What is your opinion of federal drug penalties in general? |
Well, since 1989 I've taken the position that I don't think criminal penalties
are the way to deal with the drug problem. It is a policy that has not
worked. I don't think it's going to work in the future. It creates a
great deal of distress and further, it really is dishonest because I
think the American people perhaps are of the view that these punitive measures
are effective, where in fact, they are not.
Are they draconian?
The idea of using the criminal law to deal with something which is
basically a health problem, basically an education problem, I think that that's
a bad mistake in public policy. But then when you heighten that with the
draconian penalties, which we've had since 1984 and seem to be increasing,
that just makes the situation worse. In fact, it was in 1988 that I had a
mandatory minimum sentence that I had to impose on a young Puerto Rican fellow,
a first time offender. He had no deep involvement, yet ... the situation was
such that it had to be a mandatory minimum of 10 years, and it was that
sentence which made me think to myself, is this policy working? Is this right?
And so I started doing some research and did some thinking about it on my own
and one thing and another, and came to the conclusion that the criminal
prohibition was wrong. But it was the drama of that 10-year sentence on that
17-year-old that really forced me to focus on the problem and drove me
to the conclusion that I just don't think the policy works.
Is this due process?
It's a travesty. Fundamentally, I think the idea of using criminal law for this
purpose is wrong. But, past that for the moment, if you are going to make this
kind of conduct criminal, then at least the punishment ought to be fair. And
the idea of an arbitrary, absolutely arbitrary, no escape mandatory sentence
[that] fits all [cases]... I myself, feel that that is not due process.
Others disagree, quite obviously, and the ones that count disagree, but I
declared the sentencing guidelines unconstitutional because I felt that it was
a violation of due process and I felt also it was an improper violation of
separation of powers. The legislature was saying to us judges that we had to do
something which had been traditionally a judicial function, probably one of the
most important functions a judge has, [to] assess the defendant, assess the
crime, assess the society, and try to reach a just result. I think that's the
way the system ought to work, but because of the mandatory minimums, it
doesn't. And, of course, the fact is that the result is there are a lot of people
in jail for a lot longer and a lot of the low level people are in jail as a
consequence. And when you start figuring out the economics of this, it's
staggering. I mean, the $25,000 it costs to build the cell, the $30,000 it
costs every year that they're in, and the bottom line of all of it, if you're
talking about social policy, is no benefit. Who can point to the benefit? Who
can point to the value of these mandatory minimums? ...
Isn't there an enormous incentive for drug offenders to lie when testifying
Through these mandatory minimums [Congress has shifted] a certain amount of the
decision making from the courts to the prosecutors. The minute that it shifted
to the prosecutors, then the chief malefactor who does have some information to
give up, that person can make a deal with the government and escape the
mandatory minimum, while the messenger or the conveyor of information or the
person that's just carrying the package--of course they have to know what the
package is, but relatively minor role--those are the people that are getting
the mandatory minimums because they have no way to cooperate. They, by and
large, don't know anything.
So do they tend to lie, then, to make things up since they don't know
Let me just back up. I think really before we got into the drug war ...
criminal cases by and large were proven by surveillance, by observation, by
objective evidence, forensic evidence, that sort of thing. It was only
until we got into the drug war and into this situation that we had this
acceleration of the use of informants. Of course, the classic case is somebody
who's in a drug conspiracy, up against a mandatory minimum, who then turns
against everybody else. It is certainly an accepted prosecutorial device. There
is nothing illegal about it. However, it's worrisome for the very reason that
you've indicated. It's worrisome because you have somebody who has been
engaging in criminal conduct, and is there a validity to their testimony? And
of course, that's something that juries have to evaluate every time they have a
criminal case and they have an informant, somebody from the inside, testifying.
I honestly think that's a real problem which prosecutors face and they
face it, most of them, honestly. They have to evaluate whether the person who
has turned, the informant, as a result of these draconian statutes, whether
that person is going to be believable.
How do prosecutors know who lies when?
They almost invariably have additional evidence besides the informer. ... How
do they know? Well I guess we haven't figured out a way yet to get inside
people's minds authoritatively, and so it's a judgment call, and there are
times when juries do not believe the informers. ...
Does the system as it stands, allowing the use of informers, invite
corruption on the part of law enforcement?
Using the power of these heavy sentences to break somebody and compel them,
faced with a sentence, to disgorge all the information that they know, there's
no question but that that is an effective device from a law enforcement point
of view. I wonder if anybody has looked at the number of drug conspiracy cases
and I wonder if there is one that has not gone forward on the basis of
testimony from an insider who has been faced with one of these sentences. Is
that unhealthy to the society? I think in a general way using criminals to make
your case--everybody who thinks about it [has] a very uncomfortable
reaction. It doesn't seem quite right. The prosecutor, of course, will say,
"Well, that's the only way we can get the information. They're the people that
have the information." The tendency to use informers has grown
particularly in the drug cases, and it can be subject to abuse. ...
It must be frustrating for a judge to have to impose sentences he thinks are
Judge Irving out in California quit. He resigned, saying that he thought it was
so unjust. Every time I have one that I think is particularly egregious, so far
I have done the mandatory sentence and explained why I had to do it, and then
written to the Senate and the House Judiciary Committees giving the facts and
the background and so on, in hopes that perhaps they will see the wisdom of
changing, abandoning the mandatory minimums, but yes it's very hard, it's very
hard. Does it come to a point when the law is so unjust that you cannot
administer it? That's a very deep and heavy problem for a judge. Look at what
happened in Germany. Some of those judges must have known [there] were laws
against humanity. ...
But it is the law and one takes an oath to support and defend the Constitution
and the laws so, as I say, I declared the sentencing guidelines, which are part
of this whole structure unconstitutional, but I was reversed. ... When I
testified on the subject of the sentencing guidelines, one of the members of
the House Judiciary Committee, Representative John Conyers, said "Well, you
know what will happen, this will run its course, and at the end of the time
when this whole structure has disappeared, then we'll be back to where we were
before and the only difficulty will be that there are an awful lot of people
who will be in jail who wouldn't be there otherwise, and many, if not most of
them, will be black."
Who can do anything about this?
Well, realistically there are only two people that can really do anything about
it, one are the people who vote, and the other is Congress. ...
What is your function as a judge in a federal drug case?
Well, it's no different really in that case than it is in any case. That is, to
be sure that the law is applied fairly, that the evidence is presented fairly.
... I think it's when you get to sentencing that you find it's extremely hard
for judges when they have to impose these arbitrary sentences. The
surveys indicate that something like 80%-90% of the judges are
opposed to mandatory minimums because they have seen them at work. And they
know that injustice results. Now that's a very troublesome thing for a judge.
What about all the guilty pleas, where defendants plead guilty and receive a
lower sentences in exchange for testifying against others?
You're getting back to the same question as to whether or not there is an
inherent risk of dishonesty on the part of the person that takes that plea.
Sure. There's no question that that's there. I am sure as I am sitting here
that that has happened. It hasn't happened to my knowledge in a case that I
have had, but I am sure that it has happened and, of course, it's like everything
else, that's the prosecutor's job [and the] jurors' job. ... The prosecutor is
the one that has to make the decision in the first instance as to whether
they're going to use the criminal to testify. And then it's got to be the jury
that decides whether or not the testimony is credible. The judge really doesn't
have very much play in terms of that determination. ...
The only place where the judge gets into it is when he accepts the guilty plea.
But then the criminal is pleading to the charge which the prosecutor and he
have worked out, and so there really isn't any question of credibility at that
juncture. It's his testimony as to the other people and, of course, that's
something that's part of the jury process, part of the trial process. If you're
asking me is there any way to ensure that the testimony of the informant is
honest, I think the only way is not to take informant's testimony. But, that's
not something that prosecutors would accept in today's world.