This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker . It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Over more than half a century of service on the federal bench Judge Weinstein has produced reams of articles, speeches, and opinions, attempting to convince higher courts and Congress to recast sentencing law on the basis of fairness. Like any great jurist, Judge Weinstein did not win every battle, but he pursued the ideal of individualized justice with unflagging dedication. In the process, he transformed sentencing law. He brought due process to sentencing by conceiving of and instituting Fatico hearings, and later became among the most powerful voices against mandatory sentencing regimes. Judge Weinstein’s ingenuity always withstood public controversy and criticism. He refused to mete out unduly harsh or unduly lenient sentences, relying instead on a commitment to reasonableness and simple fairness. While Judge Weinstein enjoyed a reputation for compassion and social consciousness, he applied the law faithfully, without disguising the difficulties inherent in the art of judging. He leaves a legacy of intellectual honesty, integrity, and faith in the promise of the law to do justice.

In this tribute to the Honorable Jack B. Weinstein, his judicial successor highlights Judge Weinstein’s virtues and shares some of his wisdom. Included among these pearls are the conclusions that judges are obligated to confront injustices and that they are equal governmental partners with their executive and legislative colleagues. The essay also chronicles Judge Weinstein’s approach to sentencing and commitment to procedural justice.

This essay, for a symposium issue of the Federal Sentencing Reporter dedicated to the impact of Judge Jack Weinstein on the occasion of his retirement from the federal bench, highlights how Judge Weinstein has re-imagined the role of the district court judge. Through his judicial opinions, extrajudicial writings and speeches, and his innovative use of the court’s supervisory authority, Judge Weinstein has challenged, and in some cases altered, the status quo in the realm of criminal sentencing. In doing so, he has established a forceful example of how district court judges can use their position to advocate for and effect reform more broadly in the system they are called upon to administer – an example that some other judges already have embraced. In his scholarship, Judge Weinstein also has turned his critical lens inward and examined whether this work is consistent with the judicial role. He concludes that it is, but offers valuable guidance for other judges considering following in his footsteps for how to do so in a way that minimizes concerns about partiality. In the end, Judge Weinstein concludes that such work is not only permissible but required when judges perceive injustice. Few will be as creative, prolific, or persuasive as Judge Weinstein has been. But he leaves behind a fully articulated vision of an active district court judge and invites other judges to consider the kind of judge they want to be given the limits and possibilities that accompany their position.

In a series of decisions issued during his last two years on the bench, Judge Jack B. Weinstein of the Eastern District of New York set out a new vision for the imposition and termination of federal supervised release. Specifically, beginning with his decision in U.S. v. Trotter in 2018, he focused on imposing shorter terms, terminating supervised release early, and vowed not to return people to prison for supervised release violations caused by habitual alcohol or marijuana use. This article examines Judge Weinstein’s jurisprudence on supervised release and looks at the impact of his new vision. After reviewing Judge Weinstein’s pre- Trotter supervised release cases, it examines the Trotter case and his subsequent supervised release decisions. The article concludes by reviewing the impact of these decisions on the imposition of supervised release in the Eastern District as well as the wider federal criminal legal system.

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker . It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Judge Jack B. Weinstein approached every sentencing with his trademark compassion and intellectual rigor. This was nowhere more evident than in two of the most challenging sentencing contexts: child pornography and terrorism. This essay considers Judge Weinstein’s refusal to sentence based on assumptions about defendants and their conduct, and his insistence on empirical data, expert evaluations, and asking the hardest questions about motivation and future behavior before imposing sentence. It focuses on Judge Weinstein’s sentencing practices in terrorism and child pornography cases, the two areas in which Congress and the U.S. Sentencing Commission have most limited judicial discretion in sentencing. It shows that despite those limits, Judge Weinstein sought always to impose individualized sentences based on the actual person before him. He believed every person—no matter their worst act—could be salvaged, and deserved happiness.

Recidivism is now the guiding principle of punishment and has become the new hallmark of criminal justice reform, as reflected in the U.S. Sentencing Commission’s recidivism project. So far, the Commission has issued three reports in 2020 alone, which outline the parameters within which “safe” criminal justice reform can proceed. Yet the overly broad definition of “recidivism” and the focus on easily measurable and static risk factors, such as prior criminal record, create a feedback loop. The Commission’s work should come with a warning label. Its recidivism studies should not be consumed on their own. Instead, they must be read in conjunction with U.S. Probation and Pretrial Services recidivism research, which includes data on the impact of programming, treatment, and services on reentry success. Yet, concerns about undercounting recidivism events drive the entire U.S. approach. Western European studies reflect different philosophies and values that explain some of the underlying reasons for the dramatically different imprisonment rates on the two sides of the Atlantic. These recidivism studies raise also questions about the Commission’s role. Its ongoing preference for imprisonment indicates that it continues to consider itself the guardian of incarceration-driven guidelines. The studies reenforce the status quo and the Commission’s role in it. They threaten to propel us into data-driven selective incapacitation and continuously long prison terms for those with prior criminal records, all in the name of public safety.

There is mounting evidence for something that some criminologists have dubbed “The Ferguson Effect”—when police face hostile public scrutiny, in the wake of a highly publicized incident of police misconduct, there is impressive evidence of police retreat, sometimes referred to as “de-policing.” Recent data reviewed by Professors Richard Rosenfeld and Paul Cassell in their important papers document sharp spikes in violent crime in major cities following protests against police violence beginning in May 2020. It is a devilishly difficult business to ascertain the causes of changes in crime rates. Even granting the ineradicable uncertainties, this article argues that there is an impressive case that this crime spike reflects a Ferguson Effect. The incentives confronting police offices suggest the likely mechanism for the decline in law enforcement activity documented by Professor Cassell. Because officers internalize few, if any, of the benefits of effective policing, when they perceive a risk that they will be made to internalize its costs, over-deterrence is the likely outcome. There are, moreover, important policy implications of this conclusion. Policing reforms must be alert to the risk that they will over-deter officers, and thereby spur increases in violent crime, which will impose disproportionate costs on disadvantaged communities and people of color.

Paul Cassell maintains that de-policing was a major cause of the spike in violent crime many American cities experienced during the summer of 2020. While plausible, Professor Cassell’s argument is unconvincing because it fails to explain why de-policing did not produce a rise in property crime, and it overstates the impact of policing on crime. Nor does he present evidence of a drop in police presence and activity large enough to produce such a huge increase in violence. Professor Cassell’s criticism of the argument that diminished police legitimacy caused the violence spike is more persuasive. He and I agree that the explanation for the spike lies somewhere in the nexus between the police and the disadvantaged communities they serve more or less effectively.