A friend of mine, a senior federal judge, explained to me simply that he was never going to make the Supremes, had life tenure, and if he couldn’t use his position to do the right thing, he had wasted it.  He didn’t start out that way as an ambitious judge, but figured it out along the way in time to make it matter.

Orin Kerr remarked that a “courageous” judicial decision is one that “stretches the law but nicely matches the observer’s policy preferences.”  Bill Otis has questioned whether the same “courage” would be praised had the judge deemed the “right thing” to be a substantially harsher sentence, ignoring law and guidelines to mete out severe punishment if that was what the judge decided proper.

But we’re talking about the Honorable Jack Weinstein, who wrote 400 pages to explain his refusal to apply the mandatory minimum to “C.R.,” a child porn defendant.   The 2d Circuit, as expected, reversed in United States v. Reingold, notably refusing to conceal the defendant’s name as Judge Weinstein did.

A day later, and apparently already prepared in expectation of the inevitable, Jack Weinstein (courtesy of Howard Bashman’s How Appealing) issued his 9-page rejoinder:

An important duty of an Article III district judge is to prevent injustices by the government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right—a duty even—to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.

The judge laid out his position, and continued to explain it in the pages that follow, without excuse or apology.

Trial judges and others—close to their communities and people—seek answers to critical questions facing our legal system: “Is it not time for more rational and proportionate sentencing? Have not some mandatory minimum sentences crossed the verge into being unconstitutionally cruel and unusual?”

It is activism, pure and simple, but of the sort that belongs in the trial judge’s hands, even though Congress has tweaked the independence of the judiciary by telling it how to do its job.  If you view the Sentencing Guidelines as an unconstitutional imposition of the legislative branch on the judicial branch, as every judge held until the Supreme Court said no, it was mere political micro-managing of the judicial function.

Mindful of Orin’s admonition, that courage is in the eye of the confirmation bias of the beholder, and similarly mindful of Bill Otis’ argument that courage is a two-way street (though he only says that to make the point, since his dogmatic view is that courage is ever-increasing harshness), I nonetheless conclude that Judge Weinstein is courageous.

Unlike others, I have no personal sympathy toward people who sexually abuse children. I am repulsed and disgusted by their conduct, and similarly toward the conduct of those who take sexual pleasure is looking at it and watching it.  So no, this does not comport with my observer’s policy preference in that way.

My revulsion is so deep that I can’t bear to sit in the same room with someone who engages in or enjoys the sexual abuse of children. My inclination is to leap across my desk and beat them. It’s an impulse that requires all my strength to prevent. So, no, the individuals who engage in this conduct do not get my sympathy. Not for what they’ve done.

Judge Weinstein runs through a litany of perspectives, most notably that of Attorney General Holder and the Sentencing Commission, conceding that mandatory minimums are a failed concept.  Not only have they failed to serve any positive function beyond the joys of retribution, but they have caused terrible problems, unanticipated and unjustified problems, that destroy lives beyond the intention of Congress, the Executive and the public interest.

That is what makes it different, and Judge Weinstein courageous.  It is not some neutral policy, where his preference, and mine, favors a different outcome than does a Bill Otis, or maybe even an Orin Kerr.  It is a policy crafted for simplistic political benefit, to show how “tough on crime” politicians can be to the applause and adoration of their easily fooled constituents, that sounds fabulous to the groundlings.  It’s a terrible policy because it fails to take into account that it does not serve any useful purpose and causes substantial unintended harm.

For many years, decades in fact, the people who were unaffected by this policy continued to support blind, knee-jerk imprisonment, believing (note that I don’t use the word “thinking”) that it was for the best.  Not until they came to realize that the United States of America was the world’s screw, that it was costing us a fortune, a debt to be paid by our children, for no good reason, did the unaffected begin to consider that it might not be as great an idea as previously believed.

Judge Weinstein realized all this and more, that we have created a permanent underclass of sex offenders who pose no threat, and yet will never, for the rest of their lives, be welcome anywhere in society.  Actually, forget “welcome,” and say “tolerated.”  There is no place for them again, and they are left to wander from bridge to dumpster for the rest of their lives to find shelter.

So what distinguishes Judge Weinstein’s opinion and makes it courageous is that his opinion conforms to our fundamental precepts that we punish people only to the extent necessary, and no more, to achieve societally legitimate goals.  In our embrace of harshness, disproportionality and retribution, we have forgotten our tradition of redemption. Judge Weinstein reminds us of it, and takes the lumps for being so courageous.