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Judge Jack Weinstein: Supervised release is too punitive, especially for marijuana users

July 5, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle
Hon. Jack B. Weinstein, U.S. District Court judge for the Eastern District of New York. Eagle file photo by Rob Abruzzese
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Public officials are often reluctant to admit when they are wrong, but on Monday the 96-year-old Federal Court Judge Jack Weinstein issued an opinion where he laments systemically imposed periods of supervised release.

Weinstein went as far as to say that some of his own punishments have been too harsh, especially when it comes to marijuana users.

“I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation,” Weinstein wrote in a 42-page opinion piece released Monday.

“I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.”

The judge promised that in future cases he will impose shorter terms of supervised release, that he will give greater consideration to the appropriateness of conditions, will terminate supervised release when necessary and will avoid handing out punishment for those who violate supervised release based upon habitual marijuana use.

“Violating a condition of supervised release can lead to — and in instances must lead to — additional incarceration,” Weinstein wrote. “This situation can trap some defendants, particularly substances abusers, in a cycle where they oscillate between supervised release and prison.”

He pointed out that when supervised release replaced federal parole in the 1980s, it was meant for rehabilitation purposes and was never meant to punish defendants.

While praising the court’s Probation Department and pointing out the difficult task those officers face, the judge admitted that over-supervision is a possibility. He said the court’s Probation Department has taken measures to prevent this by tapering off supervision over time, creating a “low intensity” supervision program and recommending early termination when officers feel a defendant has been properly rehabilitated.

In the opinion, Judge Weinstein often referred to the fact that while still illegal at the federal level, marijuana is being legalized all over the country and also discussed steps being taken in Brooklyn, New York City and the state toward decriminalization. He also discussed the racial disparities in enforcement and the fact that public opinion in favor of legalized marijuana has increased in recent years.

Judge Weinstein criticized supervised release in the opinion and pointed out that despite the fact that it’s only required in less than half of all federal cases, it is regularly imposed in nearly every sentence. He then pointed to a study done by Christine S. Scott-Hayward that shows that there is no evidence of an increase in recidivism rates when low-risk people are not supervised and that low-risk people participating in post-prison supervision programs can actually increase the risk that they will reoffend.

“For some, supervised release can be a trap where they bounce between supervision and prison,” Weinstein wrote.

This opinion was issued as part of the case U.S. Vs Tyran Trotter. Trotter, a 22-year-old from Queens, pled guilty in 2016 to one count of conspiracy to distribute heroin. There was no evidence that he ever used a gun or even possessed one. He was sentenced to two years in prison with a three-year term of supervised release, which was the federal mandatory minimum in his case.

Trotter violated the terms of his supervised release by using marijuana and failing to comply with its drug treatment orders. He was given an additional four months in prison and was recommended to receive an additional two years of supervised release.

The judge pointed out that aside from his marijuana use, Trotter has not committed any crimes, has been working and is, “likely to lead a productive, law-abiding life.” The judge then pointed out that in this case, punishment imposed from violation of his supervised release would inhibit Trotter’s rehabilitation.

“If his supervision continues, he will probably end up in the almost endless cycle of supervised release and prison,” Weinstein wrote. “Because the revocation statute requires jail time for drug use … he is likely to be sent back to prison, to be followed by a term of supervised release, which, when violated, will again send him back to prison. Trotter’s term of supervised release is terminated … Continued supervision would not serve the rehabilitative goal of supervised release.”

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