Weinstein on Sentencing (2021)

Abstract

Has Judge Weinstein, over the course of decades, fundamentally changed the contours of federal law and practice in criminal sentencing? I think he would say “not enough.” But that’s not for lack of trying. In addition to many law review articles and speeches,1 he has written scores of sentencing opinions that exceed the standards of the most exacting academic—thorough, analytically impregnable, and heavily footnoted—attempting to get the Second Circuit, the Supreme Court, and Congress to remake sentencing law.

He has not waged these battles alone—but more than any judge I can think of, he has waged them continually and on every front, with powerful intelligence and humanity. In these ways, he is one of the creators of today’s new sentencing landscape, in which judges are allowed to consider not just what the Sentencing Commission proclaims, but what justice requires.

Never content to rest on his laurels, Judge Weinstein has, in the years since United States v. Booker2 and its progeny, turned his sights primarily on the Federal Sentencing Guidelines’ (“guidelines”) tough cousin, mandatory minimums. And, never shy about stirring up a little controversy, he’s taken on sentencing in terrorism and child pornography cases.