Today's drug enforcement laws are swamping the judicial system.
In many courts, the right to trial by jury in civil cases has all but disappeared. In far too many federal courts, the right to a trial presided over by a constitutional officer has vanished. People who can't wait 10 or more years to have a civil dispute decided are forced to "rent" a retired judge or pay a lawyer to arbitrate. Even' in systems that have not reached gridlock, drug-congested dockets have diverted judicial time and attention from the thoughtful resolution of disputes to the ritualized procession of charge, plea and computerized sentences to crowed prisons.
For years now, many Federal Judges have taken a stand against mandatory minimum sentences. Over 86% call for outright abolition of mandatory sentencing. Some Senior Federal Judges have refused to hear drug cases because of the long sentences they are bound by law to give defendants. Many Federal Judges are recording their dissent and we are collecting them here.
The entire issue is throughly explained by Professor Zlotnick in his Federal Sentencing Study. Compelling are his revelations that show judicial dissent occurs largely with Republican-appointed judiciary. But, at the same time, their dissenting opinions are of little use to defendants, so calling it 'activist' or 'liberal' is worrisome because federal judges don't act like activists, nor have they been liberal -- for quite some time.
7th Circuit Chief Judge Calls for Loosening of Sentencing Guidelines; from National Law Review (US), 9/14/09
Two Judges Target Cocaine Penalties; from Washington Post (DC), 6/29/09
OpEd: Retired Judge Says It Is Time To End War On Marijuana; from Bellingham Herald (WA), 3/21/09
Judge Quest To Decriminalize Minor Drug Use Gets Support; from Houston Chronicle (TX), 1/15/09
What Might 2009 Have In Store For Punishment Theory And Incarceration Rates? From The Sentencing Law & Policy Blog of Doug Berman, Esq., 1/2/09
Judges, Lawyers Question Fairness Of Mandatory Sentences; from Winona Daily News (MN), 7/27/08
Judges See Failure In Fate Of Drug Cases; from Baltimore Sun (MD), 3/5/08
Judge Argues For Softer Drug Laws; from Central Florida Future (FL Edu), 12/3/07
OpEd: It's A Gray Area: Current Drug Policies Inefficient, by Judge James Gray; from Daily Pilot (CA), 10/1/07
Commentary: Jailing Juvenile Offenders with Adults Only Helps Create Smarter, More Violent Criminals; from BlackAmericaWeb.com (US), 5/25/07
Column: In The Costly War On Drugs, Who's To Say What Is Right? from St. Louis Post-Dispatch (MO), 1/14/07
Judge Calls For Easing Of Drug Penalty; from Houston Chronicle (TX), 11/20/06
Judge: Cocaine Sentencing Disparity 'Unconscionable'; from Associated Press (US)
Report: Why Are Federal Judges So Acquittal Prone? from Law Quarterly, Washington University School of Law (MO)(PDF Format)
Archive: Supreme Court Rules 5-4 That Only Juries Can Enhance Sentences: Sixth Amendment Sentencing Issues [Apprendi, Summerlin] Revisited - June 25, 2004; Blakely v. Washington, No. 02-1632
Judge Criticizes Ex-Officer's 315-Year Sentence; from Baltimore Sun (MD), 6/17/06
Federal Judge Raps Rules On Sentencing; from Charlotte Observer (NC), 5/29/06
Federal Judge Blasts Mandatory Minimum Sentences; from New York Law Journal (NY), 1/20/26
Judge Rails Against Drug Sentencing; from Providence Journal (RI), 11/20/05
Drug Sentences Under Scrutiny; N.C. Supreme Court Chief Justice Burley B. Mitchell Jr., from News & Observer (NC), 11/15/05
'War On Drugs' Not Meant To Be Won; CT Superior Court Judge Howard Scheinblum, from The Norwich Bulletin (CT), 6/4/05
Highlights of dissenting opinions judges have shared publicly:
"Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans' views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, n9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting -- however inarticulately -- that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely." -- Supreme Court Justice John Paul Stevens, dissenting in Morse v. Frederick, No. 06-278, June 25, 2007
Federal Judge Richard Neville, of Chicago; March 1996 told USA Today, "the markup on illegal drugs and their enormous profits to sellers create ten replacements for every offender thrown in prison. No matter how may we put in jail, that isn't going to change."
U.S. Magistrate Peter Nimkoff of Miami resigned from the bench do to the relentless erosion of rights and the governmental abuses which he daily confronted. In a press conference in 1986 he said, "There are two constitutions - one for criminal cases generally and another for drug cases," which, "invites police officers to behave like criminals. And they do." The Miami Herald did not cover this resignation or the press conference.
Federal Judge Richard Posner told USA Today, "It is nonsense that we should be devoting so many law-enforcement resources to marijuana. I am skeptical of a society that is so tolerant of alcohol and cigarettes should come down so hard on marijuana use and send people to prison for life without parole... Prison terms in America have become appallingly long, especially for conduct that, arguable, should not be criminal at all . . . Only decriminalization is a sure route to a lower crime rate . . ."
Federal Judge George Pratt of the 2nd Circuit said of police searches in the Buffalo, N.Y. airport, "It appears that they have sacrificed the Fourth Amendment by detaining 590 innocent people in order to arrest 10 who are not - all in the name of the 'war on drugs.' When, pray tell, will it end? Where are we going?" (To Reason Magazine, February 1994)
Federal Judge Shira Scheindlin defied the federal mandatory sentence by giving a drug offender a 13 month sentence, instead of the mandated 10 or more years.
Judge Robert W. Sweet District Judge in New York City; served as an Assistant US Attorney and as Deputy Mayor of New York City under John Lindsay; a graduate of Yale and of Yale Law School. "Congress should end the criminalization of marijuana, which is now widely acknowledged to be without deleterious effect. That reform alone would take 450,000 arrests out of the system."
US District Judge Vaughn Walker of San Francisco contends that decriminalization is the key to solving our nation's current drug problem.
Federal Judge Jack Weinstein of Brooklyn has refused to take drug cases because he opposes mandatory minimum sentences. He said that he had a, "sense of depression about much of the cruelty I have been party to in connection with the war on drugs."
US District Judge Thomas Wiseman, quoted in The Tennessean, "We've just about lost a generation of young people. We're building new prison beds at the rate of about 1000 a week and we're still overcrowded... We've spent $100 billion on the war on drugs and we're losing it."
If you have a dissenting opinion of a Federal Judge, please mail a copy to: