Two Judges Decline Drug Cases, Protesting Sentencing Rules

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Two Judges Decline Drug Cases, Protesting Sentencing Rules

Newspaper article

By: Joseph B. Treaster

Date: April 17, 1993

Source: New York Times

About the Author: Joseph B. Treaster has been a reporter for the New York Times for more than thirty years, working from many different countries. Treaster is currently posted in New York, reporting on financial news, and has written several books, including a biography of American economist Paul Volcker, former chairman of the Federal Reserve and a book on New York Times coverage of the Middle East hostage crisis. Most recently, Treaster was the New York Times lead reporter in covering Hurricane Katrina.


The Sentencing Reform Act of 1984 mandated the creation of the U.S. Sentencing Commission, which was established in 1985. The stated purpose of the commission was to put forward sentencing policies and practices that would 1) ensure that the goals of just punishment, deterrence, incapacitation, and rehabilitation are being met; 2) eliminate sentencing disparity—the phenomenon of defendants receiving vastly different sentences for similar offences; 3) allow mitigating or aggravating factors to be considered in determining the appropriate penalty. The result of the commission's study was Federal Sentencing Guidelines; a formulaic prescription for judges to use in calculating a fitting sentence that accounted for the type and severity of the offence, in combination with the offender's prior convictions. The intersection of the various factors tells the judge what the range of the sentence should be, within a very narrow window.

At the same time, political concern about the growing drug problem in the United States prompted the passage of the Anti-Drug Abuse Act in 1986. This act, and its 1988 amendments, set a variety of mandatory minimum sentences for drug possession and trafficking. In combination with the existing Federal Sentencing Guidelines, this legislation severely limited judicial discretion in determining sentences for drug offences and contributed to an increase in lengthy prison terms, designed to be a weapon in the 'war on drugs.' Some federal judges, dissatisified with their inability to act on conscience and to account for mitigating factors in sentencing, have revolted against the concept of mandatory minimums and sentencing guidelines by refusing to preside over drug-related cases.


Two of New York City's most prominent Federal judges said yesterday that they would no longer preside over drug cases, going public with a protest that calls attention to what dozens of Federal judges are doing quietly across the country.

The decisions, by Jack B. Weinstein of Brooklyn and Whitman Knapp of Manhattan, were made in protest against national drug policies and Federal sentencing guidelines. They said that the emphasis on arrests and imprisonment, rather than prevention and treatment, had been a failure, and that they were withdrawing from the effort.

Federal court officials estimated that about 50 of the 680 Federal District judges are refusing to take drug cases. The protest is confined to senior judges, a category of judges eligible for retirement who are given wide latitude in choosing their cases.


The two judges, who have not spoken out against drug policies in the past, said that on special request they would be willing to preside over a drug case to help an overloaded colleague. But they said they would insist that the sentencing be done by others.

A handful of Federal judges have called for the legalization of drugs, and a few judges have resigned rather than apply what they regarded as overly harsh sentences.

"The present policy of trying to prohibit drugs through the use of criminal law is a mistake," said Robert W. Sweet, a Federal judge in Manhattan who began advocating legalization of drugs four years ago. "It's a policy that's not working. It's not cutting down drug use. The best way to do this is through education and treatment."

Judge Knapp and Judge Weinstein both said they were not calling for legalization of drugs, nor did they offer any specific solutions to the drug problem. Both said the change in administrations in Washington had not been a factor in their decisions, but Judge Knapp said that "Clinton has not committed himself to the war on drugs in such a way as the Republican Administration had," and he hoped his action might influence the President.

The decisions of Judge Knapp and Judge Weinstein are likely to have little impact on the flow of cases through the Federal courts. But a top Federal administrative judge said that the actions would probably have a great symbolic effect.

"A lot of judges feel the present system breeds injustice," said Federal District Judge William W. Schwarzer, the director of the Federal Judicial Center, the educational and research agency in Washington for the Federal courts.

He said many judges feel that sentencing rules enacted by Congress that provide for little or no judicial discretion "load up the prisons but have not done much else to improve the drug situation."

"People think they can stop the drug traffic by putting people in jail and by having terribly long sentences," said Judge Knapp, who is 82 years old and rose to prominence in the 1970's when he headed the Knapp Commission, which investigated police corruption in New York City.

"But," Judge Knapp said, "of course it doesn't do any good."


Both he and Judge Weinstein, who is 72 years old, said that while the number of people arrested and imprisoned on drug charges has risen sharply over the last decade, drugs remained easily available in New York and other cities.

"The penalties have been increased enormously," said Judge Weinstein, "without having any impact. It's just a futile endeavor, a waste of taxpayers' money.":

Judge Thomas C. Platt, the chief Federal judge in Brooklyn, would not comment on the actions of the two judges. But Judge Thomas P. Griesa, the chief Federal judge in Manhattan, said: "I believe the enforcement of the anti-narcotics laws serves a very important purpose."

"Even though it is far from successful in any ideal sense," he continued, "it is society's way of doing the best it can to combat this deadly plague of a criminal nature. Beyond any statistical or tangible results there is a moral value in having society take a stand against this."

Robert C. Bonner, the administrator of the Drug Enforcement Administration and a former federal district judge and prosecutor, said that "no matter how well intended, unfortunately, no one judge in no one courtroom is in a very good position to judge the overall effectiveness of drug prosecutions."

Mr. Bonner said that the ability to prosecute drug cases in the Federal courts "plays a critical role in the D.E.A.'s global strategy to incapacitate major trafficking organizations."

"While cocaine is far more available than any of us would like to see it be," he said, "it is less readily available in New York and other major urban areas than it was five years ago."

According to the latest Federal estimates, 1.9 million Americans used cocaine in 1991 compared with 5.8 million in 1985. The reasons for the decline are not entirely clear. But many drug experts say a heightened awareness of the harm cocaine can do along with a shift toward healthier living has contributed more to the decline than has law enforcement.

Dr. Herbert D. Kleber, a former senior drug adviser to President George Bush and now an official of the Center on Addiction and Substance Abuse at Columbia University, said that while he favored such alternatives to prison as mandatory treatment programs for nonviolent convicts, he did not feel that judges should refuse to preside over cases.

"They shouldn't be able to pick which laws they feel like upholding." Dr. Kleber said. "Just enforcing the criminal law is inadequate, but it is one important component. We need not just criminal law but increased treatment and prevention programs."

Judge Knapp said he had been considering the effectiveness of drug policy for years but did not decide to speak out until he was asked to address a lunch meeting last month.

He said he had quietly stopped handling drug cases about a year ago, but he had not told anyone outside the courts until a reporter asked him about Judge Weinstein's decision.

Judge Weinstein announced his intentions in a memo to colleagues last Monday and again in a speech Wednesday night at Benjamin N. Cardozo School of Law. His speech and the decision to stop handling drug cases was first reported by the New York Law Journal on Thursday.

Judge Weinstein said he had decided to act after being forced by sentencing guidelines to send a peasant woman from West Africa to prison for 46 months on a smuggling charge and to give a man 30 years in jail for his second drug offense.

"These two cases," he said, "confirm my sense of depression about much of the cruelty I have been party to in connection with the war on drugs."

Vincent L. Broderick, a former New York City Police Commissioner now serving as a Federal district judge in Manhattan, said that in more than a decade of the latest drug war, "We haven't dealt at all with why people go to drugs. Why aren't we spending more money in this area?"


In addition to severely curtailing the discretion exercised by federal judges, the restrictive Federal Sentencing Guidelines and the Anti-Drug Abuse Laws have resulted in more and lengthier custodial sentences for drug offences in the United States. Many judges, like Justices Knapp and Weinstein, lawyers, and criminologists are opposed to the notion of mandatory minimum sentences and statutory rulings, arguing that the guidelines fail to serve the need for rehabilitation and don't leave room for the consideration of mitigating factors in sentencing, resulting in a trend toward more punitive and generalized sentencing. Although the sentencing commission's original directive allowed for the consideration of the defendant's individual situation and potential for rehabilitation in deviating from the guidelines, later amendments determined that personal factors related to the defendant were "not ordinarily relevant" to sentencing. Despite popular protest and evidence that lengthier sentences for drug convictions were contributing to an overall rise in the prison population— but not resulting in lower rates of drug offending—the sentencing guidelines remained in force until a landmark U.S. Supreme Court decision in January 2005.

In 2003, Freddie Booker was convicted by a jury of possession of at least 50 grams of cocaine with intent to distribute. According to the Federal Sentencing Guidelines, this offence carries a mandatory minimum sentence of ten years with the maximum sentence being life imprisonment. During the sentencing hearing, the judge determined by a preponderance of evidence that Booker had also been in possession of more cocaine than the jury had convicted him of trafficking and had obstructed justice by providing false information to the authorities. Taking these findings into consideration and applying the Federal Sentencing Guidelines, the judge ruled that the sentencing range for Booker was increased to a minimum of thirty years to life and gave him the minimum thirty year sentence.

Booker's lawyers appealed the ruling on the grounds that the additional factors taken into account at sentencing were beyond the scope of the jury's conviction and were subject to a much lower burden of proof—a 'preponderance of evidence' instead of 'beyond reasonable doubt.' At appeal, Booker's lawyers argued that the sentencing guidelines' allowance of factors not proven before a jury and not contained in his criminal history violated the defendant's Sixth Amendment right to a trial by jury and that the sentencing guidelines were therefore unconstitutional. While Booker's conviction was upheld by the court of appeals, his sentence was overturned and the government appealed this ruling to the U.S. Supreme Court.

On January 12, 2005, the U.S. Supreme Court ruled in favor of Booker, noting that the Sixth Amendment does indeed apply to the sentencing guidelines and that the statutory maximum sentence must be applied by the judge on the basis of facts admitted by the defendant or found before a jury. Because the facts applied in Booker's sentencing were not found before a jury, he in fact had a right to the lower sentence of a ten year minimum. The court also noted that if the sentencing guidelines were merely advisory, rather than mandatory, the Sixth Amendment would not apply. However, because the sentencing guidelines are mandated by law, they must conform to constitutional standards. On the application of the guidelines themselves, the Supreme Court ruled that the mandatory application of the sentencing guidelines was unconstitutional, and found that the clause that judges be required to apply the guidelines unequivocally should be removed from the legislation, effectively rendering the sentencing guidelines as suggestive rather than binding and restoring the power of judicial discretion in sentencing.

In the wake of the Booker decision, a report by the U.S. Sentencing Commission in March 2006 revealed that the majority of federal judges continue to sentence in accordance with the advisory guidelines. While judges are giving out an increased number of sentences that fall below the guideline minimums (from nine percent to fifteen percent), the average sentence for drug trafficking has actually increased from eighty-three to eighty-five months. The reintroduction of judicial discretion into drug sentencing has not resulted in significantly more lenient penalties, nor has it led to a stark departure from the sentencing guidelines in practice. The value of judicial discretion is most significant when judges are faced with exceptional situations and cases in which justice is not adequately served by a formulaic prescription and more humane and practical responses are necessary. The outcry of federal justices and the constitutional challenge of the Booker case have restored decision-making power to the hands of judges who are in the best position to consider the relevant factors of each case and make sentencing decisions tailored to the situation of individual defendants. The outcome of the Booker decision resulted in amendments to the Federal Sentencing Guidelines in May 2006.



Clarke, Judy. "The Sentencing Guidelines: What a Mess." Federal Probation 55 (1991): 45–49.

Mauer, Marc. "The Causes and Consequences of Prison Growth in the United States." Punishment and Society 3 (2001): 9–20.

Sabet, Kevin A. "Making It Happen: The Case for Compromise in the Federal Cocaine Law Debate." Social Policy & Administration 39 (2005): 181–191.

Web sites

U.S. Sentencing Commission. "Final Report on the Impact of United States V. Booker on Federal Sentencing." March 2006. <> (accessed May 21, 2006).

U.S. Sentencing Commission. "United States v. Booker:" January 12, 2005. <> (accessed May 15, 2006).

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Two Judges Decline Drug Cases, Protesting Sentencing Rules

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