Published in The New York Times
By ALAN FEUER DEC. 8, 2017
It seemed routine when Judge Jack B. Weinstein issued stiff prison sentences to three young men who had robbed a family at gunpoint in the Cypress Hills Houses in East New York last year. After all, when the men broke into the family’s apartment, there were, in addition to adults, five children inside — all of them 10 years old or younger. The robbers, moreover, had been accused of working with two violent street gangs, which New York law-enforcement officers have been cracking down on — especially in the city’s public housing projects.
But then on Thursday, two months after the sentences were handed down, Judge Weinstein, of Federal District Court in Brooklyn, published an order claiming that he had been forced by law and circumstance to be tough on the defendants. 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.”
Federal judges have for decades grumbled about mandatory minimums, and so it was not all that unusual that Judge Weinstein wrote that “they place a tremendous financial burden on society” without doing much to enhance public safety. But by complaining about the lack of social programs for gang members, he touched his gavel to what has traditionally been the third-rail of the criminal-justice system: sticking up for those accused of violent crimes.
“The comparatively lengthy sentences in this case are made necessary by mandatory minimums,” he wrote, “but also by the finding that the available alternatives to incarceration or diversion programs are either insufficient or unavailable for violent defendants, like the present ones who have been trapped in a gang culture, and condemned to a life of poverty and probable crime.”
The federal bench in Brooklyn has long been known for its progressive bent. Last summer, one of Judge Weinstein’s colleagues, Raymond J. Dearie, gave a speech to a local bar association urging prosecutors to “jettison the madness of mass incarceration.” At the age of 96, Judge Weinstein himself has undertaken what seems to be an end-of-career attempt to reform the legal system, calling in recent months for more female lawyers to have speaking roles in court and scheduling a potentially explosive hearing in January to investigate perjury by police officers.
n his order on Thursday, he acknowledged that the Police Department’s crackdown on gangs — designed with the help of federal authorities to get guns and violent criminals off the street — had helped enormously in driving crime down to near-historic lows. But he coupled that with an admission that its gang investigations have been criticized of late “for taking too wide a sweep in labeling and criminalizing anyone associated or ‘conspiring’ with a gang.”
Judge Weinstein also noted that while the Eastern District of New York — as Brooklyn’s federal system is known — has some of the country’s best alternative-sentencing programs, primarily for young, nonviolent offenders, the government should add more of those types of programs for young people found guilty of violent crimes. In the last five years, he said, only about 7 percent of the participants in Eastern District alternative-sentencing programs had been accused of violent crimes.
“Thus,” he wrote, “even youthful offenders, charged with violent offenses, are typically not given the opportunity to avoid incarceration or participate in programming that would enhance their skills and reduce recidivism.”
His order — formally known as a Statement of Reasons — came in the case of Tyshawn Rivera, Malik Folks and Dylan Cruz, all of whom were in their teens or 20s when they burst into an apartment in the Cypress Hills Houses in May 2016 and at gunpoint robbed the family who lived there of clothes, jewelry and $15,000 in cash. Federal prosecutors said the men were members of either the Crips or the Bloods, street gangs that had plagued the housing project for years. But the defendants denied any gang affiliation and were not prosecuted under a federal gang statute.
At a hearing in October, Judge Weinstein sentenced the men to between seven and eight years each, but in his recent order he said he had done so not necessarily because justice demanded it, but rather because in New York City there were no alternative programs.
He noted, however, that Boston has a program — the Boston Reentry Initiative — that provides mentorship, case management and social services to young defendants who have been released from prison and remain at risk for continuing a life of violent crime. The program was successful, he said, “in reducing recidivism” among its participants.
“More court sentencing alternatives and community programming, in addition to the N.Y.P.D.’s targeted policing, are necessary to discourage gang violence, as well as to assist defendants attempting to escape their environs after a conviction or sentence,” Judge Weinstein wrote. “Lengthy mandatory minimums, and the penological theory of incapacitation continue to be justified by a lack of sentencing alternatives for society’s “unredeemables.”