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"Let Judges Be Judges".........NOT

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One of the most frequent objections to determinate sentencing  --  binding guidelines and mandatory minimum statutes  --  is that we should "let judges be judges."

Within limits, that's hardly a bad idea; judges must perforce have a considerable degree of discretion.  But without limits, it's a prescription for debasing law  -- debasing it with will, temperament, ideology, half-baked political trends and whatever else is floating through the judge's head on any given day.

An apt illustration came yesterday with Judge Jack Weinstein's almost instantaneous reaction to the Second Circuit order unanimously reversing his lawless sentencing of a child porn distributor.  What the reaction ostensibly does is direct the defendant to appear for re-sentencing.  What it actually does is, shall we say, give an unfortunate hand gesture to Weinstein's bosses on the Court of Appeals, whom Weinstein all but brands as brain-dead barbarians.  For example, it takes Weinstein all of three paragraphs to lament that the sentence he must now impose  --  30 months longer than the original  --  renders the defendant's punishment the equivalent of human sacrifice

The order is, in its own way, educational, even important.  It makes clear how utterly willful, obdurate, and frankly arrogant, federal district judges  --  the ones who do the sentencing  --  can be.  It's not just that Weinstein views Congress's statute as the pygmy dwarfed by His Giant Intellect.  And it's not just that he twists the Eighth Amendment beyond recognition, as the Second Circuit surgically demonstrates. It's Weinstein's apparently complete failure to recognize that he is, not a candidate running for political office, not the PR guy for the NACDL, and not a Supreme Court Justice, but a judge on an inferior court who has been ordered by the higher court to correct his mistake.

This is what we know is lurking out among the districts.  It's not just Jack Weinstein.  And it's a stark illustration of why we should keep mandatory minimum sentencing  --  to avoid the fickleness, lawlessness and arrogance of "letting judges be judges."

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