THE ANGUISH OF THE DRUG WAR JUDGES

Forced To Hand Down Harsh Sentences That Defy Their Consciences, Many
Federal Judges Are Speaking Out Against A System That Makes Them Do
"Ungodly Things"

Stanley Sporkin doesn't have any skeletons in his closet. The deeds on his
conscience are all a matter of public record. They were done in open court,
his court, the Honorable Judge Stanley Sporkin presiding. One of them
followed a famous George Bush (the elder) sound bite: that dramatic moment
early in Bush's term when the president revealed that the epidemic of
illegal drugs was so out of control that crack cocaine was being sold
"across the street from the White House."

It fell to Judge Sporkin to sentence the young man who had been invited by
undercover agents to do business at that location. They had even given him
street directions to 1600 Pennsylvania Ave., which was far from his usual
hangouts. They also had made sure that he sold them enough crack to
guarantee a 10-year mandatory-minimum sentence. Sporkin says the whole
thing was basically entrapment, but his hands were tied by the law. The
judge was a captive in his own court.

So he gave the kid 10 years. The boy fainted dead away on the spot.

Last year, shortly after Sporkin retired from the bench, a TV reporter
called to say the kid had been released, having served 10 years in federal
prison. "When I think now about what I did, ech, I feel awful," he says.
"When I think about so many cases. With mandatory-minimum laws you can't do
a thing, but even cases under the sentencing guidelines are unbelievable.
They make you do ungodly things in the drug war if you're a judge."

Sporkin had served as CIA director Bill Casey's trusted general counsel;
before that, he had made a big name for himself as chief enforcer for the
Securities and Exchange Commission. So he was no softie when Ronald Reagan
called him to the bench in 1986. But he did not expect to be made an
"unwilling executioner," as he puts it.

Sporkin is far from alone among judges in his sense of anguish and
frustration, but few Americans seem to be aware of these black-robed
dissidents at the heart of the drug war. Maybe that's because judges are
quite unused to trying to plead their case, and we hardly know what to make
of it when they try.

America has generally been tough on crime and tough on drugs, but it has
never been this tough on judges. For the first 200 years of the republic,
federal trial judges like Sporkin had almost complete discretion in
sentencing convicted criminals. While they could not exceed the maximum
penalty under law, they could reduce or suspend sentences virtually at
will, except under a few statutes, with no review by an appeals court.

As everyone knows, the Constitution guarantees the right to trial by jury
of your peers. But nowhere does it mention a right to be sentenced by a
judge. Apparently the Framers of the Constitution assumed that the
distinguished individuals appointed by the president and confirmed by the
Senate to serve as judges with life tenure would be a safe bet to hand down
appropriate sentences in individual cases. Too bad they never wrote that down.

In 1989, that kind of handcrafted justice gave way to a new concept:
mandatory sentencing. That year, the Supreme Court gave its blessing to
mandatory sentencing "guidelines," to be written by a new agency, the U.S.
Sentencing Commission, a seven-member body appointed by the president and
confirmed by the Senate. The court also ruled that Congress had full power
to set mandatory-minimum penalties, subject only to a very mild bar against
cruel and unusual punishment.

Stripped of their traditional authority, trial judges have been forced to
impose sentences that leave some of them feeling that their black robe is
more like a butcher's smock. "You look at these drug defendants and their
situation. It seems to me that if you are a human you need to have a heart
to see the individual, their circumstances," says Judge Paul Magnuson, a
1981 Reagan appointee to the U.S. District Court in Minnesota. He presents
a common case: "You have before you a young woman who has been given $100
and a free airplane ride, maybe her first airplane ride in her life, to
carry a couple of kilos of cocaine around her waist. She's punished by the
weight. She doesn't know who put her on the airplane, who she's to meet
when she arrives. She doesn't know anything. She has no one to trade in. So
she gets no break from the prosecutor. I've had that case. We all have.
They just catch them at the airport and I basically have to rubber-stamp
whatever they give me."

The neutering of the judges was not just the work of law-and-order
Republicans, nor did it begin with the drug war. The move to curb judges
was actually spearheaded by liberals in the 1970s, who enlisted Sen. Ted
Kennedy, D-Mass., to take up the cause. Liberals felt that judges were
generally too severe in sentencing, often racially prejudiced, and in any
case much too arbitrary, took up the case. Their thoughts naturally turned
to a bureaucratic solution. Bring in the experts, start drafting a
sentencing manual, was their proposal.

It wasn't long before conservatives realized that they could use sentencing
guidelines to achieve the exact opposite result: to get tougher on
criminals. Where Kennedy saw angry judges lashing out erratically at kids
and minorities, Sen. Strom Thurmond, R-S.C., saw softhearted judges giving
dangerous lawbreakers slaps on the wrist. He wanted mandatory guidelines
with teeth in them, and he wanted to give prosecutors the right to go to a
higher court when they thought a trial judge was too lenient. In 1984,
Kennedy and Thurmond finally passed the law establishing the Sentencing
Commission, which issued its first guidelines in 1987.

Today, the judges still remember the Kennedy-Thurmond romance -- and they
can tell you who came out on top. "When the guidelines were adopted,
Kennedy got taken to the cleaners by Strom Thurmond," says Alan Nevas, a
1985 Reagan appointee to the U.S. District Court in Connecticut. "Kennedy
was persuaded that the guidelines would relieve the disparity he saw in
sentences against minorities. But that's been turned on its head. If you
look at the impact of the guidelines on minorities, it's enormous."

What got turned on its head first, according to Judge Jose Cabranes, an
appeals judge on the 2nd U.S. Circuit Court of Appeals in New York City,
was the notion liberals had that the commission would be insulated from
political pressures. In "Fear of Judging," a book Cabranes coauthored with
his wife, Yale law professor Kate Stith, in 1998, they argue that "in
reality the [commission] from its inception has been highly visible ...
acutely sensitive to the political environment in which it operates, and
controversial."

Diana Murphy did not have to read the book to get the point. A judge on the
8th U.S. Circuit Court of Appeals in St. Louis, she has chaired the
Sentencing Commission since 1999. Almost the first thing she said in a
telephone interview -- right after making it clear that she did not seek
the commission post -- is that "in order to be effective, I have to be
attentive to many constituencies. Nothing the commission does is effective
unless Congress agrees with it."

Murphy, who was appointed to the commission by former President Clinton,
staunchly defends the current system, noting many ways in which the
guidelines are more flexible than they appear. In any case, she says, the
old ways were hardly ideal. "There is a value to having standards to
compare with." Before she was elevated to the appeals court by Clinton, she
was a trial judge, appointed in 1980 by Jimmy Carter. "I remember in the
old days hearing federal judges give speeches almost bragging about how
powerful they were. An 'I can do anything' kind of thing. And there was no
recourse. Now each side can get real relief on appeal. The guidelines
provide objective standards and overall principles."

Even critics of the new system agree with Murphy that the old ways were too
loose and that trial judges' sentencing decisions should be reviewable. As
for the current system, Murphy concedes there are problems with it, but
argues that those responsible for them aren't judges, but legislators. "You
put me in the situation of having to defend the system, but I'm not the one
that created it. I'm here to say that people may overlook the virtues of
the guidelines and that we are working hard to make them better. But if you
want to make them just advisory, you could go talk to people on the Hill. I
think you would find very little momentum to make the guidelines advisory."

Asked why the legal system should distrust the very men and women it exalts
for their sobriety and judgment, Michael Horowitz, the lawyer who
represents the Justice Department on the Sentencing Commission, says that
this is "not a fair way of phrasing the issue. I don't think it's about not
trusting judges. I think it's trying to write a guidelines system that
evens out deviations from the norm."

Like Murphy, Horowitz relates tales of the pre-guidelines days, when he
worked in Manhattan's federal court. He recalls how savvy defense lawyers
would jam the court when a notoriously lenient judge was presiding so that
they could plead their clients guilty and get a light sentence. "That
didn't make sense," he says. On the other hand, he says, the guidelines
contain many flexible elements to avoid injustice, such as downward
departure, which allows a judge to argue that the case presents factors not
considered in the guidelines. "Judges who think there is an unfairness in
the system can in fact ameliorate that unfairness through the departure
mechanism and other factors if they put their minds to it."

So, where a nonviolent drug offender used to hope he would draw a soft
judge, now he has to find a softhearted judge who also knows how to
navigate the Guidelines Manual -- a book that weighs more than the Internal
Revenue Code, according to Cabranes -- and the relevant case law. Could a
softhearted judge even rescue the girl caught with two kilos at the
Minneapolis airport? "I think if you checked the case law on couriers and
sentencing, you'd find a lot of appeals courts upholding downward
departures in those circumstances," Horowitz says. In very few cases are
judges' hands really tied, he argues.

Maybe Judge Magnuson hasn't boned up on the guidelines enough. At any rate,
he says he is forced to impose sentences that leave him hurting. "The
trouble is, I have to look the person in the eye at sentencing," Magnuson
says. "Often you have to look at the children too, who are sitting in the
front row. And you realize that when you sentence the mother, as a
practical matter you're giving a delayed sentence to the children."

Magnuson harbors no bitterness toward Murphy, who used to serve alongside
him in Minneapolis. He knows that with drug sentences, all she and her four
fellow judge commissioners can do is "recommend" a guideline that is tough
enough to placate lawmakers: The commission always faces the possibility
that Congress will decide that it's too soft on drugs and pass a draconian
mandatory minimum. She can't make the cup pass from the trial judge; at
best, she can mix up a slightly less painful poison.

In February, Magnuson came about as close as a judge can to cursing out
Congress in a judicial opinion in a case of conspiracy to manufacture
methamphetamine. He refused, as he put it, "to sacrifice Shellie Lee
Langmade on the altar of Congress's obsession with punishing crimes
involving narcotics." He called the government's conduct in the case
merciless, relentless, bewildering, unconscionable and patently unjust. But
the most he could do was to recuse himself and allow another judge to
impose the 10-year minimum. The prosecutor had successfully appealed
Magnuson's attempt to avoid the mandatory and give Langmade a "mere"
70-month sentence. That appeal hinged on whether Magnuson had to count a
misdemeanor plea on Langmade's record relating to two 1993 bad checks that
totaled $83.50, for which she received one year of probation. Had it been
364 days of probation she would have been cleared.

Judge Robert Pratt of the Southern District of Iowa says he doesn't dare
defy the guidelines, though he tries to apply them "creatively." Nor is
quitting an easy option: "The argument for staying here at this point is
that the next son of a bitch may be worse than you are," Pratt confides. He
was appointed by Clinton in 1996. "I thought this was a good job before I
got it. I didn't come here to put away poor people for low-level,
nonviolent drug crimes, but that's what the job amounts to. All you can do
is bitch about it."

Almost as bad as slamming the helpless, he says, is having to go easy on
the savvier, more culpable defendants, whom prosecutors reward with lighter
sentences for "snitching" on their friends and associates. "It used to be a
defense lawyer's skill was in convincing a judge and jury on the facts and
the law. Now the skill in being a lawyer is who can run to the U.S.
attorney's office quicker and snitch. That's what the law is -- who can
snitch best," the former defense attorney says. So much for proportionality
in sentencing, which was supposed to be the main objective of the
sentencing guidelines.

Pratt is one of the few judges who have tried to address the general public
on the issue. His impassioned Sunday commentary in the Des Moines Register
in January 1999 merely echoed in the wilderness.

Judge Sporkin could have warned Pratt. In 1993, in one of the many speeches
he has given on drug sentencing, Sporkin made two points (aside from
denouncing the "monstrous" nature of the sentencing rules): First, "the
most vocal critics of the system have been judges," and second, "The
criticism has largely fallen on deaf ears." Sporkin said this was a sad
puzzle to him and his colleagues.

"We're very bad at making noise," Magnuson says. "You have to bear in mind
that we're not political animals. Most of us were at one time, of course,
but that was before we became judges. It's not our job to go out in the
popular media and pound the table. It's our job to deal with the cases
before us." Most of the complaints about the system that are on the public
record appear in judicial opinions, such as Magnuson's in the Langmade
case. "I think judges are being pretty candid in their opinions, but of
course the world doesn't look at them," he says.

Bending the ear of a legislator has little more effect, according to Judge
Brian Barnett Duff, a 1985 Reagan appointee to the U.S. District Court in
Chicago. "They don't listen to you if you don't have a vote," says Duff,
who served several years in the Illinois Legislature and as a state court
judge.

Cabranes, who is politically adept enough to be at the top of everyone's
list for the next Democratic Supreme Court nomination, sums it up in his
book, writing that "Federal judges, for all their vaunted independence and
high status, are poorly positioned and generally unable to influence
national legislative policy."

Kafka, who would have admired the complexity of the hundreds of pages that
comprise the Sentencing Guidelines Manual, once said, "One must be silent,
if one can't give any help."

But Judge Duff is talking -- at least in his own court. He remembers the
days when his authority forced him to "struggle with heart, brain and soul"
to set the just sentence. He says some judges who arrived at the bench
after the guidelines went into effect have never felt that struggle of
ethics and conscience. Now, in the many cases where he feels the punishment
greatly exceeds the crime, all he can do is flap his clipped wings and
apologize to the defendant. "It's important for the man who is going to
jail to know that there are people who know it was unfair and who care, and
that the judge himself was in a spot."

Judge Nevas in Connecticut says he's proud of being a "tough sentencer"
with no tolerance for illegal drug trafficking. But he also finds himself
apologizing in his own court, telling defendants and their loved ones that
he believes their sentences are too harsh. "You have to be careful," he
says. "You don't want to overdo that, to be in a position to make everyone
feel that the system is so bad that here you have the judge speaking
against it. That would create a disrespect for the system, and undermine
the legitimate efforts of law enforcement to curb the drug-dealing
activity. There's a balance you have to strike."

Nevas says he doesn't say anything personally to the prosecutor in
troubling cases, "because of course they are taking directions from more
senior people in the U.S. attorney's office." But occasionally he tries to
use a back channel to the prosecutor: "Sometimes I can work through the
probation officer. I try to use downward departure, which gives us some
limited possibilities. I'll suggest to the probation officer that I think
the sentence is much too high, that I'd like to depart downward, even
though I recognize that the basis for the departure is very thin in this
particular case. But I ask why doesn't he go out and talk to the prosecutor
and see whether, if I do depart downward, the prosecutor will get bent out
of shape and take an appeal. It's all informal and behind the scenes."

Even Pratt, who's about as disgusted with the system as the judges get,
leaves the prosecutors alone: "I don't give the prosecutors trouble. They
know what a joke the drug war is. They also have a lot of ways of ignoring
the law to get a result, though they wouldn't go on the record to say that.
They've told me that privately ... The only people that don't know what's
up are the policymakers in Washington. The prosecutors are forced to bring
us one sad case after another. It's Kafkaesque. There's no actual person in
the room or the building that I can think of as the enemy. It's an
amorphous bureaucratic process that emanates from Congress."

Given the reticence of most judges, it's hard to know if the few I spoke
with (having identified them as critics of drug sentencing) are a waning
minority or the tip of a big iceberg of dissent. Sentencing Commission
chairwoman Murphy believes that the level of frustration among judges is
"much less than when the guidelines were introduced." She and others see a
distinct cleavage between "the more senior judges who have never reconciled
themselves to the change" and judges who never experienced the old system.
Nor are all the senior judges hostile to the guidelines, she says. "I
myself am a convert," as are others among the older judges.

It's hard to say. None of several other judges I attempted to interview to
get a contrasting viewpoint would respond.

Judge Pratt seems divided on the question. He cites surveys from the
mid-1990s that showed 86 percent of district judges wanted more sentencing
discretion and more than half wanted to junk the guidelines. But he also
says, "My sense is that most judges are comfortable enough. The job pays
the same; why ruffle feathers? It's not their business what the Congress
does. Whatever they tell them to do, they'll do."

One leading opponent of the drug-sentencing system, Judge John Kane of the
U.S. District Court in Colorado, a 1977 Jimmy Carter appointee, says he
runs into lots of judges who say they agree with him on the issue but
believe that judges should not tear down the law. "My response is, But you
are under an affirmative ethical duty under the Code of Judicial Conduct to
do what you can to improve the law. Still, I don't find many mavericks."

Judges feel it's their duty to uphold the law, not necessarily to change
it. With harsh drug laws, the question is whether a spark could ignite the
tinder of moral and professional resentment against drug sentencing and
whether that in turn might budge the public.

James Gray, a state judge in Orange County, Calif., would like to be that
spark. In a just-published book, "Why Our Drug Laws Have Failed and What We
Can Do About It," Gray is trying to rally the troops, publicizing the
protests of more than 40 judges, including, he says, about 20 who are going
public for the first time.

"Judges are singularly able to discuss this because of their experience.
People will listen," Gray says. "But they have to say plainly, 'This is an
atrocity the law is forcing me to commit.'"

Gray thinks that the judges are uniquely placed to legitimize critical
examination of the drug war, overcoming what he sees as "drug warriors'
attempts to squelch any discussion." The demonization of critics is very
effective, Gray says. "One state court chief justice told me I was right
that the war on drugs is not working. He said he sees that every day. And
it's right for sitting judges to talk about it. But he said the risks were
too high. If he spoke out he'd have to spend all his time defending
himself. That is a screaming tragedy."

Gray, a former district attorney, was himself a drug warrior. He had to
make a tough decision to come out against it. "As an elected judge, I
thought I'd face a recall eight years ago, but I didn't. And I got
reelected in 1996, despite the D.A.'s efforts to find someone to run
against me. There are some things more important than job security. It's
the most critical issue facing our country today."

Given the job security concerns and peer pressure judges face, as well as
their inexperience in political activism, Gray faces an uphill battle in
his attempt to enlist his brethren against the excesses of the drug war.
Upstaged by the bully pulpit of the drug czar's office and hard-line
legislative rhetoric, the quiet moral anguish of judges seems unlikely to
ever draw much of the public's attention.

Meanwhile, individual judges will continue to wrestle with their
consciences. Judge Robert Sweet, a 1978 Carter appointee to the U.S.
District Court in Manhattan, came out for drug legalization 11 years ago.
Tagged and gently isolated as "just a legalizer," he has calmly continued
speaking out and trying to mitigate drug sentences.

But he's a realist. "Should all the judges rise up? Wouldn't it be nice if
they would? But I don't think it will happen."