In a sentencing note issued Thursday, U.S. District Judge Jack Weinstein justified his October sentencing of three convicted defendants to lengthy prison terms, but not before lamenting the unavailability of diversion or other programs for violent offenders that he said were “trapped in a gang culture, and condemned to a life of poverty and probable crime.”
Defendants Tyshawn Rivera, Malik Folks, and Dylan Cruz were all adolescents when they entered a Brooklyn apartment on May 14, 2016, where both adults and children as young as seven months were present. As Weinstein notes, the trio “terrorized and robbed the family at gunpoint,” for which all three were charged and convicted in federal court.
Weinstein sentenced Rivera, who was 19 at the time of the robbery, to 90 months in prison, six months more than the mandatory minimum. Folks, who committed the crime on his 20th birthday, was sentenced to the mandatory 84 months. Cruz, who was 24, was given the harshest sentence of 96 months.
Each has a compelling backstory that Weinstein detailed: Rivera had moved in and out of shelters as a child, and suffers from multiple mental health issues, including post-traumatic stress disorder. Folks’ mother died when he was 12, after which he became homeless. Cruz’ mother was in foster care when she had him, and he spent a large portion of his teen years in social service facilities.
All three were in possession of firearms when they invaded the Brooklyn apartment, where they and accomplices stole $15,000 in cash, $10,000 in U.S. Postal money orders, as well as clothing and jewelry. Police also painted the assailants as having deep ties to violent street gangs.
Weinstein wrote that sentencing in the case presented the court with “a number of troubling … issues.” The inability to escape a social situation that could easily see the defendants return to similar acts meant some kind of detention was likely necessary.
Just as troubling, for Weinstein, are the “limited” abilities of the federal justice system to provide the “structured environment and programming to prevent recidivism” for those convicted of violent crimes as well as the lack of discretion faced by judges dealing with mandatory minimum statutes.
Weinstein noted that the kind of harsh sentences being placed on the defendants are “usually unnecessary to increase public safety, or prevent recidivism.” Likewise, these kinds of sentences “place a tremendous financial burden on society through excessive incarceration.”
While they may be required, they are also without alternatives, Weinstein said.
“The comparatively lengthy sentences in this case are made necessary by mandatory minimums, but also by the finding that the available alternatives to incarceration or diversion programs are either insufficient or unavailable for violent defendants,” he wrote.
This isn’t the case for other nonviolent defendants, especially not in the Eastern District. The district has been pointed to as a model for success by former U.S. Attorney General Eric Holder for its innovative alternatives to incarceration and pretrial diversion programs launched under then-U.S. Attorney Loretta Lynch.
These sorts of models exist for violent offenders, Weinstein noted, but not in the U.S. He pointed to diversion programs in Germany and the Netherlands that see between 6 percent and 10 percent of those convicted ever make it to prison. Both countries, Weinstein said, rely heavily on noncustodial sanctions and diversions, even for relatively serious crimes such as burglary and aggravated assault.
Likewise, Weinstein notes at length that despite historic crime lows in New York, police policy and recent legislation have turned toward takedowns of gangs. Gang affiliation is often tied to public housing residence, and innovative charging techniques have seen even peripheral members looped in on conspiracy charges that could result in long prison sentences.
Weinstein notes that the three defendants, while alleged gang members affiliated with the Cypress Hills Houses in Queens, were not charged under anti-gang or RICO statutes.
Even so, Weinstein points to statistics and reports that indicate that programming—not incarceration, which is expensive and ineffective at halting both crime and recidivism, he suggests—has shown to have the ability to deter future criminal behavior. The Eastern District alone shows that. But without the ability to also have violent criminals, or those involved with gangs, participate in these kinds of programs, the alternative is incarceration.
“More court sentencing alternatives and community programming, in addition to the NYPD’s targeted policing, are necessary to discourage gang violence, as well as to assist defendants attempting to escape their environs after a conviction or sentence,” Weinstein wrote. “Lengthy mandatory minimums, and the penological theory of incapacitation continue to be justified by a lack of sentencing alternatives for society’s ‘unredeemables.’”
A spokesman for the Brooklyn U.S. attorney’s office declined to comment on Weinstein’s statement.
Rothman, Schneider, Soloway & Stern name attorney Frank Rothman, whose firm handled Cruz’s defense, lauded Weinstein, generally, as brilliant, while also caring. On this issue, however, Rothman said he was disappointed that Weinstein’s clear sympathies didn’t keep him from tacking on more time than mandatory.
“His analysis is correct. His ability to identify the problems is spot on. My quibble is that the solution to the problems isn’t giving the guys a little bit more time,” Rothman said.
Quijano & Ennis name attorney Peter Quijano represented Rivera. Private attorney Michael Gold represented Folks. Neither could be reached for comment.