It’s time to put the potted-plant theory of the separation of powers doctrine to rest. Jack B. Weinstein, Senior United States District Judge for the Eastern District of New York, is proof that it can be done. All it takes is a judiciary determined to take its role as judges seriously.
Weinstein did the unthinkable the other day. He declared a five-year mandatory sentence of imprisonment in a child pornography case to be unconstitutional. He did so in a 400-page ruling that is less judicial opinion that scholarly attack on a body of law premised on hysteria and fueled by the belief that longer prison sentences for anyone convicted of a crime will make the world a better place. According to Weinstein, such formulaic legislation violates the Eight Amendment’s prohibition of cruel and unusual punishment, at least as regards adolescents.
C.R., the defendant, was a young man from a troubled home when he began to collect images of child pornography."Young C.R. is far from perfect – a characteristic shared with many," the judge writes. "But this is not a reason for destroying him in prison." Would that these words were etched into the bench behind which every judge in the nation sits. I’ve watched far too many judges pass out lengthy sentences in fits of something akin to moral panic; do these gavel-wielding avengers ever really count the cost to a defendant and his family of a single year in prison? I sometimes think that a judge should be required to sit in a cell for six months before taking the bench; give him or her a taste of the product before they start selling it in the name of justice.
Under the federal sentencing guidelines, C.R faced a sentence of 63 to 78 months. The statute under which he convicted, distribution of child pornography, required a legislatively mandated prison sentence of five years. Even if the judge wanted to depart from the guidelines, or give a non-guideline sentence, he was bound, under the potted plant theory of the separation of powers, to sentence C.R. to five years, or 60 months in prison. Period.
Almost every other judge in the United States, perhaps every other judge in the United States, would have put the case to bed at this point, washing their hands, like Pontius Pilate, and claiming they were just doing the will of others, in this case lawmakers. But Weinstein did not. He did the unthinkable: he used critical judgment.
The judge reviewed a record replete with testimony and literature from neuroscientists supporting the conclusion that adolescents are, in fact, different, as a matter of biological fact. "The adolescent brain is structurally immature and continues to develop well into the twenties," he wrote. Young people have problems with impulse control, he noted, stating an obvious truth too often ignored in the courtroom. As a result of this research, the judge concluded that a mandatory minimum period of imprisonment of five years was cruel and unusual for C.R., an adolescent of 19 at the time of his arrest.
The judge sentenced C.R., now in his early twenties, to a 30 month sentence of intensive treatment, hardly an endorsement of admittedly deviant and prohibited behavior.
Decisions such as this should be more common. The neurosciences have plenty to teach about how the brain influences the shadow we call a mind. Our law treats all minds as alike, afloat, if you will, in a sea of calm, where all storms are self-induced acts of will. Reality, we know, is far different: adolescence is a perfect storm for almost all of us, and, even in adulthood, life’s seas are far from calm. Most of us are moored to deeper anchors, and pulled less toward common visions of the good, than toward service to silently raging gods that demand their due.
Not long ago a jury returned a verdict of guilty against a client of mine for the crime of murder. At 19, this man-child shot a rival dead, the jury found. Nineteen, the same age as C.R., yet the sentence will be man-sized for this death. I expect 50 years or more. Would that there were more Weinstein’s wise enough to listen to the neuroscientists about sentencing.
There are times when the courts ought not to defer to lawmakers. The Constitution is a document in need of interpretation in the light of advances in our understanding of the world. It is a living document, no matter how hard we press to make it a necromantic fetish tethered to the intent of those long-since dead and gone. We need more Jack Weinsteins on the bench.
Reprinted courtesy of the Connecticut Law Tribune.