The Brooklyn Rail

MAY 2011

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MAY 2011 Issue
Editor's Message From The Editor

CITYNOTES: Honor in the Court

In late March, the legendary federal judge Jack Weinstein issued an opinion notable for both its legal and intellectual range. In U.S. vs. Bannister, a case involving 11 Brooklyn defendants convicted of running a drug operation at the Armstrong Houses on Clifton Place in Bed-Stuy, the Eastern District Court judge took on the issue of mandatory minimum sentencing. In preparing his 125-page opinion, Weinstein drew upon a dazzling array of leading scholarship and recent journalism. Yet rather than simply reach his decision in the chambers, in early March the 89-year old judge also paid a visit to the Armstrong projects.

The facts of the actual case provoked little controversy. The 11 men—10 black, one Latino, mostly in their 20s—all pleaded guilty to selling crack and heroin from the fall of 2007 until their arrest in January, 2010. Last November Weinstein himself had sentenced them to terms ranging from three to 15 years. Still, according to the judge, “unspoken questions” remained: “How did these 11 come to this pass, and what should be done with them?” As Weinstein explains in Bannister, ever since the War on Drugs began in the 1980s, the first question is no longer asked. Meanwhile, the judge finds the current inflexible answer to the second to be simply unacceptable.

The key piece of legislation in the Reagan-era War on Drugs was the Anti-Drug Abuse Act of 1986, a somewhat misleading title because the act primarily targeted low-level drug dealers (not drug kingpins or drug users). As Weinstein details, the legislation established mandatory sentencing guidelines—and in disproportionately targeting crack, initiated a “pattern of racial disparity in the enactment and enforcement of drug laws continuing to the present.” The law stipulates mandatory prison terms for crack dealers regardless of the individual circumstances of their cases. But in his Bannister decision, Weinstein aims to find out what led Derrick Tatum, Damien Bannister, and the other members of the Clifton Place Crew into a life of crime. In so doing, he’s making a powerful case for judicial discretion.

Before delving into their specific pasts, Weinstein first sees some common threads among what he terms “the crew.” In his view, “They lacked appropriate male models in their homes, they had an inadequate education, and they grew up in an environment of personal abuse, illegal drugs, and general poverty.” To make a simple, old-fashioned argument that the “environment made them do it” would undermine the judge’s examination of individual circumstances. Conversely, to ignore the role of an individual’s climate and conditions means that history plays no part in a person’s life choices. Naturally, Weinstein leans toward nurture.

For Weinstein, the crew’s story begins in the Jim Crow South, then moves north with urbanization, where it is sustained by continuing segregation in the labor market, schools, and public housing, and is never redressed by the welfare state. The judge then makes a case for a “culture of poverty” that feminists may find troubling. In his view, “The absence of fathers and the prevalence of single-female-headed families gravely impairs the ability of children, particularly boys, to internalize positive values as they mature.” Citing a 2010 New York Times article, Weinstein further argues that the problem of underachievement in schools by African-American males “may result in part from parenting practices.” Regardless of the causes of the problem, Weinstein also notes that charter schools and other current educational remedies have not had “significant salutary effects for children with histories” like the members of the crew.

To support his points about urban segregation, Weinstein pulls down from his shelf the work of many leading scholars, in particular William Julius Wilson and Orlando Patterson. But he also frequently refers to an older source, the 1968 Kerner Commission. (Appointed by LBJ in order to identify the causes of urban riots, the commission was co-chaired by Mayor Lindsay.) Among the prescient observations of the Kerner Report Weinstein cites is that “in January 1965 the unemployment rate for Negro teenagers stood at 29 percent. This problem will now become steadily more serious.” As the judge documents, in areas such as Bed-Stuy, the current rate now exceeds 50 percent. Merely by invoking the Kerner findings, Weinstein strongly suggests that the report’s memorable statement—“Our nation is moving toward two societies, one black, one white—separate and unequal”—still obtains.

In Weinstein’s view, the War on Drugs clearly continues the patterns of racial inequality. His critique is exhaustive. He makes ample use of the work of criminal justice scholars including Michelle Alexander, whose essential work The New Jim Crow clearly shaped his ruling. He brings in radical studies of the drug trade, such as Tom Feiling’s Cocaine; and elsewhere in the decision the elder statesman even consults the Urban Dictionary, in order to define a “G Pack” ($1,000 quantity of drugs). Most importantly, Weinstein draws on his own experience on the bench, as illustrated by this trenchant passage:

Illegal drugs are dangerous products...But the moral burden for drug use is borne primarily by the users themselves. Putting aside cases where users become helplessly addicted as children, drug habits are generally the product of voluntary choices. The notion of the drug pusher preying upon defenseless, sober individuals, coercing them to sample addictive drugs so that they may become lifelong customers, has little congruence with reality as observed in court.

In just one paragraph, Weinstein has subverted a quarter-century war.

The judge then shifts his attention to the targets of the war, small-time operators like the Clifton Place Crew. Weinstein recounts their life stories in detail, and while the patterns may not be surprising, they are nonetheless depressing—marked by parental drug use, child abuse, psychological disabilities, poor health care, bad schools, and all the rest. Notably, the father being around often made things worse. Roger Patrick’s dad beat his mother and siblings “with extension cords, sticks, an iron, and a frying pan.” During Pedro Torres’s childhood, “he and his family lived in four different shelters, including two for victims of domestic violence.” Meanwhile, many of the mothers—some working for the city, or as home health aides—struggled to raise the family amidst the violence and dire circumstances.

Most members of the crew made their own attempts at steady employment, doing maintenance for NYCHA or janitorial work for the MTA. A few took advantage of the job training programs offered by the Bed-Stuy Volunteer Ambulance Corps and the Bed-Stuy Restoration Corporation. But the employment history of the oldest defendant in the case, Cyril McCray, is perhaps most illustrative. Born in 1964, he has “worked as a security guard, day laborer, stock person, janitor, maintenance worker, and helper to a truck driver.” Weinstein notes that McCray also held various unskilled positions during previous stretches in prison, which raises the still-bleaker fact that having done time prevents ex-cons from even getting many entry-level jobs in the first place.

Even so, McCray’s rap sheet is lengthy, and includes many incidents of violence towards women. Many others in the crew, including Damien Bannister, Roger Patrick, and Derrick Tatum, have been convicted of several violent robberies and other non-sexual, but quite menacing crimes. In 2005, for example, “[Roger] Patrick and two others, wearing masks, attacked a victim by choking, punching, and kicking him. They also pistol-whipped him with a BB gun.” In his ruling, Weinstein aims to give a complete picture of the defendants’ violent lives, connecting the brutality of their upbringing to the brutality many of them inflicted upon the streets of Bed-Stuy.

But lest one think that Weinstein is a soft-hearted liberal, ready to excuse the actions of the criminal underclass, consider his ultimate opinion. He finds that of the eight sentences he first issued in November, the mandatory guidelines caused four to be too harsh, whereas four of the sentences were appropriate (he issued a separate ruling for the other three members of the crew). Christopher Hall’s 10-year sentence, he writes, is “justified by his brazen use of guns,” which contribute to the “climate of terror” pervading public housing projects. The same rationale holds true for McCray’s 10-year sentence. And Weinstein sees the stiffest penalty, Derrick Tatum’s 15-year term, as fitting because of his role as the ringleader of a criminal operation.

But Weinstein’s emphasis is on the other four sentences, which he sees as “disproportionate” and a result of federal mandatory minimums. Here again, the judge asserts the role of environment, stating that “Well-resourced, attentive parents would have had the knowledge, ability, and insight to protect their children from many of the difficulties that befell these defendants in their youth.” All true, but what is to be done now with these wayward adults? The War on Drugs may fill upstate prison cells, but will sending low-level drug dealers to prison for five years (or more) really accomplish anything beneficial for the neighborhoods like Bed-Stuy?

If prisons provided a range of counseling, education, and job training programs, then maybe they would contribute to the solution. But as it stands, they offer little more than time away. For people like those in the crew, Weinstein writes:

Whatever tenuous connection they retain to the lawful, supportive world will likely be diminished after years of forced separation in prison. Incarceration will make entry into the job market more difficult. Remaining will be the root problems that have largely brought them to this pass: poverty; dysfunctional families; mental and physical problems; legal and de facto housing segregation; segregated and inferior schools; and an economy that appears to have little need or concern for low- and semi-skilled workers. Such individuals constitute a permanent underclass with almost no opportunity to achieve economic stability, let alone the American dream of upward mobility.

In just one paragraph, the judge has fully mapped out the battlefield of the War on Drugs.

So what’s a concerned jurist to do? As mentioned, Weinstein champions the right of a judge to determine an appropriate sentence, to weigh mitigating factors and the impacts that extended prison terms may have on families and communities. And when Weinstein asserts that “Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster,” his claim is difficult to deny. It comes at the end of a hefty opinion that is nothing if not wise.

Yet the amount of time and effort that Weinstein put into this ruling also makes him seem a rather exceptional jurist. Consider the responses to his visit to the Armstrong Houses in early March. As Heidi Cesare, the lawyer for Jawara Tatum, told the Daily News—“I have no idea what the judge is looking for, [but] I know he takes these sentencing decisions very seriously.” Meanwhile, a local resident named Chantel Welcome viewed the judge’s visit as “crazy,” further clarifying just how rare Weinstein is. “It’s good he came out to see because usually they don’t care where these people come from,” Welcome explained. “They just care if they’re guilty and then sentence them.”

If all those on the bench were as dedicated and learned as Weinstein, judicial discretion would indeed be a cause to rally behind. But there are many factors—most notably caseloads at the lower courts; and the political pressures on, and career ambitions of, judges—that make many jurists far less thoughtful in their approach to sentencing than he. Some judges may be as intellectually voracious as Weinstein, whereas others may simply be as politically ambitious as Clarence Thomas.

Still, Weinstein’s case is a strong one. He argues that judges should be able to choose from an array of alternative sentencing options. This list would include more comprehensive parole supervision; a range of counseling and education programs; and, of course, job training and placement. These are laudable options, and many states are moving in this direction. As Weinstein notes, the 2009 reform of the Rockefeller Drug Laws eliminated mandatory sentencing for first- and second-time offenders in New York; meanwhile, austerity-minded states from South Carolina to South Dakota have also passed similar legislation in recent years. Such moves have allowed judges more discretion in sentencing, thus greatly increasing—but by no means guaranteeing—the likelihood that first-time drug offenders won’t be locked up for long stretches.

The inherent uncertainty of judicial discretion raises serious questions, though. Yes, it’s better to have judges determine sentences rather than prosecutors, who currently have far too much power; but the best way to eliminate bias is for legislators to create more sensible sentencing parameters. States have the ability to establish concrete alternative sentencing guidelines, requiring that non-violent offenders initially receive the types of parole supervision and the training programs Weinstein outlined. Judges could then be allowed more discretion in sentencing repeat offenders. At the federal level, it would be up to Congress to enact similar changes.

With states already moving toward reform, now may be precisely the time to push for the type of hybrid sentencing system I just described. Yet no matter where one stands on the issue, Judge Weinstein’s perspective must still be given its due. His career is a tribute to the bench.


The Brooklyn Rail

MAY 2011

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