EDNY Judge Weinstein Issues Notable Sentencing Decision on Incapacitation of Adolescent Violent Offenders

Armed adolescent gang members who robbed a household of adults and young children are the subject of another of EDNY Judge Weinstein’s nuanced academic sentencing decisions. As he explains in United States v. Rivera, 2017 WL 6210813 (E.D.N.Y., December 7, 2017), the case requires him to balance the need to punish a brutal crime, incapacitate young men with limited ability to escape powerful gang ties, take account of their young age and underdeveloped brains, and promote their rehabilitation in a justice system ill-equipped to provide the kind of structured environment and programming necessary to prevent recidivism. In the end, he sentences the three to at or near the 7-year mandatory minimum sentence required by their guilty pleas, but in the process, presents an extensive survey of the literature on incapacitation.

Tracing the evolution of incapacitation as it became the main focus of sentencing in the latter part of the 20th Century, Judge Weinstein points to studies that show its inefficacy: longer sentences actually increase the potential for recidivism. He points to national and international research that diversion and mentoring of young violent offenders has proved effective, but notes the limited availability of such programs in Brooklyn, where the Rivera defendants resided. In fact, ignoring the enlightened literature, he notes that the New York Senate recently passed the “Criminal Street Gang Enforcement and Prevention Act” requiring higher incapacitation to enhance gang prosecution and stem gang violence. Finally, he puts mandatory minimum sentencing under the microscope as “the greatest byproduct of the penological focus on incapacitation.” These “eliminate the ability of judges to take into account the full range of sentencing considerations . . . and deny defendants’ the opportunity to benefit from alternatives to incarceration.” Moreover, he adds, such sentences are now the subject of a sustained re-evaluation by state and federal sentencing systems.

This is an immensely rich and complex decision full of useful data for the sentencing advocate to cite. It joins Judge Weinstein’s many other sentencing memoranda that explore the conundrum of fashioning an individualized sentence in the context of all the competing purposes of sentencing, with a particular focus here on defendants who are inheritors of generations of inequality. For more of Judge Weinstein’s decisions, check out my “Social Science at Sentencing: A Survey of Federal Sentencing Decisions, 2005-2017” memo in the Resources section of this blog.


JaneAnne Murray