Newsreal: Hell no, we won't throw away the key

Serious civil disobedience against the nation's drug sentencing laws are being staged, not by pot-smoking hippies and wild-eyed libertarians, but by prosecutors and senior judges, one of them a Reagan appointee.

By Bruce Shapiro

Published March 31, 1998 8:00PM (EST)

Quick: What furious debate over the parameters of morality, legality and personal behavior has the American political and judicial system been at vehement war with itself over? No, not the ever-morphing Clinton/Jones/Starr/Lewinsky/Willey scandal, but an issue likely to affect vastly more people. Drugs. Drug use, drug policy, drug enforcement. While the press has been consumed with Tailgate, slowly simmering discord over the war on illegal drugs has suddenly reached a rolling boil.

Some skirmishes have filtered through to public consciousness. Last Monday it was Drug Czar vs. AIDS Czar: White House drug policy advisor Barry McCaffrey lambasted White House director of HIV policy Sandra Thurman's advocacy of federally funded sterile needle-exchange programs for addicts. Needle-exchange efforts, McCaffrey complained in a letter leaked to Congress, undermine "an unambiguous 'no use' message."

The following day, it was California vs. the feds. The Justice Department went to court seeking an injunction shutting down six Northern California medical marijuana clubs, operating under the protective umbrella of Proposition 215 passed by state voters last November. Last week, four California mayors wrote to the White House demanding that the Justice Department "respect local expertise" on medical marijuana and abandon the crackdown. If Attorney General Janet Reno's shutdown of marijuana clubs moves forward, San Francisco District Attorney Terence Hallinan is threatening to employ city workers to distribute the drug to those who medically require it -- perhaps the most dramatic act of local law-enforcement defiance of the Justice Department since the days of racial segregation.

But one of the most incendiary and startling confrontations has been conducted behind the scenes, in the normally staid chambers of the Washington, D.C., federal courts. The cast of characters: a crack addict and petty street-level dealer named Alvin Webb; U.S. District Judge Stanley Sporkin, named to the bench by Ronald Reagan after serving as the CIA's top lawyer; and Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, best known as the jurist whose Supreme Court nomination in 1987 went down the tubes when Ginsburg admitted smoking pot in the 1970s.

Alvin Webb smoked and sold crack on the streets of the nation's capital for three years. He was a junkie, never a high-powered dealer. "The suppliers would just give me the stuff to give to the people ... I never received any money," he testified. "All I received was just drugs for that." An undercover DEA agent bought crack from Webb on two occasions in February 1994: five grams on the first occasion, then six -- small amounts that would have meant little jail time. Then, according to court records, the DEA agent deliberately decided to ratchet up his third purchase from Webb -- 55 grams -- because under federal sentencing guidelines that meant a mandatory prison sentence of nine years or more.

Webb obtained the court's permission to enroll in a drug rehab program, which might have allowed him to qualify for a lower sentence, but he failed at rehab after a month, ending up back on the streets smoking crack. He was caught 18 months later and was finally brought before Judge Sporkin for sentencing last year.

Thus far, a familiar story of a crack addict in the criminal justice system. So imagine Webb's surprise -- and the federal prosecutor's -- when Sporkin the Reaganite took one look at the case and decided, then and there, that he simply could not reconcile the harsh prison sentence required by federal drug laws with the shattered individual standing before his bench. "If you were in a different economic bracket in this country, you'd probably be out at the Betty Ford Clinic," Sporkin said to Webb, according to court records. He blasted prosecutors who wanted Webb's sentence extended even further to punish him for his 18 months on the street.

"It's because he doesn't control his own body. That's the problem. He doesn't control himself. He's out of control. He didn't do it to defy anybody. He hasn't done it in a defiant act. He did it because it's impossible for him."

It wasn't just Webb's pitiable state that roused Sporkin's
conscience. It was the DEA's routinely Kafkaesque practice of "sentencing
entrapment" -- in this case, the DEA agent's deliberate instigation of a
larger drug buy in order to trigger a heavier sentence.

All this led Sporkin to commit a rare judicial version of
civil disobedience (much as Hallinan now threatens in San Francisco).
He declined to hand Webb the huge sentence required by law, which he
describes as "grossly disproportional to the crime." Instead of a decade
behind bars, Sporkin sentenced Webb to 41 months, worrying that "even 41
months is much
too long for you." What's more, Sporkin virtually dared the outraged U.S.
attorney's office to challenge his ruling: "I realize that you people hold
all the weapons in this war on drugs, and I'll give you an easy one to get
me reversed," he declared.

And appeal the Justice Department did: to a three-judge appeals
court panel headed by Judge Douglas Ginsburg, the former
pot smoker. And it was Ginsburg who four weeks ago wrote a blistering
take-down of Sporkin, thundering that the latter's attack of judicial
conscience "wreaked havoc with the administration of justice." Sporkin,
Ginsburg charged, "abused his discretion," and -- worse! -- "The United
States Attorney and the Federal Public Defender each had to write learned
briefs and this court had to hear argument and write an opinion -- all at
considerable expense to the public." Ginsburg, in a unanimous appeals
court ruling, ordered Sporkin to impose a sentence of 70-to-87 months
(slightly lower than it otherwise would have been because of recalculations
under the complicated sentencing guidelines).

But Sporkin had not walked so far out on a
limb only to be blown back by Ginsburg's tirade. Rather than impose the
appeals court's longer sentence on Webb, he decided to take himself
off the case in protest. And in a memorandum that has been circulating in
Washington legal circles for several weeks, he blasted both Ginsburg's
"intemperate remarks" as well as the whole system of drug prosecution. "A
humane society does not incarcerate its sick and feeble," Sporkin
wrote. "Clearly a sentencing system that considers only the amount of drugs
involved and ignores completely the reasons for the actors' conduct would
be contrary to this nation's values."

Surprisingly, this Reagan-appointed pillar of
the Washington establishment is not the only judge in town to
protest such insane drug laws. In
the D.C. circuit alone, Senior Judge David Oberdorfer has called 10-to-20-year mandatory minimum sentences for minor drug dealers cruel and unusual
punishment. A handful of judges in New York and elsewhere have taken
similar stands. Such cases of judicial civil disobedience, like this week's
needle-exchange controversy and California's confrontation with the feds
over medical marijuana, reveal deep and growing fissures in the official
consensus on drug policy.

It's notable that none of the figures involved
are wild-eyed libertarians: They are jurists, prosecutors, White House
officials, mayors. When the history of the war on drugs is written, early
1998 may come to be seen as a defining moment, rather like the Tet
offensive in a different war 30 years ago, revealing fundamental rifts from
which broader resistance and protest may yet emerge.

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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Aids Drugs Ronald Reagan