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Under the blindfold, does justice weep?

Provided by, "Punch and Jurists, Ltd."

United States v. Molina, 963 F.Supp. 213 (E.D.N.Y. 1997) (Judge Weinstein)

At the conclusion of this decision, Judge Weinstein rhetorically asks: "Under the blindfold, does justice weep?" His unstated answer is clear. She weeps with increasing anguish and rage! The defendant in this case was one of four defendants who attempted to rob an armored truck. They were all caught and, although deemed equally culpable in the eyes of the law, their sentences were as follows: Santiago - 408 months in prison; Molina - 135 months in prison; Serrano - 60 months I prison; and Castro - 0 months in prison.

Why such disparate sentences - especially since the Sentencing Guidelines were created to assure "reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders?" (U.S.S.G. ,Ch. 1, Pt. A-3).

As Judge Weinstein explained, there were several reasons. First, he observed that in general "[s]entences are now determined primarily by the discretion of the prosecution and the mechanics of the Guidelines." (Id., at 215). In fact, quoting from Judge Conaboy, the Chairman of the Sentencing Commission, he noted that "almost everyone but the prosecutors agree that the system as it's presently operated gives enormous power to the prosecutor and almost a control over the sentencing process." (Id.)

Beyond that, the specific reasons for the wildly disparate sentences are revealing. Santiago got 408 months because the prosecutors elected to charge him (and no on else) with a crime that brought into play a mandatory 30-year gun sentence. Serrano got 60 months because he became a snitch and testified against the others. Castro, the gun-supplier, was acquitted. In Judge Weinstein's mind, that acquittal was unquestionably the product of the Government's dreaded taboo - jury nullification. "Jury nullification of sentences deemed too harsh is increasingly reflected in refusals to acquit. Jurors are aware of the huge sentences that result from conviction." (Id., at 214). He even attributed the jury's refusal to convict defendant Molina of use of a machine gun during the crime as another example of jury nullification. Molina was originally given a sentence of 78 months, in large part because Judge Weinstein refused to impose a six-level sentence enhancement that the Government wanted because a seventy-nine year old bystander was struck in the foot by a ricocheting bullet fired from the gun of one of the armored car guards. In an earlier appeal (reported at 106 F.3d 1118 (2nd Cir. 1997)), the Second Circuit ruled that Judge Weinstein had erred by refusing to impose the six level enhancement; so Molina's sentence was reluctantly increased from 78 months to 135 months. Judge Weinstein could not help commenting that "Molina, although no more culpable than any of his co-defendants, more apt to be rehabilitated, and more likely to be harmed and preyed upon in prison, will languish under a sentence much longer than that of all but one of his co-defendants." (Id., at 215).

To help explain the absurdity of that result, Judge Weinstein also observed that he made a big mistake: he sought a trial "his constitutional right - rather than quickly working out a plea deal with the government." That left him open to the vagaries of the sentence that the prosecutors demanded - not the sentence that was just or fair. As Judge Weinstein concluded: "[T]he Guidelines are rigid in formulation and, thus, often produce results that are patently unfair . . ." (Id.) That's why the statute of justice weeps. Feel free to use this snippet in any way you want. I think it tells a great tale. Hope all is well. Your site is great! Sincerely, Peter Schmidt Punch and Jurists, Ltd. Don't forget to visit us on the Internet at

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