REAGAN-APPOINTED JUDGE REFUSES TO ENFORCE HARSH U.S. DRUG LAWS

Hell No, We won't throw away the key

SERIOUS CIVIL DISOBEDIENCE AGAINST THE NATION'S DRUG SENTENCING LAWS
ARE BEING STAGED -- BY PROSECUTORS AND SENIOR JUDGES.

Quick: What furious debate over the parameters of morality, legality and
personal behavior has the American political and judicial system been at
vehement war with itself over? No, not the ever-morphing
Clinton/Jones/Starr/Lewinsky/Willey scandal, but an issue likely to affect
vastly more people. Drugs. Drug use, drug policy, drug enforcement. While
the press has been consumed with Tailgate, slowly simmering discord over
the war on illegal drugs has suddenly reached a rolling boil.

Some skirmishes have filtered through to public consciousness. Last Monday
it was Drug Czar vs. AIDS Czar: White House drug policy advisor Barry
McCaffrey lambasted White House director of HIV policy Sandra Thurman's
advocacy of federally funded sterile needle-exchange programs for addicts.
Needle-exchange efforts, McCaffrey complained in a letter leaked to
Congress, undermine "an unambiguous 'no use' message."

The following day, it was California vs. the feds. The Justice Department
went to court seeking an injunction shutting down six Northern California
medical marijuana clubs, operating under the protective umbrella of
Proposition 215 passed by state voters last November. Last week, four
California mayors wrote to the White House demanding that the Justice
Department "respect local expertise" on medical marijuana and abandon the
crackdown. If Attorney General Janet Reno's shutdown of marijuana clubs
moves forward, San Francisco District Attorney Terence Hallinan is
threatening to employ city workers to distribute the drug to those who
medically require it -- perhaps the most dramatic act of local
law-enforcement defiance of the Justice Department since the days of racial
segregation.

But one of the most incendiary and startling confrontations has been
conducted behind the scenes, in the normally staid chambers of the
Washington, D.C., federal courts. The cast of characters: a crack addict
and petty street-level dealer named Alvin Webb; U.S. District Judge Stanley
Sporkin, named to the bench by Ronald Reagan after serving as the CIA's top
lawyer; and Judge Douglas Ginsburg of the U.S. Court of Appeals for the
D.C. Circuit, best known as the jurist whose Supreme Court nomination in
1987 went down the tubes when Ginsburg admitted smoking pot in the 1970s.

Alvin Webb smoked and sold crack on the streets of the nation's capital for
three years. He was a junkie, never a high-powered dealer. "The suppliers
would just give me the stuff to give to the people ... I never received
any money," he testified. "All I received was just drugs for that." An
undercover DEA agent bought crack from Webb on two occasions in February
1994: five grams on the first occasion, then six -- small amounts that
would have meant little jail time. Then, according to court records, the
DEA agent deliberately decided to ratchet up his third purchase from Webb
- -- 55 grams -- because under federal sentencing guidelines that meant a
mandatory prison sentence of nine years or more.

Webb obtained the court's permission to enroll in a drug rehab program,
which might have allowed him to qualify for a lower sentence, but he failed
at rehab after a month, ending up back on the streets smoking crack. He was
caught 18 months later and was finally brought before Judge Sporkin for
sentencing last year.

Thus far, a familiar story of a crack addict in the criminal justice
system. So imagine Webb's surprise -- and the federal prosecutor's -- when
Sporkin the Reaganite took one look at the case and decided, then and
there, that he simply could not reconcile the harsh prison sentence
required by federal drug laws with the shattered individual standing before
his bench. "If you were in a different economic bracket in this country,
you'd probably be out at the Betty Ford Clinic," Sporkin said to Webb,
according to court records. He blasted prosecutors who wanted Webb's
sentence extended even further to punish him for his 18 months on the
street.

"It's because he doesn't control his own body. That's the problem. He
doesn't control himself. He's out of control. He didn't do it to defy
anybody. He hasn't done it in a defiant act. He did it because it's
impossible for him."

It wasn't just Webb's pitiable state that roused Sporkin's conscience. It
was the DEA's routinely Kafkaesque practice of "sentencing entrapment" --
in this case, the DEA agent's deliberate instigation of a larger drug buy
in order to trigger a heavier sentence.

All this led Sporkin to commit a rare judicial version of civil
disobedience (much as Hallinan now threatens in San Francisco). He declined
to hand Webb the huge sentence required by law, which he describes as
"grossly disproportional to the crime." Instead of a decade behind bars,
Sporkin sentenced Webb to 41 months, worrying that "even 41 months is much
too long for you." What's more, Sporkin virtually dared the outraged U.S.
attorney's office to challenge his ruling: "I realize that you people hold
all the weapons in this war on drugs, and I'll give you an easy one to get
me reversed," he declared.

And appeal the Justice Department did: to a three-judge appeals court panel
headed by Judge Douglas Ginsburg, the former pot smoker. And it was
Ginsburg who four weeks ago wrote a blistering take-down of Sporkin,
thundering that the latter's attack of judicial conscience "wreaked havoc
with the administration of justice." Sporkin, Ginsburg charged, "abused his
discretion," and -- worse! -- "The United States Attorney and the Federal
Public Defender each had to write learned briefs and this court had to hear
argument and write an opinion -- all at considerable expense to the
public." Ginsburg, in a unanimous appeals court ruling, ordered Sporkin to
impose a sentence of 70-to-87 months (slightly lower than it otherwise
would have been because of recalculations under the complicated sentencing
guidelines).

But Sporkin had not walked so far out on a limb only to be blown back by
Ginsburg's tirade. Rather than impose the appeals court's longer sentence
on Webb, he decided to take himself off the case in protest. And in a
memorandum that has been circulating in Washington legal circles for
several weeks, he blasted both Ginsburg's "intemperate remarks" as well as
the whole system of drug prosecution. "A humane society does not
incarcerate its sick and feeble," Sporkin wrote. "Clearly a sentencing
system that considers only the amount of drugs involved and ignores
completely the reasons for the actors' conduct would be contrary to this
nation's values."

Surprisingly, this Reagan-appointed pillar of the Washington establishment
is not the only judge in town to protest such insane drug laws. In the D.C.
circuit alone, Senior Judge David Oberdorfer has called 10-to-20-year
mandatory minimum sentences for minor drug dealers cruel and unusual
punishment. A handful of judges in New York and elsewhere have taken
similar stands. Such cases of judicial civil disobedience, like this week's
needle-exchange controversy and California's confrontation with the feds
over medical marijuana, reveal deep and growing fissures in the official
consensus on drug policy.

It's notable that none of the figures involved are wild-eyed libertarians:
They are jurists, prosecutors, White House officials, mayors. When the
history of the war on drugs is written, early 1998 may come to be seen as a
defining moment, rather like the Tet offensive in a different war 30 years
ago, revealing fundamental rifts from which broader resistance and protest
may yet emerge. SALON | March 31, 1998

Bruce Shapiro writes the Law & Order column for the Nation, and is a
regular contributor to Salon.