Is Jack Weinstein Running For Congress?

This past week, an interest group made an assertion I find impossible to believe: Three quarters of those accused of possessing child pornography have actually abused children. Almost every single one of the men I have represented in criminal cases arising from the possession of such images is guilty of far less. Most are simply curiously, a few suffer other, related psychological maladies. In the dozens of sex offense cases I've handled, I have yet to see the equivalent of pornographic reefer madness.

If you have not seen the film Reefer Madness, check it out. It's a 1936 propaganda film about the dangers of smoking marijuana. Marijuana, you see, is the gateway drug of the masses. Start with weed, and end up choking on far more serious drugs. The descent to madness starts with but a single puff. The line between fact and fear is easily blurred.

The line is erased today when it comes to sex offenses. One of the primary culprits blurring that line is the National Center for Missing and Exploited Children. Ernie Allen, president of NCMEC, recently told The New York Times: "Real children are harmed in the production of these images and these same children are harmed every time these images are downloaded and viewed." He presumably gets paid a decent sum for uttering this specious idiocy.

Yes, real children, when they are used to produce a film or photograph, are harmed. The production of child pornography misuses children and should be a crime. But the children are not harmed anew when, in some mildewy basement thousands of miles away, a shamed-faced man sneaks a peak at the images. To suggest otherwise is to live in a fool's paradise.

But opposing sex offenses is a cheap and easy way to score points politically. So every time lawmakers want to feel good about something, they slap a new law, a new restriction, a new mandatory minimum sentence on those accused of sex crimes. Child sex, I have said before and I will repeat again, is the new crack. We want to stamp it out, so we criminalize it. Just when it begins to dawn on folks that the war on drugs really doesn't work, we start a new moral crusade. What is it about our political culture that requires always that there be a villain, some other than we can attack to displace all that makes us uneasy?

Few judges have the courage to call this madness out and to refuse to go along with the charade we call justice. It is not justice to put a man in prison for looking at pictures. It is not justice to lock away a young man for flirting with a police officer pretending to be 14-year-old runway model in heat. Justice requires individual assessments of harm and risk. Most judges, however, approach the task of sentencing like assembly-line workers. Along comes a defendant, the judge looks at the instruction manual produced by lawmakers, and then the judge clips the defendant so that he fits the image the cookie cutter yields. This sort of judging brings the judiciary into disrepute.

That's why I loved this morning's story about Jack B. Weinstein, an 88-year-old federal judge in Brooklyn. Weinstein's been on the bench for 43 years. When he sees a law that is offensive to justice, he refuses to enforce it. Oh, that President Barack Obama were to find a few more Weinsteins to put on the bench. Instead, we get bloodless automatons like Elena Kagan.

Weinstein has refused to impose mandatory minimum sentences when the sentence did not fit the defendant. He has dismissed cases when he thought the Government's charges were a mockery of justice. He takes a robust view of judging, and refuses to do unnecessary harm to those accused.

This makes Weinstein lawless in the eyes of many. A judge is merely to apply the law, not make it. We want lawmakers, after due deliberation and consideration of societal norms, to pass laws. Judges don't have the same fact finding power as lawmakers do. They ought not to overstep and substitute their judgment for those of lawmakers.

I get all that, and in general I support a limited view of the judiciary. But I simply have little confidence in the wisdom of legislators. They too easily succumb to the self-righteous blandishments of groups such as NCMEC. The separation of powers ought not to yield a regime in which blind passion neuters reason.

We used to permit juries to nullify the law when they thought it was wrong. In the early twentieth century, the Supreme Court forbade the practice. We need to rethink that rule. Shouldn't juries have a say in what is done in their name? Judge Weinstein plans to do what trial lawyers regard as the unthinkable in a child pornography trial: He is going to tell the jury what penalty the defendant faces if convicted. That practice almost never occurs. We make infants of jurors all the time, telling them lies and half truths, and then declaring we have done justice. God bless Jack Weinstein for refusing to play charades with the lives of others.

We need more jack Weinsteins on the bench. At least, I think we do. We've a few too many fools in Congress, and far too many crusading for the right thing but using he wrong means.

Comments: (2)

  • I could not agree with you more. NCMEC and others...
    I could not agree with you more. NCMEC and others have succeeding in convincing prospective jurors and others that no once charged with any "sex offense" involving children can ever be "cured."
    In addition, the children whose pictures are on the web don't even know about it until the FBI tells them. Who is causing what harm?
    Where do we find the studies that most viewers have not touched children?
    Posted on May 22, 2010 at 8:30 am by anna
  • It is Salem Witch Hunts-time all over again,... De...
    It is Salem Witch Hunts-time all over again,... Deja Voodoo all over again, in the infamous words of Yogi Berra (?!?). Also Fells Acre Day Care Center, Malden, Mass., one of the biggest fiascoes in 20th C. Mass. jurisprudence, some of whose principal players are still in office today in the 'commonwealth'. Ha!
    This judge Weinstein is a hero, and should be recognized as such for his heroism in standing up to Amerikan judicial/legislative thuggery of the highest order. Correct the errors of your ways before it is too late!
    Not telling the jury the likely sentence in a conviction against a defendant is not only judicially inexplicable but morally incomprehensible and nonsensical. More transparency at every step of the way is a necessary prescription for a judiciary which thinks it can pull the wool over the eyes of a hapless jury after 'engineering' false convictions in trumped-up cases without merit, probable cause or merit.
    Rogue, poorly trained prosecutors will try anything to get a conviction, because they know they can get away almost anything without accountability or repercussion. These bottom-feeders get paid to pick the low-hanging fruit of the easy conviction, with out regard to defendant's personal consequences, unintended family consequences, unfortunate business consequences, or economic consequences to the neighborhood and community-at-large. The greater the skulduggery committed by them, the greater the likelihood they will be promoted to their next level of total incompetence. We see this over and over again, while the electorate snoozes, dreaming the fanciful lies that they are being well-served by their state or federal government.
    It is not necessary to name names. The names know who they are in the korrupt state of CT and the U.S. Attorneys Office.
    Posted on May 22, 2010 at 1:10 pm by William Doriss

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