Judge Weinstein died on June 15, 2021 at the age of 99. This is a re-run of our post from December, 2016 when he was only 95. Our excuse for the repetition is that we’d like to add to the many posthumous tributes a vignette of his rare quality of being so interested in everything.
We temporarily suspended our judge-panning policy the other night to go see Judge Jack Weinstein of the Eastern District of NY (that’s Brooklyn and some minor surrounding territories). He was at the Brooklyn Historical Society, and not in a glass case either.
Back in the ’80’s, when everything from teenage uppityness to tornadoes in the Pacific was attributed to drugs, the obvious answer was to enact mind-bogglingly long mandatory sentences for “drug pushers.” In 1993, Judge Weinstein wrote in the NY Times that the sheer quantity of drug prosecutions had put the justice system in crisis. His district alone was annually sentencing hundreds of “drug mules,” mostly poor people from Nigeria and Colombia “cheaply hired for one trip,” to years and years of prison.
He was immediately lambasted by Senator Phil Gramm. The average murderer, said Gramm, can expect to spend only 1.8 years in prison! For rape, the expected punishment is 60 days! Is it any wonder that our nation is deluged by a tidal wave of crime? It’s all very well to blame TV and the failure to teach moral values in our schools, but the main culprit is soft sentencing by judges like Weinstein!
A year or two later, the Judge started a seminar on drug law reform, inviting students not only from Columbia Law School where he’d been a professor of evidence for years, but also from own Acme School of Law and Refrigerator Repair across the street from the federal courthouse. We met in his chambers every Thursday afternoon where he provided sodas while we listened to lectures by an assortment of thinkers about the War on Drugs.
We particularly remember a federal prosecutor gleefully describing the gadgets that her office had bought with drug forfeiture money. “We have infra-red binoculars that are so powerful,” she said, pointing out the window to the Brooklyn Bridge, “that if someone’s standing there with a newspaper, we can read the print.” The Judge suggested that it might be a teeny bit unconstitutional for prosecutors to get financial benefits from enforcing the drug laws, but so far nobody seems to have taken him up on that.
Another lecturer, a smug European intellectual in corduroy pants, assured us that crime was, of course, a purely social construct. After he was mugged on the Brooklyn Bridge while the Feds were too busy reading newspapers through binoculars to notice, he wrote to the NY Times, angrily protesting that the American system is soft on social constructs.
One Thursday afternoon, we trooped into the courtroom to watch the sentencing of a man who’d flown up from Colombia with a balloonful of cocaine in his digestive system. A cheerful youth, he told the Judge how he’d spent his time at the federal detention center learning English and getting in shape. “My wife will be pleased,” he said, showing the Judge his biceps.
“What made you decide to smuggle drugs?” the Judge asked. He really wanted to know.
“In Colombia they told me it was no big deal,” the man answered. “They said everybody in America badly wants drugs and would be glad to have them.” Good thing Senator Gramm wasn’t there.
Our final class was on a chilly winter Sunday at the Judge’s home on Long Island Sound. We sat at his dining room table presenting our proposals for drug law reform. The Columbia students, who’d all earned two or three Ph.D’s before going to law school, presented highly intelligent, exhaustively researched, utterly eye-glazing papers. We Acme students, recognizing that the life of the law is not logic but experience, chose topics like, “A Friend’s Experiences on LSD.”
Our own paper was a parody, naturally, about a society where cars are illegal because they cause so many deaths. The point being that it’s Prohibition, whether of alcohol or drugs, that makes them dangerous. Our presentation was received in sober silence. Just as we were about to sink into the floor, a loud voice came from the other end of the table. “HA HA HA!” boomed the Judge, slapping his thigh. “HA HA HA!” The others finally joined in.
After several more hours of papers, he suddenly got up and opened the glass door to the patio. “Quick, quick, come look at this!” he said. We gathered around. He was pointing to the sunset over the Sound and the ducks gathering on the water for the night.
We didn’t see him again for 20 years, until the other evening at the Historical Society. At 95, he’s as active as ever on the bench and his judicial biography would fill volumes. Now that drug law reform is conventional wisdom and “sex offenders” have replaced drug pushers as Public Enemy #1, he’s writing decisions suggesting that decades in prison for looking at child pornography might be extreme. The only visible change in him was that his eyebrows had grown into fuzzy white caterpillars and he walked with a cane.
He talked about growing up in Brooklyn in the ’30’s, remembering the open trolley cars and the ships in the harbor. He admitted to coming from a lawless family: his grandparents fled Russia to escape arrest in 1905. His father, after being laid off from his job, provided the family with food that “fell off the back of a truck.” But if you went fishing off the coast of Brooklyn back then, why, the fish just jumped into the boat!
He talked about how fortunate he was to have a “completely free” education, working for the Al Burns Trucking Company 60 to 70 hours a week and studying the Greek philosophers at Brooklyn College at night. Al would drive him to class, give him time to study for exams and overlook his failings as an employee, such as forgetting to close the safe.
In the Q&A session, someone asked about his well-known fearlessness of being overruled. “I really don’t care,” the Judge answered. “But sometimes I make mistakes and should be overruled.” He recognized that there has to be “a disciplined legal system,” but at the same time, he couldn’t go along with unjust laws. Otherwise, he’d be like the pre-Civil War judges who upheld slavery because it was the law. The challenge was “how to get that play in the joints” of the legal system. Fortunately, he said, he has “brilliant law clerks who can explain to me how I can distinguish prior cases.” That got a big laugh.
Asked what he was proudest of, he answered, “Being able to get up in the morning.” He wrapped up by saying how much he loved his work. His delight was palpable. “I’m glad I was rejected for Chief Judge of the NY Court of Appeals,” he said. “I would have had to retire at 70 and what would I have done with myself for the last 25 years?”
Thanks, Squawk. I needed that occasionally someone wise and with a sense of humor slips thru the system, or used to.
When I still practiced law, we had a student in the office who got a clerkship interview with Judge Weinstein. Preparing for the interview, he asked me if he should ask the judge whether he was a curmudgeon. I never found out if he got the job, but he had a distinguished career as a public defender.
What did you advise your student?