The Anguish of the Drug War Judges
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 1988, 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 Commmission 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."
Steve France is a lawyer in Washington, D.C. and a writer for Salon.com, where this article originally appeared.