility, mental astuteness, physical characteristics, ability to withstand the rigors and dangers of incarceration, and a myriad other relevant factors. In many instances, it is necessary to observe the employer’s and familial ties to the defendant. A judge applies mental impressions of many tangible and intangible factors when imposing a sentence. . . . Many of these factors do not appear in the transcript.” (internal citations omitted)).
[114] But see United States v. Singh, 877 F.3d 107, 117 (2d Cir. 2017) (reversing and remanding a sentence as substantively unreasonable).
[115] See Sentencing, 219 F.R.D. at 265.
[116] United States v. DeMartino, 112 F.3d 75, 78 (2d Cir. 1997) (“[A] defendant has a constitutional right to be present when he is sentenced.”); United States v. Singh, 726 F. App’x 845, 849 (2d Cir. 2018), cert. denied, 138 S. Ct. 1602 (2018) (“[W]here there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment[,] the oral pronouncement must control.” (internal quotation marks and citation omitted)).
[117] 18 U.S.C. § 3553(c) (2012).
[118] Id. § 3553(c)(2). “Even though, pursuant to Booker, the Guidelines are no longer mandatory, the sentencing court must still adhere to the requirements of section 3553(c)(2).” United States v. E.L., 188 F. Supp. 3d 152, 169 (E.D.N.Y. 2019) (citing United States v. Jones, 460 F.3d 191, 196–97 (2d Cir. 2006)).
[119] U.S. v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc) (internal quotes and alterations omitted) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). See also Gall v. United States, 552 U.S. 38, 50 (2007) (“[The sentencing judge] must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). However, of the 66,873 federal cases in which sentences were imposed in the fiscal year 2017 throughout the United States, only 421 received a downward departure from the Guidelines range with Booker or 18 U.S.C. § 3553 cited as a reason for the departure. U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics, supra note 6, at S-71. That means that very few federal judges write out the § 3553 factors in their statements of reasons.
[120] United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir. 2006), abrogated in part on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007).
[121] See, e.g., Due Process Clause—Federal Sentencing Guidelines—Beckles v. United States, 131 Harv. L. Rev. 293, 302 (2017) (concluding “a system in which sentencing judges are required to provide more detailed explanations for their decisions could have benefits including reducing judges’ cognitive biases toward following the Sentencing Guidelines without further consideration, communicating respect for defendants and their participation in the criminal justice process, and contributing to the improvement of the Guidelines in the future”); Mathilde Cohen, When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach, 72 Wash. & Lee L. Rev. 483, 504–14 (2015) (explaining that judicial reason-giving has three central values: “participation, accountability, and accuracy,” and accountability specifically “encourages consistency,” but recognizing that “[t]here may be institutional, cognitive, and efficiency harms in systematically requiring judges to give reasons”).
[122] United States v. G.L., 305 F.R.D. 47, 48 (E.D.N.Y. 2015).
[123] 18 U.S.C. § 3553(a)(1) (2012).
[124] Id. § 3661 (emphasis added).
[125] U.S. Sentencing Guidelines Manual § 1B1.4 (U.S. Sentencing Comm’n 2018) (emphasis added). “A court is not precluded from considering information that the guidelines do not take into account in determining a sentence within the guideline range or from considering that information in determining whether and to what extent to depart from the guidelines.” Id. But the Guidelines Manual makes clear that “[s]ome policy statements do . . . express a Commission policy that certain factors should not be considered for any purpose, or should be considered only for limited purposes. See, e.g., Chapter Five, Part H (Specific Offender Characteristics).” Id. Chapter five specifies that “[a]lthough the court must consider ‘the history and characteristics of the defendant’ among other factors . . . in order to avoid unwarranted sentencing disparities the court should not give them excessive weight.” For example, a defendant’s age, and mental, emotional condition, or physical condition “may warrant a sentence outside the applicable guideline range if the characteristic, individually or in combination with other such characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” Other factors, like a defendant’s education, employment record, and family ties “are not ordinarily relevant in determining whether a departure is warranted.” Id. § 5H. Despite these strictures, however, “[d]istrict judges are . . . generally free to impose sentences outside the recommended range,” so long as they “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
[126] United States v. D.M., 942 F. Supp. 2d 327, 334 (E.D.N.Y. 2013) (quoting Williams v. New York, 337 U.S. 241, 246 (1949)).
[127] United States v. D.W., 198 F. Supp. 3d 18, 23–24 (E.D.N.Y. 2016).
[130] Id. at 26 (internal citation and quotation marks omitted).
[135] Id. at 66 (“The experts recognized that some inmates are more vulnerable than others and will have a particularly hard time adjusting to incarceration. As acknowledged by the BOP, several factors render an inmate especially susceptible to abuse while in prison. They include being perceived as gay, having been a victim of sexual abuse in the past, suffering from mental illness, and being a known sex offender, particularly against children. . . . An individual with any one of these characteristics is considered especially vulnerable to physical or sexual assault while incarcerated.”).
[136] Id. at 74 (“The problem of sexual and physical abuse in prison and the overuse of solitary confinement go hand in hand: often, the only means of protection available to vulnerable inmates is separation from the general population. Recently, the government has recognized the need to reduce both the prevalence of sexual abuse in BOP facilities and the use of restrictive housing to protect vulnerable inmates.”).
[137] Id. at 94 (“D.W. has a documented history of trauma, mental disorders, and depression. He repeatedly attempted suicide. He was diagnosed with ADHD, borderline personality disorder, severe depression, and post-traumatic stress disorder. He was prescribed, and continues to take, multiple psychotropic drugs. Spending substantial time in solitary confinement will severely aggravate D.W.’s already brittle psyche. Such conditions will substantially increase the probability of his death by suicide. At the very least, repeated stays in the SHU will further break the spirit of this highly traumatized person, making D.W.’s readjustment to society upon his eventual release from prison more unlikely, and increasing the risk he poses to the public.”).
[139] United States v. Powell, 249 F. Supp. 3d 617, 619 (E.D.N.Y. 2017).
[142] Id. at 625–28 (“[Mr. Powell] grasps information regarding the roles of his attorney, the prosecutor, the judge, and a jury and he understands the nature of the charges that have been filed against him.” (internal quotation marks omitted)).
[144] Id. at 8–10 (“If defendant went to trial the proof against him would be overwhelming. The result would be a mandatory 10–year minimum sentence. The court made it clear that it believed a 10-year sentence would result from a gross overcharge, and a five-year sentence would result from a substantial overcharge by the prosecution.”).
[146] United States v. D.W., 198 F. Supp. 3d 18, 23 (E.D.N.Y. 2016).
[147] See supra Section II.B.1.a.
[148] United States v. Lawrence, 254 F. Supp. 3d 441, 449 (E.D.N.Y. 2017).
[152] Id. at 447 (“[A] long prison term increases the danger to the prisoner while he is in prison. . . . Mental health treatment available outside of prison, under the supervision of probation, would probably be more beneficial to him personally, and to the community, than a long prison term.”).
[155] United States v. Curry, No. 15-CR-382, 2017 WL 713556, at *1 (E.D.N.Y. Feb. 22, 2017).
[157] Id. at *4 (internal citations omitted).
[158] In a similar vein, the Judge has recognized that if the offense committed was sexual in nature, the defendant is likely to be targeted in prison. See, e.g., United States v. Arroyo, 312 F. Supp. 3d 347, 350 (E.D.N.Y. 2018) (“It should be noted that prison time will be exceptionally hard for this defendant. He is of slight build. When other prisoners find out about his crime, some will attack him for sexual reasons or to punish him. Protection will probably require long periods in solitary confinement, increasing pressure for suicide. The ten-year minimum is too long for this defendant.”).
[159] United States v. Levy, No. 16-CR-270, 2017 WL 4381398 (E.D.N.Y. Aug. 9, 2017), aff’d as modified United States v. Levy, 738 Fed. App’x 724 (2d Cir. 2018).
[162] Id. at *5. See also United States v. Harris, 349 F. Supp. 3d 221, 223 (E.D.N.Y. 2018) (imposing a sentence of six months—well below the Guidelines range of thirty-three to forty-one months—in part because “[a]s a former prison guard, she is likely to be in danger from some inmates” if incarcerated for a long period of time) (citing United States v. D.W., 198 F. Supp. 3d 18, 23 (E.D.N.Y. 2016)).
[163] United States v. Bannister, 786 F. Supp. 2d 617, 653 (E.D.N.Y. 2011) (“Incarceration affects the lives not only of prisoners but of those around them. Families of prisoners face higher rates of divorce, separation, domestic violence, and developmental and behavioral problems among children than the families of non-prisoners. Prisoners’ children may experience numerous consequences of incarceration, including loss of contact with the incarcerated parent, strained relationships with caregivers, a diminished sense of stability and safety, economic insecurity, social stigma, shame, increased risk of drug involvement, and susceptibility to adverse peer pressure and risky behavior.” (internal citations omitted)).
[164] “D.W. suffered a childhood marked by extreme abuse. Time and again, the system failed him; he was exposed to sexual assault as a child in New York City’s foster care program and then as a young adult in New York State’s prisons.” D.W., 198 F. Supp. 3d at 145.
[165] Id. at 69 (citing Brief for Amicus Curiae Washington Lawyers’ Committee for Civil Rights and Urban Affairs (Mar. 10, 2016), ECF No. 135) (“[S]tudies have confirmed many of the factors that mark an incoming prisoner as a target for sexual assault. Key among those is having been a victim of a prior sexual assault while imprisoned. . . . A rape victim would likely be forced to fight or submit to further sexual assault upon arrival at a BOP facility. Studies have found that ‘sexual abuse victims are more often inmates who are unwilling to fight.’ One of the consequences of this disturbing dynamic is clear: it is far more likely that an already victimized inmate will continue to be sexually abused in prison.’” (internal citations and quotation marks omitted)).
[166] D.W., 198 F. Supp. 3d at 105 (“[The expert] recognized that D.W.’s sexual fantasy, as well as his other symptoms including his addiction to child pornography, are likely to be linked to the extreme abuse he suffered as a boy.”).
[168] United States v. Butler, 264 F.R.D. 37, 38 (E.D.N.Y. 2010).
[172] United States v. King, No. 12-CR-390-1, 2013 WL 3466553, at *1 (E.D.N.Y. Mar. 27, 2013).
[174] See, e.g., United States v. Boakye, No. 11-CR-386, 2011 WL 5908938, at *2 (E.D.N.Y. Nov. 23, 2011) (finding that Mr. Boakye, who had three children and a wife in his home country, and who committed a drug importation offense to obtain money for his daughter’s medical treatment, was unlikely to recidivate once he left the United States and was reunited with his family); United States v. Eiflaar, 255 F. Supp. 3d 394, 397 (E.D.N.Y. 2017) (finding that Mr. Eiflaar, who had two children and was expecting a baby with his girlfriend in his home country, was unlikely to recidivate once he was deported and reunited with his family); United States v. Johnson, 245 F. Supp. 3d 393, 396 (E.D.N.Y. 2017) (finding that Mr. Johnson, who had two children with his girlfriend in his home country, and who committed the offense because he needed money to relocate his family to an area of the country with less gang violence, was unlikely to recidivate once he was deported and reunited with his family).
[175] United States v. Lawrence, 254 F. Supp. 3d 441 (E.D.N.Y. 2017). Judge Weinstein had previously noted this problem in United States v. D.W., where he extensively considered both the effect D.W. would have on his community upon release, and what type of sentence would most help him with rehabilitation and reentry. He explained:
“Defendant’s reentry into the community is . . . of concern [as a sentencing consideration]. As demonstrated following his release from State prison, without the support needed to readjust to society, defendant will continue to present a danger to himself and others. The effect that a prolonged period of incarceration is likely to have on defendant’s ability to reenter the community is vital in assessing the risks he probably will present to the public, and in devising an appropriate sentence and reentry conditions.”
United States v. D.W., 198 F. Supp. 3d 18, 55 (E.D.N.Y. 2016).
[176] Lawrence, 254 F. Supp. 3d at 442.
[181] See, e.g., Reentry Program—Recidivism Reduction, Aleph Inst., http://aleph-institute.org/wp/programs/reentry-services [https://perma.cc/DT79-Q2YQ]; cf. Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).
[182] The range suggested by the Guidelines was ninety-seven to 121 months of incarceration. United States v. Hernandez, No. 09-CR-703, 2010 WL 2522417, at *1 (E.D.N.Y. May 28, 2010).
[183] United States v. Hernandez, 209 F. Supp. 3d 542, 544 (E.D.N.Y. 2016).
[186] Id. (internal citations omitted).
[187] 18 U.S.C. § 3553(a)(2) (2012).
[188] In April 2019, Judge Weinstein was one of the first district judges to cite to the First Step Act of 2018 in a sentencing decision, which allows courts to retroactively reduce the sentence of a defendant convicted of a crack cocaine offense before 2010. Pub. L. No. 115-391, 132 Stat. 5194. Mr. Simons had been convicted in 2008 of selling cocaine base, and, subject to a ten-year mandatory minimum, was sentenced to twelve years of incarceration. United States v. Simons, No. 07-CR-874, 2009 WL 1406971, at *2 (E.D.N.Y. May 4, 2009). At the resentencing hearing in 2019, the Judge sentenced Mr. Simons to time served, in part because “[h]e has taken substantial steps during his period of incarceration to achieve the rehabilitative goals sought by the original sentence imposed . . . .” United States v. Simons, 375 F. Supp. 3d 379, 388 (E.D.N.Y. 2019). This reduction under the First Step Act, he found,
promotes respect for the law while reflecting society’s changing views about incarceration and the need to avoid unwarranted sentencing disparities between similarly-situated defendants. It helps close the sentencing gap between crack and powder cocaine offenses and eliminates the disparity between defendant and those sentenced after the Fair Sentencing Act was enacted in 2010.
Id. at 8.
[191] The Eastern District of New York operates a Pretrial Opportunity Program (POP) and Supervision to Aid Re-entry (STAR) court, both of which are designed to assist defendants who struggle with substance abuse. U.S. Pretrial Servs. Agency E.D.N.Y., Alternatives to Incarceration in the Eastern District of New York: The Pre-Trial Opportunity Program and the Special Options Services Program, Third Report to the Board of Judges 6, 86 (2017). Individuals who participate in POP receive intensive treatment under the supervision of counselors, Pretrial Service Officers, and judges who will ultimately preside over their cases. Proceedings are adjourned for at least a year while defendants participate in the program, and upon completion, defendants may face significantly shorter sentences or in some cases, avoid conviction altogether. Id. at 6–9. POP’s success rate in the Eastern District of New York is seventy-eight percent; since January 2013, out of thirty-eight POP participants in Brooklyn and Central Islip, seven were issued deferred prosecution agreements and fourteen were sentenced to a term of nonincarceration. Id. at 17–22. The STAR court is a postsentence alternative to incarceration program. Created by the late Judge Charles P. Sifton, it was the first federal reentry court for individuals with a history of substance abuse to assist them with reentry into the community following their term of incarceration or supervised release. Id. at 86. Its primary goal is rehabilitation: “[t]he program was founded on the belief that too often substance abusers are jailed for behavior directly related to the abuse, and they are not given sufficient help in controlling their addictions while incarcerated and after their release.” Id. at 87. Since its inception in 2002, sixty-five percent of the 199 participants in the STAR program have graduated successfully. Id. at 90.
[192] United States v. Ilayayev, 800 F. Supp. 2d 417, 420 (E.D.N.Y. 2011).
[197] See supra note 191. The STAR court is a postsentence alternative to incarceration program designed to assist defendants who struggle with substance abuse.
[198] Ilayayev, 800 F. Supp. 2d at 426–27.
[202] See infra Part III for a further discussion of supervised release and drug use.
[203] Ilayayev, 800 F. Supp. 2d at 452 (“A revocation of his current term of supervised release followed by one day incarceration and a new term of supervised release with the special condition that he enters an inpatient drug treatment program will substantially restrict his freedom. . . . The alternative of a sentence to incarceration under these circumstances can be avoided without substantial danger to the defendant or the public.”).
[205] See supra Section II.B.1.b.
[206] See, e.g., United States v. Scott, 239 F. Supp. 3d 629 (E.D.N.Y. 2017).
[208] Id. at 634. The Judge determined that Mr. Scott’s “use of heroin and participation in the DTO as a ‘buyer’ can be traced back to his knee injury and subsequent Oxycodone and Percocet prescriptions.” Id. at 635 (internal citations omitted).
[213] United States v. Thomas, 255 F. Supp. 3d 400, 402 (E.D.N.Y. 2017).
[217] See, e.g., United States v. Bath, No. 18-CR-00150, 2019 WL 1459038, at *3 (E.D.N.Y. Mar. 29, 2019) (sentencing Mr. Bath, who pled guilty to robbery offenses and had a serious addiction to heroin, to time served in part because “[t]reatment for his drug addiction, rather than further incarceration, will best reduce his risk of recidivism and provide him with a chance to lead a healthy and productive life”).
[218] The Judge’s mean and median sentences for immigration offenses were below the national and Eastern District of New York means and medians between 2006 and 2017. See infra Appendix A. It should be noted, however, that the types of crimes considered in this Section of the Article are much broader than the crimes considered in the Sentencing Commission’s “Immigration” category.
[219] United States v. Chong, No. 13-CR-570, 2014 WL 4773978 (E.D.N.Y. Sept. 24, 2014).
[220] See 8 U.S.C. § 1227 (2012). The Judge noted that “[t]he practice of increasing deportations as a result of criminal convictions represents a dramatic change in the landscape of federal immigration law.” Chong, 2014 WL 4773978, at *3 (internal quotation marks and citation omitted); see also Padilla v. Kentucky, 559 U.S. 356, 360–64 (2010) (“While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The ‘drastic measure’ of deportation or removal, . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes. . . . These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.” (citations omitted)).
[221] Chong, 2014 WL 4773978, at *1 (comparing United States v. Thavaraja, 740 F.3d 253, 262–63 (2d Cir. 2014) (“[A] district court may take into account the uncertainties presented by the prospect of removal proceedings and the impact deportation will have on the defendant and his family.”), with United States v. Wills, 476 F.3d 103, 109 (2d Cir. 2007) (“[T]he district court erred as a matter of law in factoring into [defendant]’s sentence his likely deportation after serving his prison term.”)).
[222] Id. at 4 (citing Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 Fed. Sent’g Rep. 326 (1991)).
[223] Chong, 2014 WL 4773978, at *4 (citing Padilla, 559 U.S. at 364).
[224] 18 U.S.C. § 3553(a)(2)(A) (2012).
[225] See Chong, 2014 WL 4773978, at *6 (citing Hugh LaFollette, Collateral Consequences of Punishment: Civil Penalties Accompanying Formal Punishment, 22 J. Applied Phil. 241, 244–46 (2005); Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer & Meda Chesney–Lind eds., 2002)); see also Padilla, 559 U.S. at 366 (“Deportation as a consequence of a criminal conviction is . . . uniquely difficult to classify as either a direct or a collateral consequence”).
[226] U.S. Sentencing Comm’n, Guidelines Manual, at § 5E1.2(d)(5) (2013) (emphasis added).
[227] Chong, 2014 WL 4773978, at *7.
[228] See Padilla, 559 U.S. at 366 (“[W]e find it ‘most difficult’ to divorce the penalty from the conviction in the deportation context. Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.” (internal citation omitted)).
[229] Chong, 2014 WL 4773978, at *7.
[231] 18 U.S.C. § 3553(a)(2)(C) (2012).
[232] Chong, 2014 WL 4773978, at *8.
[234] 18 U.S.C. § 3553(a)(2)(D), in relevant part, states that
“[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— . . . (2) the need for the sentence imposed— . . . (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . .”
[235] Chong, 2014 WL 4773978, at *9 (internal quotation marks omitted) (quoting 18 U.S.C. § 3582(a)); see also S. Rep. No. 98–225, at 76–77 (1983) (quoting 18 U.S.C. § 3582(a)); Tapia v. United States, 564 U.S. 319, 326–27 (2011) (quoting 18 U.S.C. § 3582(a)).
[236] Chong, 2014 WL 4773978, at *9 (“Rehabilitative concerns weigh especially strongly against a term of imprisonment where the defendant is subject to deportation upon completion of a sentence . . . . [T]he Bureau of Prisons has effectively endorsed this position, opting to exclude from rehabilitation programs (e.g., drug treatment, job training) many prisoners subject to Immigration and Customs Enforcement detainers.” (citing U.S. Gov’t Accountability Off., GAO–08–6, Cost of Prisons: Bureau of Prisons Needs Better Data to Assess Alternatives for Acquiring Low and Minimum Security Facilities 5 (2007) (“According to BOP officials and private contractors . . . [p]rograms that focus on preventing returns to prison are not required of private facilities [devoted to noncitizens] because criminal aliens are released for removal from the country and are not expected to return to U.S. communities or BOP custody.”))).
[237] Chong, 2014 WL 4773978, at *10.
[239] Id. at *13 (internal citation omitted).
[240] United States v. Aguilar, 133 F. Supp. 3d 468, 481–82 (E.D.N.Y. 2015).
[244] Id. at 475 (citing N.Y. University School of Law Immigrant Rights Clinic, Insecure Communities, Devastated Families: New Data on Immigrant Detention and Deportation Practices in New York City 3 (2012), http://www.immigrantdefenseproject.org/wp-content/uploads/2012/07/NYC-FOIA-Report-2012-FINAL.pdf [https://perma.cc/T7FR-MF9H] (“Eighty-seven percent of immigration cases involving noncitizens with children in New York result in deportation.”)).
[245] Id. at 476–77 (citing Kalina M. Brabeck et al., The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families, 84 Am. J. Orthopsychiatry 496, 499 (2014) (“The detention of a parent can create a state of crisis for the family, especially children . . . . When looking at long-term effects, children of incarcerated parents are more likely to have substance abuse problems and to be unemployed, and to experience poor romantic relationships, divorce, and/or separation from their own children. In the wake of parental incarceration, family members must deal with the sequela of traumatic separation, loneliness, stigma; how to explain the separation to children, strained parenting, reduced family income, unstable childcare arrangements, and home and school instability and transitions.”) (citations omitted)).
[246] Id. at 480 (quoting Kalina M. Brabeck et al., The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families, 84 Am. J. Orthopsychiatry 496, 501 (2014)).
[249] United States v. Sarpong, No. 14-CR-242, 2014 WL 5363775, at *2 (E.D.N.Y. Oct. 21, 2014) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended eighteen to twenty-four months of incarceration); United States v. Palaguachy, No. 14-CR-0184, 2014 WL 6606668, at *2 (E.D.N.Y. Nov. 19, 2014) (imposing a sentence of one year and one day—with credit for time served—on defendant convicted of reentering the United States illegally, where the Guidelines recommended twenty-seven to thirty-three months of incarceration); United States v. Florez Parra, No. 14-CR-332, 2015 WL 105885, at *2 (E.D.N.Y. Jan. 7, 2015) (imposing a sentence of time served on defendant convicted of reentering the United States illegally, where the Guidelines recommended fifteen to twenty-one months of incarceration); United States v. Hylton, No. 15-CR-447, 2016 WL 127550, at *1 (E.D.N.Y. Jan. 11, 2016) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended twelve to eighteen months of incarceration); United States v. Chery, No. 16-CR-181, 2016 WL 4491720, at *3 (E.D.N.Y. Aug. 25, 2016) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended eighteen to twenty-four months of incarceration); United States v. Ramrattan, No. 16-CR-239, 2016 WL 4399308, at *4 (E.D.N.Y. Aug. 17, 2016) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended eighteen to twenty-four months of incarceration); United States v. Solomon, No. 16-CR-286, 2016 WL 6634913, at *4 (E.D.N.Y. Nov. 8, 2016) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended thirty-seven to forty-six months of incarceration); United States v. Johnson, 245 F. Supp. 3d 393, 396–97 (E.D.N.Y. 2017) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended twelve to eighteen months of incarceration); United States v. Eiflaar, 255 F. Supp. 3d 394 (E.D.N.Y. 2017) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended eighteen to twenty-four months of incarceration); Aguilar, 133 F. Supp. 3d at 482 (imposing a sentence of time served on defendant convicted of assisting in document forgery, where the Guidelines recommended one to three years of incarceration); United States v. Perez, No. 14-CR-0668-003, 2015 WL 4656550, at *1 (E.D.N.Y. Aug. 5, 2015) (imposing a sentence of time served on defendant convicted of forgery, where the Guidelines recommended one to three years of incarceration); United States v. Lopez, No. 14-CR-668, 2015 WL 3938488, at *1 (E.D.N.Y. June 25, 2015) (imposing a sentence of time served on defendant convicted of forgery, where the Guidelines recommended eighteen to twenty-four months of incarceration); United States v. Chicaiza Baculima, No. 15-CR-605, 2016 WL 2866404, at *1 (E.D.N.Y. May 16, 2016) (imposing a sentence of time served on defendant convicted of reentering the United States illegally, where the Guidelines recommended twenty-four to thirty months of incarceration); United States v. G.L., 305 F.R.D. 47, 52 (E.D.N.Y. 2015) (imposing a sentence of time served on defendant convicted of importing a controlled substance, where the Guidelines recommended thirty-seven to forty-six months of incarceration); United States v. Palhua, No. 15-CR-536, 2016 WL 1222257, at *1 (E.D.N.Y. Mar. 24, 2016) (imposing a sentence of time served on defendant convicted of reentering the United States illegally, where the Guidelines recommended eighteen to twenty-four months of incarceration); United States v. Mondano-Odaz, No. 15-CR-372, 2016 WL 1587336, at *1 (E.D.N.Y. Apr. 20, 2016) (imposing a sentence of time served on defendant convicted of reentering the United States illegally, where the Guidelines recommended eighteen to twenty-four months of incarceration); United States v. Paredes, 185 F. Supp. 3d 287, 296 (E.D.N.Y. 2016) (imposing a sentence of time served on defendant convicted of conspiring to distribute a controlled substance, where the Guidelines recommended fifty-one to sixty-three months of incarceration); United States v. Gabella, No. 14-CR-207, 2014 WL 7338797, at *1 (E.D.N.Y. Dec. 22, 2014) (imposing a sentence of probation and a fine on defendant convicted of willful failure to file a report of foreign bank and financial accounts, where the Guidelines recommended twenty-four to thirty months of incarceration); United States v. Aispuro, No. 15-CR-00073, 2015 WL 7281641, at *1 (E.D.N.Y. Nov. 17, 2015) (imposing a sentence of time served on defendant convicted of conspiracy to distribute a controlled substance, where the Guidelines recommended fifty-seven to seventy-one months of incarceration); United States v. Ramirez, No. 17-CR-00676, 2018 WL 1221129, at *3 (E.D.N.Y. Mar. 8, 2018) (imposing a sentence of time served on defendant convicted of reentering the United States illegally, where the Guidelines recommended ten to sixteen months of incarceration). But see United States v. Bennett, No. 15-CR-647, 2016 WL 2869778, at *1 (E.D.N.Y. May 16, 2016) (imposing a sentence of four months of incarceration on defendant convicted of importing a controlled substance, where the Guidelines recommended four to ten months of incarceration).
[250] United States v. Diaz, 11–CR–00821–2 (JG), 2013 WL 322243, at *1 (E.D.N.Y. Jan. 28, 2013); see also United States v. Dossie, 851 F. Supp. 2d 478, 481 (E.D.N.Y. 2012) (“Drug quantity is a poor proxy for culpability generally and for a defendant’s role in a drug business in particular.”).
[251] Eiflaar, 255 F. Supp. 3d 394 (“This court has been attempting to rationalize its sentences by establishing general criteria for ‘similar’ cases. With respect to cases in which defendant is a noncitizen facing deportation following incarceration, this court has determined that, ‘[c]onsidering the grave hardships deportation entails, the nation’s present deportation policy, and the core purposes of criminal sentencing, see 18 U.S.C. § 3553, imposition of minimal prison time with prompt deportation should be normal in such cases—subject to variations for individual circumstances.’” (citing United States v. Chong, No. 13-CR-570, 2014 WL 4773978, at *1 (E.D.N.Y. Sept. 24, 2014)); see also Sarpong, No. 2014 WL 5363775, at *2 (accounting for prospect of deportation when imposing a term of incarceration); Palaguachy, 2014 WL 6606668, at *2 (same); Florez Parra, 2015 WL 105885, at *2 (same); Chery, 2016 WL 4491720, at *3; Solomon, 2016 WL 6634913, at *4 (same); Johnson, 245 F. Supp. 3d at 396).
[252] G.L., 305 F.R.D. 47, 48 (E.D.N.Y. 2015).
[255] See United States v. Lawrence, 254 F. Supp. 3d 441, 443 (E.D.N.Y. 2017) (citing Office Attorney Gen. Eric T. Schneiderman, Target on Trafficking: New York Crime Gun Analysis (2017), https://targettrafficking.ag.ny.gov/#toppart [https://perma.cc/T6JM-X3VX] (“A recent study examined the purchase history of the nearly 53,000 crime guns recovered by law enforcement in New York between 2010 and 2015. It concluded that 74 percent of all guns connected to a crime and recovered by law enforcement originated out-of-state, and 86 percent of recovered handguns came from out-of-state.”); Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 856–58 (2017) (considering the “epidemic” of deaths in the United States that have resulted from gun violence)).
[256] See Lawrence, 254 F. Supp. 3d at 454 (citing Ashley Southall, Shootings in New York Fell in 2016 to Lowest Level in More Than 20 Years, N.Y. Times (Jan. 4, 2017), https://www.nytimes.com/2017/01/04/nyregion/new-york-shootings-decline.html [https://perma.cc/6K9J-Z88Q]; Benjamin Mueller & Al Baker, Steep Drop in Gang Violence Pushed City Shootings Below 1,000 in 2016, N.Y. Times (Jan. 3, 2017), https://www.nytimes.com/2017/01/03/nyregion/new-york-city-shootings-gang-violence.html [https://perma.cc/WR7K-3ARF]; Benjamin Mueller et al., As Nationwide Gangs Fracture, Bullets Fly in New York, N.Y. Times (May 15, 2017), https://www.nytimes.com/2017/05/15/nyregion/bronx-gang-violence-murders.html [https://perma.cc/QU9U-C7DU]).
[257] Lawrence, 254 F. Supp. 3d at 449–50.
[259] See supra Section II.B.1.a.
[260] Lawrence, 254 F. Supp. 3d at 454–55.
[261] See, e.g., United States v. Thompson, No. 16-CR-502, 2017 WL 2579060, at *1 (E.D.N.Y. June 14, 2017) (sentencing defendant convicted of possession of a firearm, having previously been convicted of a felony, to eighteen months in prison where the Guidelines recommended twenty-seven to thirty-three months of incarceration); United States v. Jones, No. 11-CR-043-01, 2011 WL 4014322, at *2 (E.D.N.Y. Aug. 30, 2011) (sentencing defendant convicted of possession of a firearm, having been previously convicted of a felony, to twenty-seven months in prison where the Guidelines recommended fifty-seven to seventy-one months of incarceration, in part because “[p]ossession of a firearm by a convicted felon is a serious offense. . . . Jones also has a history of associating with gang members. Under the circumstances, his possession of a firearm created a serious risk of danger to the community. A sentence of twenty-seven months reflects the seriousness of the offense and will promote respect for the law and provide just punishment. See 18 U.S.C. § 3553(a)(2)(A). [But t]he court considered the strong family support for this defendant, his young age, his intention to help himself as reflected by his G.E.D. certificate, and the strong desire he has as the main male figure in a large female extended family to protect his two young nephews and to set a good example for them. There is a good chance that with close supervision and a job he can become a lawful member of society”); United States v. Serrano, No. 08-CR-612, 2010 WL 147924, at *2 (E.D.N.Y. Jan. 11, 2010) (sentencing defendant convicted of possession of a firearm, having previously been convicted of a felony, to thirty-six months in prison where the Guidelines recommended forty-one to fifty-one months of incarceration, in part because “[t]he offense is serious in view of the dangers posed by firearm possession”). But see United States v. Rivera, 281 F. Supp. 3d 269, 287–89 (E.D.N.Y. 2017) (sentencing three defendants convicted of brandishing a firearm in furtherance of an act of violence to ninety months, eighty-four months, and ninety-six months of incarceration, respectively, where the mandatory minimum was eighty-four months, exceeding the mandatory minimum in two of the sentences in part because they possessed firearms); United States v. Barrow, 230 F. Supp. 3d 116, 119, 127 (E.D.N.Y. 2017) (sentencing defendant convicted of illegal possession and trafficking in firearms to forty-two months in prison, where the Guidelines recommended thirty-seven to forty-six months of incarceration, in part because Mr. Barrow “sold over a dozen firearms to someone who could have used them to extremely destructive ends. The community needs to understand that firearm crimes are grave. A sentence of this gravity (if properly publicized) will adequately communicate this message”); United States v. Ballinger, No. 1:16-cr-00066-JBW, 2017 WL 1397521, at *4 (E.D.N.Y. Apr. 14, 2017) (sentencing defendant to seventy-five months in prison, where the Guidelines recommended seventy to eighty-seven months of incarceration, in part because “[t]he instant offense is the third time [Mr.] Ballinger appeared before this court for a conviction of being a felon in possession of firearms or ammunition. . . . Incarceration is not effective in inhibiting his criminal conduct. Incapacitation was a prominent factor considered in the instant sentence”); United States v. Hill, No. 10-CR-778, 2011 WL 1667743, at *2 (E.D.N.Y. May 3, 2011) (sentencing defendant convicted of possession of a firearm, having been previously convicted of a felony, to thirty months in prison, where the Guidelines recommended twenty-seven to thirty-three months of incarceration, in part because Mr. Hill “was caught in possession of a .380 caliber semi automatic pistol. . . . At the time of the arrest, the gun was loaded with 11 rounds of ammunition in the magazine and one round in the chamber. [Mr.] Hill was in possession of 31 ecstasy pills and approximately $540. These facts indicate that he was either protecting a drug operation or using the gun for other illicit purposes. A sentence of 30 months’ incarceration reflects the seriousness of the offense and will promote respect for the law and provide just punishment. See 18 U.S.C. § 3553(a)(2)(A). . . . The sentence will send a clear message that any involvement in illegal possession of firearms will result in a substantial prison sentence”).
[262] United States v. Wiggins, 298 F.R.D. 75 (E.D.N.Y. 2014).
[265] United States v. Wiggins, No. 14-CR-3, 2014 WL 3890087, at *3 (E.D.N.Y. Aug. 7, 2014).
[268] United States v. Ray, No. 07-CR-874, 2013 WL 3466559, at *1 (E.D.N.Y. Mar. 27, 2013).
[269] Id.; see Anti–Drug Abuse Act of 1986, Pub L. No. 99-570, § 1002, 100 Stat. 3207; Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372.
[270] Ray, 2013 WL 3466559, at *2.
[272] United States v. Levy, No. 16-CR-270, 2017 WL 4381398, at *5 (E.D.N.Y. Aug. 9, 2017).
[274] United States v. D.M., 942 F. Supp. 2d 327, 330 (E.D.N.Y. 2013); see also United States v. Arroyo, 312 F. Supp. 3d 347 (E.D.N.Y. 2018) (“Defendant is sentenced to 10–years imprisonment and five-years supervised release. This statutory minimum sentence is, in the court’s view, excessive and greater than necessary to achieve the goals of sentencing.”).
[275] United States v. R.V., 157 F. Supp. 3d 207, 210 (E.D.N.Y. 2016).
[277] Between 2006 and 2017, the national mean and median for child pornography offenses were 130 and eighty-seven months of incarceration, respectively; in the Eastern District of New York they were eighty-four and sixty months. Judge Weinstein imposed a mean of thirty-five months and median of seven months during that timeframe, though it should be noted that because he only imposed eight sentences in child pornography cases during this timeframe, the usefulness of the data is limited. See infra Appendix A.
[278] D.M., 942 F. Supp. 2d at 329.
[279] D.M. was originally indicted on four counts, the first three of which charged him with knowingly and intentionally receiving one or more pornographic visual depictions, which would have resulted in the application of a mandatory minimum sentence of five years. Pleading guilty only to the fourth count allowed him to avoid the mandatory minimum sentence. Despite using a file sharing system, he was not charged with distributing child pornography, which could have resulted in the application of an additional mandatory minimum of five years. Judge Weinstein commended this use of prosecutorial discretion: “[t]he United States Attorney made a responsible decision to avoid an unnecessarily harsh and counterproductive punishment by allowing a plea to a possession count.” Id. at 332.
[281] Id. at 334 (citing Fed. R. Evid. 706) (explaining that “[c]ourts should use their ‘inherent power’ to require expert testimony at sentencing”).
[282] Id. at 336 (“Inherent in a district court’s power to appoint expert witnesses is the related authority to organize the presentation of expert testimony.”).
[285] Id. at 337 (“There is no indication that [defendant] has ever attempted to abuse or actually abused a minor. His risk of another sexual crime is low according to four actuarial instruments and in our opinion is reduced to remote by virtue of his participation in a treatment. This risk is certainly such that in our opinion he could resume college and his job. In fact, stable employment (or attendance at school) is one of the major factors associated with reduction of recidivism in the community, and a resumption of work and return to college are some of the major goals of therapy.”). The non-treating experts—including those appointed by the government—also agreed that D.M. was at a low risk for recidivism, was responding well to treatment, and would most benefit from continued care as opposed to incarceration. Id. at 341.
[287] See id. at 347 (“Given the substantial progress defendant has shown with his current outpatient treatment, the lack of risk he presents to the public, and the importance of immersing himself in an environment of his peers, a sentence of non-incarceratory probation is more appropriate in this case than any other. In the view of the professional judgment of the therapists and experts, custody would not provide defendant with sufficient treatment.”).
[288] Id. at 330 (“Justice for the victims of this crime—and for society’s future interest in seeing to it that defendant engages in no further criminal activity—is best served through treatment and supervision outside of prison.”).
[290] Id. (citing United States v. Autery, 555 F.3d 864 (9th Cir. 2009) (affirming below-Guidelines sentence of five years of probation for possession of child pornography and no period of incarceration for possession of child pornography); United States v. Stall, 581 F.3d 276 (6th Cir. 2009) (affirming below-Guidelines sentence of one day of incarceration followed by ten-year period of supervised release); United States v. Prisel, 316 Fed. App’x. 377 (6th Cir. 2008) (affirming below-Guidelines sentence of one day in prison followed by eighteen months of home confinement for possession of child pornography); United States v. Rowan, 530 F.3d 379 (5th Cir. 2008) (affirming below-Guidelines sentence of five years of probation and no period of incarceration for possession of child pornography); United States v. Polito, 215 Fed. App’x 354 (5th Cir. 2007) (per curium) (affirming below-Guidelines sentence of five years of probation with one year of house arrest for possession of child pornography); United States v. Diaz, 720 F. Supp. 2d 1039 (E.D. Wis. 2010) (imposing below-Guidelines sentence of six months of incarceration followed by twelve years of supervised release); United States v. Meillier, 650 F. Supp. 2d 887 (D. Minn. 2009) (imposing below-Guidelines sentence of one day of confinement followed by thirty years of supervised release); United States v. Boyden, No. 06–CR–20243, 2007 WL 1725402, at *10 (E.D. Mich. June 14, 2007) (imposing below-Guidelines sentence of one day of confinement followed by three years of supervised release, the first year of which to be served in a community correctional facility). But see United States v. Pugh, 515 F.3d 1179, 1192 (11th Cir. 2008) (finding sentence of five years of probation for possession of child pornography substantively unreasonable, even though defendant was a first-time offender and had a low risk of recidivism)).
[291] United States v. R.V., 157 F. Supp. 3d 207 (E.D.N.Y. 2016). For a discussion on supervised release, see infra Part III.
[292] R.V., 157 F. Supp. 3d at 212–16.
[296] Id. at 218–24. Judge Weinstein separately concluded that, “[t]here was a clear indication of a loving relationship among parents and children.” Id.
[297] Id. at 260 (“While it is not difficult to find cases where severe sentences within and above the Guidelines have been imposed, there is by no means a paucity of cases where judges downwardly depart from the Guidelines. The unreasonable harshness of the Guidelines for an offense of child pornography possession, of which defendant is charged, has been recognized by courts and judges from across the country.” (citing United States v. D.M., 942 F. Supp. 2d 327, 347–48 (E.D.N.Y. 2013))); id. at 260–66 (citing, among others, all of the cases cited in D.M., in which judges nationwide have imposed non-incarceratory sentences for child pornography possession offenses).
[300] Id. at 210 (“Child pornography offenders can be broadly divided into two main categories: those who produce child pornography and those who are viewers of child pornography. By definition, producers of child pornography are child molesters, frequently representing the worst and most dangerous type of offender. Non-production offenders, by contrast, encompass a wide range of individuals with varying degrees of culpability. They include occasional viewers with no particular sexual interest in children as compared to adults; viewers with pedophilic tendencies who are aroused by images of minors but do not possess the intent or capacity to engage in any sexual contact with a minor; users of peer-to-peer files who passively and unintentionally distribute child pornography received on their computers; viewers who intentionally engage in the trafficking of child pornography for economic or psychic gain; and viewers who have, intend to, or are likely to, engage in sexual contact with a minor—i.e., actual or potential child molesters.”).
[301] Id. at 267 (“It is recognized that the child pornography Guidelines are ‘fundamentally different from most and . . . unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires.’ Dorvee, 616 F.3d at 184. Acceptance of this fact enhances a sentencing court’s ability to properly comply with its duty to impose sentences that reflect the statutory goals of sentencing and are based on a required individualized assessment of the facts presented.”).
[302] Id. at 210–11 (classifying conduct ranging from: possession-only child pornography users; possession and involuntary distribution; possession with intentional distribution; possession with intentional distribution for commercial gain; online communication with minors without intent to engage in contact; online communication with minors intending to engage in contact; and production of child pornography).
[304] United States v. E.L., 188 F. Supp. 3d 152, 155 (E.D.N.Y. 2016).
[309] 18 U.S.C. § 3553(a)(2)(B) (2012) (“The court, in determining the particular sentence to be imposed, shall consider— . . . (2) the need for the sentence imposed—. . . (B) to afford adequate deterrence to criminal conduct . . . .”).
[310] As Judge Weinstein recently explained in United States v. Lawrence,
“[t]he theory of general deterrence is that imposing a penalty on one person will demonstrate to others the costs of committing a crime, thus discouraging criminal behavior. The prevailing argument is that in order to treat a defendant . . . as an exemplar for others who need to be deterred from [the offense], a long prison term is required.”
254 F. Supp. 3d 441, 442 (E.D.N.Y. 2017).
[311] United States v. Jones, No. 11-CR-043-01, 2011 WL 4014322, at *2 (E.D.N.Y. Aug. 30, 2011). Judge Weinstein also took into consideration that Mr. Jones had previously committed two acts of violence, and that “[u]nder the circumstances, his possession of a firearm created a serious risk of danger to the community.” Id. at *2.
[312] United States v. Barrow, 230 F. Supp. 3d 116, 127 (E.D.N.Y. 2017).
[313] Id. These sentences are also illustrative of the consistency with which Judge Weinstein has approached sentencing of cases involving guns, as discussed in Section II.B.2.a.3.
[314] United States v. Marsh, No. 10-CR-0480, 2011 WL 5325410, at *1 (E.D.N.Y. Oct. 26, 2011).
[318] United States v. Lawrence, 254 F. Supp. 3d 441, 446 (E.D.N.Y. 2017).
[326] In 2000, Judge Weinstein helped develop the Special Options Services Program (SOS) in the Eastern District of New York. U.S. Pretrial Servs. Agency E.D.N.Y., supra note 191, at 10. A pretrial supervision program like POP, it was created to assist and rehabilitate juvenile and young adult defendants before they are convicted and sentenced. Cf. supra note 191. Scientific research shows that reasoning and judgment are not fully developed in adolescents until their early to mid-twenties. Because young offenders are “vulnerable or susceptible to negative influences . . . without fully appreciating the consequences of their behavior,” SOS was founded on the belief that “rehabilitation for this age group may in some cases be more effective than prison.” U.S. Pretrial Servs. Agency E.D.N.Y., supra note 191, at 10–11. The program was restructured in March 2013, and of the fifty-seven defendants who have participated since then, thirty-five, or sixty-three percent, have graduated successfully. Id. at 17–22. It is estimated that the POP and SOS programs in the Eastern District of New York have saved $5.8 million in incarceration costs. Id. at 23–24.
[327] Lawrence, 254 F. Supp. 3d at 448.
[328] See United States v. Levy, No. 16-CR-270, 2017 WL 4381398, at *5 (E.D.N.Y. Aug. 9, 2017) (citing Lawrence, 254 F. Supp 3d 441, but concluding “[t]hough longer sentences may not always have a general deterrent effect, a substantial sentence in a case involving guns—regardless of the motive of the possessor of the weapon—is the primary means by which the court can communicate to the public that firearms are inimical to the safety of persons living in a densely-populated urban community, and that illegal possession will be severely punished” (internal citation omitted)).
[329] Lawrence, 254 F. Supp. 3d at 448.
[330] United States v. Trotter, 321 F. Supp. 3d 337, 339 (E.D.N.Y. 2018).
[334] Id. at 347–49. The federal statute at issue, 18 U.S.C. § 3583(g), provides:
If the defendant—
(1) possesses [marijuana or another] controlled substance in violation of the condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law, or otherwise violates a condition of supervised release prohibiting the defendant from possessing a firearm;
(3) refuses to comply with drug testing imposed as a condition of supervised release; or
(4) as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year;
the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).
Trotter, 321 F. Supp. 3d at 347 (citing 18 U.S.C. § 3583(g) (2012)).
[336] Id. at 344; see also supra Section I.B.1.
[337] Trotter, 321 F. Supp. at 345.
[339] Id. at 340, 345, 362 (citing Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release, 18 Berkeley J. Crim. L. 180, 190 (2013) (arguing that supervised release is over-used and not justifiable given its high fiscal costs and low success rate of transitioning supervisees back into the community. Specifically in the Eastern District of New York, supervised release is imposed in the vast majority of cases, but rarely discussed at sentencing the way a term of incarceration is, meaning it is usually unclear why a judge imposes supervised release. “[T]he perceived mandatory nature of supervised release is so entrenched that [federal defenders] do not even bother to fight its imposition . . . .”)); see also id. at 345 (citing Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 N.Y.U. L. Rev. 958, 1016–20 (2013) (arguing that supervised release is premised on “coercive rehabilitation,” since supervisees face more punishment if they violate a condition of supervision. Only two thirds of offenders successfully complete their term of supervised release, meaning a significant number of supervisees have their release revoked and are sent back to prison, over half of them for noncriminal conduct. This creates enormous cost, does not adequately prevent recidivism, and gives judges too much discretion)).
[341] Id. (citing Jennifer L. Doleac, Study After Study Shows Ex-Prisoners Would Be Better Off Without Intense Supervision, Brookings Institution (July 2, 2018), https://www.brookings.edu/blog/up-front/2018/07/02/study-after-study-shows-ex-prisoners-would-be-better-off-without-intense-supervision [https://perma.cc/NFZ4-5R9H]).
[344] United States v. Smith, 321 F. Supp. 3d 405 (E.D.N.Y. 2018).
[348] United States v. Doe, 323 F. Supp. 3d 368, 392 (E.D.N.Y. 2018).
[354] United States v. Trotter, 321 F. Supp. 3d 337, 339 (E.D.N.Y. 2018).
[355] Doe, 323 F. Supp. 3d at 378.
[358] United States v. Thomas, 346 F. Supp. 3d 326, 328 (E.D.N.Y. 2018).
[363] United States v. Trotter, 321 F. Supp. 3d 337 (E.D.N.Y. 2018) (“[I]t is obvious that marijuana use, through law, policy, and social custom, is becoming increasingly accepted by society. Many people from all walks of life now use marijuana without fear of adverse legal consequences.”).
[364] Id. at 363 (“For some, supervised release can be a trap where they bounce between supervision and prison.”).
[365] The latest report from the Commission shows that in the fiscal year 2017, 49.1% of all sentences issued throughout the country were within the Guidelines range, despite their advisory nature, and 47.9% of sentences were below the Guidelines range. U.S. Sentencing Comm’n, Statistical Information Packet: Fiscal Year 2017, Second Circuit 11 (2018), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2017/2c17.pdf [https://perma.cc/7Q86-NFY4]. In 2006, shortly after the Guidelines became advisory, 61.7% of all sentences were still within the Guidelines, and only 36.6% were below the Guidelines. U.S. Sentencing Comm’n, Statistical Information Packet: Fiscal Year 2006, Second Circuit 11 (2007), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2006/2c06.pdf [https://perma.cc/NNL5-QKSA].
[366] See, e.g., Weinstein, Notes on Uniformity and Individuality in Mass Litigation, supra note 19, at 255–56 (“But at least we have now been allowed to avoid the hypocrisies involved in mechanical uniformity in sentencing, and we are seeking some consensus in our approaches to reducing incarceration and avoiding unnecessary destruction of lives and communities by excessive punishment.”).
[367] U.S. Sentencing Guidelines Manual 4–5 (U.S. Sentencing Comm’n 2016).
[369] Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 19–20 (1998) (“One important area of [] compromise [when creating the Guidelines] concerns ‘offender’ characteristics. . . . Some argued in favor of taking past arrest records into account as an aggravating factor. . . . Others argued that factors such as age, employment history, and family ties should be treated as mitigating factors. Eventually, in light of the arguments based in part on considerations of fairness and in part on the uncertainty as to how a sentencing judge would actually account for the aggravating and/or mitigating factors, the Commission decided to write its offender characteristics rules with an eye towards the Parole Commission’s previous work in the area. As a result, the current offender characteristics rules look primarily to past records of convictions . . . .”).
[370] See, e.g., Gertner, Opinions I Should Have Written, supra note 13 (“I wish I had done more to critique . . . a Guideline structure that treated alike the man who dealt drugs while he was living in his car, with the man who dealt drugs to buy a car, that trivialized factors that affected recidivism (such as family circumstances or drug addiction), and emphasized factors that did not (such as drug quantity).”).
[371] “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” United States v. Harris, 349 F. Supp. 3d 221, 234 (E.D.N.Y. 2018) (quoting Koon v. United States, 518 U.S. 81, 98 (1996)).
[372] A legitimate criticism of this Article that we do not address at length is the potential for improper, biased application of sentencing factors. Sentencing disparities and discriminatory application of sentencing factors helped lead to the creation of the Guidelines. We do not take lightly the criticism that increased discretion can lead to poor systemic outcomes.
[374] U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics, supra note 6.
[375] Weinstein, Notes on Uniformity and Individuality in Mass Litigation, supra note 19, at 255–56.
[376] Christina Liu, Tribute to Judge Jack B. Weinstein, 72 N.Y.U. Ann. Surv. Am. L. 5, 7 (2017) (“You have sat face-to-face with defendants, have placed a defendant’s hand in your hand when you sentenced him, and have put your arm around a defendant’s family member to provide comfort in times of need. You are ever conscious that you are dealing with people, and that you are just like them.”).