Bench Memos

Weinstein’s Wild Whining

In May 2011, senior federal district judge Jack B. Weinstein issued a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibited applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaced his discussion of the ruling (and his prediction that the Second Circuit would reverse Weinstein):

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.

Yesterday, a Second Circuit panel (consisting of one Clinton appointee, one Bush 43 appointee, and one Obama appointee) unanimously reversed Weinstein’s ruling. Within hours, Weinstein responded with this memorandum arguing that the case “exemplifies the sometimes unnecessary cruelty of our federal criminal law.”

On a first read of Weinstein’s memorandum, I thought that he presented a plausible argument. On reviewing the Second Circuit’s ruling, however, I discovered that Weinstein had badly obscured the essential facts of the case. He contends in the brief “Facts” section of his memorandum that the defendant “never produced, sold or deliberately exchanged [child] pornography.” (Emphasis added.) But the Second Circuit’s opinion offers a very different account, as it states that the defendant admitted that

he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download “a ton” of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. [Emphasis added.]

The Second Circuit’s opinion also includes lots of other very ugly facts (too ugly to repeat here) that would lead very few people to conclude, as Weinstein did, that the defendant’s sentence was unjust.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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