Sentencing Drug Offenders Justly While Reducing Mass Incarceration

In my paper, I discuss what I believe is the most effective approach to sentencing drug defendants. I start with the proposition that in many, if not most cases, incarcerating drug offenders does more harm than good. Imprisonment contributes to mass incarceration, does not deter unlawful drug activity and has an adverse racial impact. Thus, if a judge can reasonably avoid imposing a prison sentence, he or she should do so. Fortunately, this is the judge’s duty under the law. 18 U.S.C. §3553(a) requires a judge to impose a sentence that is “sufficient but not greater than necessary…” or, in other words, the least restrictive reasonable sentence. Thus, in every case, the judge must first consider whether a non-incarcerative sentence is sufficient. It often will be. In determining the appropriate sentence, a judge should focus on what the offender did and why and what he or she will likely do in the future and pay less attention to such factors as drug type and drug weight. Sometimes, a mandatory minimum sentence will apply and prevent a judge from imposing a fair sentence, but that is outside the judge’s control. Fortunately, because of Booker and its progeny, the Federal Sentencing Guidelines do not pose a similar problem. The judge, of course, must calculate and consider the applicable guideline but in many cases the guideline will be irrelevant to a just sentence. This is so because the guidelines are excessively oriented toward prison sentences and thus frequently conflict with the sufficient but not greater than necessary command of §3553(a). In my paper, I provide numerous examples of sentences that I have imposed and explanations of those sentences to illustrate this approach.

UNIFIED FORMULA OF PUNISHMENT ON THE EXAMPLE OF CRIMINAL PUNISHMENT

Введение: цель статьи – вывести единую формулу наказания. Полученный фундаментальный научный результат может использоваться как в общей теории права, так и во всех отраслевых юридических дисциплинах для анализа феномена наказания и применения в законотворческой, правоохранительной, судебной деятельности, связанной с применением наказаний. Материалы и методы: эмпирические данные о системах уголовных наказаний (United States Federal Sentencing Guidelines); методы классического математического анализа, геометрические методы – нахождение периметра, площади, объема; построение функций Кобба-Дугласа. Результаты исследования: получена единая формула наказания в виде любой из равнозначных: A – WL или A – LP:2 – L2 или A – WP:2 – W2 и дана ее интерпретация.

The Offense-Specific Nature of Gender and Familial Responsibility in United States Federal Sentencing, 2010–2016

Prior sentencing research has identified leniency afforded to females (compared with males) and those with familial responsibility (compared with those without). Studies have also found that the effect of defendant gender, familial responsibility, and their intersections depend on the type of offense examined. What remains unclear is the situations in which these factors matter more or less. The purpose of this study is to disaggregate extralegal effects by understanding how gender, familial responsibility, and their intersections influence federal sentencing outcomes across various offense types. Findings from this study suggest that gender, familial responsibility, and their combinations exert different influences depending on the (a) dependent variable and (b) offense type examined.

Judge Weinstein's Contributions to Sentencing Law

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.

A Judge’s Attempt at Sentencing Consistency After Booker

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.

Jack Weinstein

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.

Race, Ethnicity, and Punishment for Federal Sex Offenses: Changing Composition in Child Pornography and Sex Abuse Cases and Temporal Disparity in Sentencing Over Time

In response to several high-profile violent offenses against children over the past two decades, Congress has enacted several pieces of legislation aimed at increasing punishment for those convicted of federal sex offenses. Coinciding with these enhanced penalties was a demographic shift in the composition of those prosecuted for these offenses. In the federal criminal justice system, sex offenses fall into two main categories: child pornography and sexual abuse. The racial and ethnic makeup of individuals charged for federal sex offenses has significantly changed over the past 15 years. The current study utilizes federal sentencing data from the United States Sentencing Commission for the years 2006 to 2017 to explore the nature of punishment for these offenses over time. We also employ multivariate analyses to examine differences in punishment for the two types of offenses and employ disaggregated analyses by offense type to examine temporal change in racial/ethnic disparities in sentence length and departures from the federal sentencing guidelines. Findings demonstrate that convicted individuals who are Black and Hispanic are receiving harsher sentences over time net of controls for other key predictors such as age, sex, criminal history, and presumptive sentence length. Implications for how legislatively enhanced penalties and changing demographic makeup of those convicted for these offenses may have introduced extra-legal disparity into federal sentencing are further discussed.