DISORDER IN THE COURT

United States District Court Judge John L. Kane is informally holding court
behind his desk in downtown Denver's federal courthouse.

The 64-year-old jurist puts on his reading glasses, arches his bushy gray
eyebrows and begins leafing through a pile of articles he keeps in a
folder. He pulls one out and solemnly begins reading what is essentially an
indictment in the most serious case he's ever considered in his 23-year
career on the bench.

The plaintiff? The people of the United States of America.

The defendants? Politicians who have passed the nation's harsh drug laws,
which bristle with mandatory sentences for possession of even small amounts
of illegal substances.

The charges? Wholesale hypocrisy and cowardice.

Kane is only too aware that of the estimated 300,000 people now in prison
on drug charges, most are poor, and many are black or Hispanic. They have
no access to the one nearly foolproof way to avoid doing time on drug
charges, which, according to Kane, is to be related to a prominent
politician. To prove his point, the judge pointedly recites a list of
Washington insiders who have eluded the ironclad machinery of drug laws.
His rich baritone rises with indignation as the examples roll on:

A California congressman's son, arrested after flying in 400 pounds of
marijuana, tests positive for cocaine three different times while on bail.
Instead of being handed a fifteen-year sentence, the well-connected young
man gets only a short two and a half years in prison.

Then there's Arizona senator John McCain's wife, Cindy McCain, who admits
to stealing Percocet and Vicodin from a charity. Even though illegal use of
the pills -- classified by the government as Schedule 2 drugs, which puts
them in the same category as opium -- carries a penalty of one year in
prison, McCain is allowed to enter a treatment program instead.

Finally, Kane notes that a New Jersey congressman's daughter who pleaded
guilty to two counts of cocaine possession is put on probation rather than
having to serve the five to ten years in prison for each count. Following
this disposition, the congressman tells his constituents: "I'm very proud
of her efforts to rehabilitate and her acknowledgement of the seriousness
of her problem."

Kane scoffs at the reference to "rehabilitation," because he knows there
are thousands of people serving long terms in prison who were never given
that chance.

"This is the kind of crap, the hypocrisy, of the whole thing," says Kane.
"You expect common people to live in fear, but the children of the
politicians are the first ones to get off."

It's highly unusual for a federal judge to publicly denounce the laws of
the United States, but Kane has taken on a high profile in criticizing the
government's drug policies. For the past three years, Kane has been giving
speeches and writing articles attacking the country's war on drugs, which
he sees as an outrageous abuse of power that has wasted billions of dollars
and destroyed thousands of people's lives.

"I think our national policy is nuts and has been for years," says Kane.

As a senior judge, Kane can choose the trials he wants to be involved in.
As a matter of principle, he refuses to take drug cases. Before going
public with his criticism of the system, he consulted with a federal
judiciary committee on ethics and Stephanie Seymour, the chief judge of the
federal Tenth Circuit, to make sure they had no objections. That left him
free to speak out on the laws that have brought a deluge of low-level
dealers and addicts into the court system. Kane has seen hundreds of young
people receive long sentences, with no opportunity to turn their lives around.

"From the '80s onward, we abandoned in the law the notion that the primary
objective of the criminal justice system was rehabilitation," says Kane.
"We take males off the streets between the ages of eighteen and forty until
their testosterone levels go down and they don't commit the same kinds of
crimes. That's warehousing. We take these seventeen- or eighteen-year old
kids, mostly minorities, and they have to join a gang for protection [in
prison]. All they have to do all day is lift weights. They go in at 150
pounds and come out at 250, and they're extraordinarily angry. They're
antisocial and dangerous. Their spirits are crushed."

But it's not just the people receiving the severe, mandatory sentences who
feel crushed by the war on drugs. Even the judges handing down these
penalties feel dispirited, because they aren't allowed to make judgments
based on individual circumstances. Kane says many of his colleagues on the
federal bench have told him they find the drug laws insulting.

"It turns sentencing into a bureaucratic function," says the judge. "It
makes everybody march to the same drumbeat. There's something totalitarian
about it."

Abuse of authority, racism and totalitarian governments aren't abstractions
to Kane. He faced all of these evils in his formative years, and that
experience led him to revere the Constitution and the rule of law. It's
those same values that compel him to criticize the very government that
signs his paycheck.

John Kane has spent most of his life in Colorado, but he can't claim to be
a native. "I was born in New Mexico," he says with a boyish grin, "but I
was conceived in Colorado."

His birth year, 1937, was the height of the Great Depression, and Kane's
father -- John Lawrence Kane Sr. -- had gotten a job as a pharmacist in the
tiny town of Tucumcari, New Mexico. Kane's parents had been living in
Denver prior to moving to New Mexico, and they returned to Denver when he
was just two years old.

The Irish Catholic family settled in the neighborhood around 16th and
Steele streets, near City Park. Most of the families in the area were
either Irish or Jewish. A world war soon erupted and turned the young Kane
family upside down when John Sr. was called to service as a Navy medical
officer on a tanker.

"He was involved in several major Pacific battles, Iwo Jima and Okinawa.
Essentially, he was the ship's doctor," Kane says. The elder Kane saw the
carnage of war firsthand as he treated sailors injured in battle.

Also disturbing were the stories the future judge heard of the mass murder
of Jews in Europe.

"Lots of friends of mine had relatives who were lost in the Holocaust,"
says Kane. "When you thought of government, you thought of the German
government, which was evil."

Like others in his generation, his beliefs were forged by World War II.

"I think the war had a powerful effect on all of us," he says. "We'd go to
the movies and see war propaganda films. There was rationing. My dad wasn't
[home]."

Kane attended a Catholic elementary school, Byers Junior High and South
High School. He recalls Denver as a city in which you could tell someone's
ethnic background simply by finding out their address.

"The Italians lived in one area, the Germans lived in another. You had a
Polish-speaking Catholic church in Globeville. There were lots of Poles and
other Slavic people who lived there. They came out to Denver from Chicago
to work in the packinghouses."

Most of the ethnic communities were grouped around churches that catered to
immigrants. Many of the churches in northwest Denver, such as Mount Carmel,
had largely Italian congregations. A Dutch community centered on South
Pearl Street had its own distinct houses of worship as well. "They actually
wore wooden shoes for their festival," says Kane.

Kane had been the boy's defense attorney, and he kept in touch with him
while he was incarcerated. Bresnahan amazed everyone when he completed
correspondence courses from the University of Southern Colorado and
graduated at the top of his class with a 4.0 grade average. He dreamed of
becoming a doctor and going to medical school.

"I'd been in office one year, and John Kane called me and asked me to
commute his sentence," recalls Lamm. "He begged me to allow him to present
his case. This young man had really turned his life around, and I commuted
his sentence in 1975. He went on to become a very caring and compassionate
doctor."

(Bresnahan sparked new headlines in 1999 when he applied to join the
medical staff at St. Anthony's Hospital. After the staff objected to
working with a convicted murderer, his application was turned down.)
Knowing his willingness to champion unpopular causes, Kane's friends say
they weren't surprised when he started publicly criticizing the War on Drugs.

"Anybody who's been around the drug laws knows the silliness of it," says
Canges. "In private, the police and judges involved in this will tell you
it's foolish, but they won't say anything publicly. It's like the emperor
has no clothes, and there he is, stark naked. We're blessed there are
people with balls and brains who will speak out on this."

The War on Drugs hit the federal courts like a hurricane in the mid-1980s.
Kane was horrified when Congress imposed mandatory minimum sentences in
1986, since he thought they were unconstitutional. However, the laws were
upheld by the U.S. Supreme Court, and the mandatory sentences quickly
changed the role of judges, prosecutors and defense counsel.

After Congress passed these harsh new laws with severe penalties, the
federal government stepped up its enforcement and prosecution efforts. It
poured billions of dollars into agencies like the Drug Enforcement
Administration and set up hundreds of special task forces all over the
country that brought together officials from a variety of government
agencies to target drug dealers. Before then, most drug enforcement was
done at the state level, but suddenly the federal government was filing
charges under federal law.

The effect on the courts was overwhelming, says Kane. "Up until that time,
we hadn't had that many drug cases. The biggest criminal cases we had
focused on were bank robbery and some white-collar crime. There were
anti-trust and securities-fraud cases -- those were the kind of things we
were doing."

Lest anyone think he is soft on crime, Kane likes to tell the story of how
he sentenced one particularly vicious bank robber and kidnapper to 325
years in prison. The last criminal case he heard was in 1988, involving a
family that was smuggling drugs into the state prison system and bribing
some of the guards. The case didn't fall under the mandatory-sentencing
law, so Kane was able to give each family member varying sentences
depending on their level of involvement and his judgment about their
potential for rehabilitation.

"If I was going to sentence somebody, I wanted to look at them face to face
and tell them why I was doing what I was doing," says Kane. "I couldn't see
how you could look at a chart and sentence somebody without regard to their
individual circumstances."

The federal drug laws give prosecutors key advantages, Kane asserts. With
the threat of long sentences hanging over their clients, defense attorneys
are more likely to accept plea bargains. Such back-room deals are often
made before charges are even filed. Prosecutors are also able to demand
that dealers turn in others in the drug business in return for lesser charges.

"It has shifted the law-enforcement function from one of investigation to
one that's based on informants," says Kane. "People get more favorable
sentences if they cooperate, and only the government can say they've
cooperated."

The people who get rewarded are the snitches, and Kane says they're often
the people who are least likely to be rehabilitated.

"When I was sentencing people and an informant would come in, the first
thought that would occur to me was: 'What sort of basic qualities of
character do I have to deal with that would help rehabilitate this person.'
Obviously, loyalty is out, concern for others is out. The chances of doing
rehab with someone like that are seriously diminished."

The mandatory minimums have had other, unintended consequences. Because
big-time dealers have more information to give prosecutors, they're often
more likely to strike a deal than small-time dealers. Some studies have
found that more than half of the people in federal prison on drug charges
are classified as low-level dealers or "mules," people who transported
drugs for others. Many drug offenders also wind up serving longer prison
terms than people convicted of violent acts.

In 1983, one of every ten federal inmates was in prison for a drug offense.
Today it is one out of two.

And even though it's widely believed that the majority of drugs in the
United States are consumed by white people, most of the inmates
incarcerated for drugs are black or Hispanic. An estimated one out of three
African-American men will spend some time in jail, often on drug charges.
Kane believes this discrepancy is slowly destroying support for the law.

"We're creating a totally different social norm," he says. "We've made
going to prison a rite of passage. For these people, the rite of passage is
to belong to a gang, go to prison and have as many children as you can. For
every guy they send to prison, they have two more guys who are happy to
take over. That's a significant social shift."

When lawbreaking becomes socially acceptable, the legal system breaks down.
"It makes the law irrelevant," says Kane. "They're making laws nobody pays
attention to."

With issues of race and class so central to the war on drugs, it would be
easy to view it as a civil-rights issue. Kane doesn't disguise his
disappointment with much of the black community's indifference.

"There are too many people in the black community who've gone on to
mortgages and car payments who don't give a damn," he says. "There's not
enough of a sense of outrage. If the arrest rate in the suburbs was the
same as in the inner city, the War on Drugs would be over with today."

Kane thinks the federal government should get out of the enforcement
business and go back to letting the states determine drug penalties.
"There's not one simple answer for every place in the U.S.," he says. "Each
state can become a laboratory of democracy."

However, Kane would be willing to go further than many of the other people
who are working to reform American drug laws. He favors outright
legalization of most drugs.

"We need to stop this nonsense of the black market and fueling organized
crime," he says. "There's no great incentive for kids to sell drugs if
there's no money in it. There's no incentive to bring drugs into the
country if you can get them legitimately."

Kane would have drugs available to those who want them in a place where
treatment for addiction was also provided.

"Does that give the wrong message to children." he asks. "The message
they're getting now is that their parents can smoke and drink, but they
can't smoke marijuana or use cocaine. Wouldn't the better message be 'We
don't want you to do it, but if you do, we're here to help you'."

There are a dozen or so other judges around the country who have joined
Kane in denouncing the war on drugs. He says many of his colleagues tell
him -- privately -- that they agree with him. "Usually the response is 'Of
course you're right, but I can't say anything about it.' A couple have said
I'm fomenting disrespect for the law. Most say 'I can't give the appearance
of being biased.'"

Kane's outspokenness is unusual for a judge at any level, but his position
on the federal court has put him in the limelight. Recently he traveled to
Berkeley to speak at the University of California law school, and he has
given speeches denouncing the nation's drug policies at the Western
Governors' Association meeting and at Stanford University. He also serves
on the board of the Drug Policy Foundation, a group that has spearheaded
many of the initiative campaigns to reform drug laws around the country.

In 1998, Kane added his name to a two-page ad that ran in the New York
Times under this banner: "We believe the global war on drugs is now causing
more harm than drug abuse itself." The ad, which appealed to United Nations
Secretary General Kofi Annan for a major shift in drug fighting worldwide,
was also signed by veteran newsman Walter Cronkite, former senators
Claiborne Pell and Alan Cranston, former secretary of state George Shultz,
conservative economist Milton Friedman and former New York police
commissioner Patrick Murphy.

Governor Gary Johnson of New Mexico -- also a critic of the nation's drug
laws -- last year appointed Kane to a state commission that recommended
changes in New Mexico's drug policies. The group advocated expansion of
treatment programs all over the state, as well as changing state law so
that first- and second-time drug-possession offenses would become
misdemeanors requiring automatic probation and substance-abuse treatment.

Being silent simply isn't an option, says the judge. Just as his
involvement in the civil-rights movement shaped his worldview, Kane's
memories of the McCarthy era have convinced him that he must speak out.

His generation was often referred to as the "silent generation." Kane
remembers a fear of non-conformity that arose following the Red Scare
hysteria of the early 1950s, when anyone who had been involved in left-wing
activism was suddenly suspected of being a Soviet mole.

"There was a reluctance to engage in any kind of activities which might
bring attention," he says. "You'd go to school and there would be a teacher
there, and the next day he wouldn't be there, and they wouldn't tell you
why -- there would be no explanation. A lot of the people who were
blacklisted and brought before the House Un-American Activities Committee
were the age of our parents. We saw a lot of people being brought before
those committees."

For Kane, the mandatory minimum sentences judges are now required to impose
in drug cases smack of McCarthyism. Instead of the Red Menace, the new fear
is of being seen as "soft on crime." His response is to just say no to such
pressure.

"When you eliminate that sense of personal responsibility, it
bureaucratizes the process," he says. "For a judge who grew up in the
silent generation, the need to conform to some kind of grid is
psychologically repugnant."