In a federal case I've written about a few times because I handled the appeal, the defendant, 23 years old, no prior felonies, living in California, was fingered as the source of 250 grams of crack when the mule was busted in Colorado. The mandatory minimum sentence was 10 years. After the trial was over, the judge added 4 kilos of crack on to the 250 grams when another cooperating defendant said at his sentencing hearing, with no corroboration, that he had bought a kilo a month from this person for four months. The sentence: Life in prison, no parole. The last paragraph of the 10th Circuit's opinion affirming the sentence read:

Although it is tragic for a twenty-three-year-old to spend the rest of his life in prison, Congress has provided this penalty for drug crimes involving large quantities of cocaine. We must follow the law.

The rule has always been that juries decide whether a defendant is guilty or not guilty and the judge decides the sentence. But under the sentencing guidelines, the judge decides the quantity at a sentencing hearing long after the jury has finished its work. At the sentencing hearing, the burden of proof is preponderance of the evidence, not proof beyond a reasonable doubt. Hearsay is allowed. So when a judge decides, without the jury, to add on four kilos to the 1/4 kilo the jury found, and change a ten year sentence to a sentence of life without parole, he's changing the finding of the jury.

There are other subtle ways this comes into play, and not just in federal court. I remember trying a case in the '80's where three defendants had brought some cocaine to Colorado from California in a suitcase. My client was the mule. First offense. He had been in this country for a week, looking for a job and spoke no English. Young 20's. Married with babies. The three were tricked into coming to Colorado, to a motel, where the delivery was videotaped.

While distribution of coke carried a 4 to 8 year penalty, if you imported it into the state of Colorado, you were a "special offender." What the jury wasn't told, was that if they found the defendant was a special offender, the judge would have to sentence him to between a minimum of 24 years and a day and a maximum of 48 years.

He got 24 years and a day. Several years later, I was checking in at the airport in Denver to fly somewhere when the airline person helping me recognized me and said she had been on the jury. Because the foreman had attended the sentencing, she knew the judge had given the defendants 24 years and a day. She was appalled.

Every few years I check the Department of Corrections Database to see when he's getting out. Last I checked, it was this year. What does he have to go back to?

Law professors will argue from their ivory perches that juries should be kept in the dark as to sentencing matters. See, Orrin Kerr. I think Simple Justice makes a better point.

Of course, this was not a decision to be read with a pointy hat on one's head. That's the hat one wears when blinding affirming precedent, never to be changed once carved in stone.

One has to assume that Judge Weinstein realizes that his decision will not be embraced by the Second Circuit, with a rousing chorus of Kumbaya following oral argument. Judge Weinstein is a brilliant jurist, but more importantly, a fearless one. He's been around long enough to have gotten beyond the desire to climb the ladder of judicial importance, and now seeks only to do whatever he can to make people think. He knows the harm the law can do, and is trying, in his own way, to change it.

For those who criticize judges for activism, Judge Weinstein is unlikely to be their model of the perfect judge. For those who are slaves to stare decisis, this decision is going to make their hair stand straight up. But for those who believe that Congressional micromanaging of the criminal justice system to meet some politically valuable vision of an acceptable tyranny of the majority, who are happy to do as much harm as necessary to those who bring inadequate political clout to the table, and for those who continually seek to find a more fair and just system despite its inherent inadequacies, Judge Jack Weinstein is a hero.

There is little likelihood that smaller minds with narrower visions will find Judge Weinstein's decision persuasive or legally fulfilling. But that wasn't the judge's point. At least he got some people thinking, and so he accomplished his goal to some extent. Hopefully, more people will learn of of this decision, a discussion will ensue, and Judge Weinstein's effort will not have been in vain.

I find Weinstein's reasoning persuasive. But then, I'm not a scholar, just an advocate. He notes:

In 2005, the Supreme Court considered whether the Sixth Amendment is violated “by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact . . . that was not found by the jury or admitted by the defendant.” Booker, 543 U.S. at 229. It is well settled, the Court noted, that the Constitution protects “every criminal defendant ‘against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.’” Id. at 230 (quoting In Re Winship, 397 U.S. 358 (1970)).

There are two issues at play here. One is the Sixth Amendment, which I think applies to the federal appeals case I describe above. The other is jury nullification, which would apply to the state case.

As Judge Weinstein notes:

Those who would limit the powers historically exercised by juries must now consider the Supreme Court’s Booker-Apprendi line of sentencing decisions, see United States v. Booker, 543 U.S. 220 (2005); Apprendi v. New Jersey, 530 U.S. 466 (2000), and its reinvigoration of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004).

These decisions bear on the question of whether juries should be informed of the sentences that would result from guilty verdicts. They emphatically reaffirm three propositions that support the argument that juries can be trusted with this information.

First, the right to a jury trial is a fundamental constitutional right; it provides a check on the courts, executive, and legislature equivalent to that of the voter on elected officials. Second, the Supreme Court, in interpreting the Sixth Amendment, relies on criminal practice the Court believes existed in the late eighteenth century. Third, the Supreme Court is willing to overturn long-established federal law, with some measure of reasoned disregard for the consequences of doing so, when it determines that precedent impinges on the powers historically exercised by juries (or, in Crawford, the historical scope of the confrontation right).

These three principles make it inappropriate to cavalierly and without analysis treat jurors' power to refuse to convict (or to be informed of mandatory minimums) as improper.

Kudos to Judge Weinstein, and may his opinion be read and considered by judges everywhere. As always (think Arlo Guthrie and Alice's Restaurant here) first it takes one person, then two, then three, until it becomes a movement.

A movement is what's needed.