Judge Wright joins drug reform ranks

In early November 2000 Judge Scott O. Wright, a Senior Federal Circuit Court Judge for the Western District of Missouri, joined the ranks of drug war critics on the federal bench. Wright stands alongside luminaries like Jack Weinstein, Robert Sweet and John Kane in utilizing his standing on the bench as a bully pulpit to call for drug policy change.

Wright had accepted an invitation to give the keynote speech on November 12th at the Kansas City Jewish Community Relations Bureau/American Jewish Committee's human relations awards banquet. He took that opportunity to hurl thunderbolts at the nation's drug policies, telling a receptive audience that the war on drugs "is destroying our inner city communities," and denouncing mandatory minimum sentencing, asset forfeiture abuses, and the "annihilation" of Fourth Amendment protections against unlawful searches and seizures.

Wright, a Nebraska native, served as a US Marine Corps aviator during World War II before obtaining a law degree from the University of Missouri-Columbia in 1950. His legal career alternated between private practice and stints as a prosecuting attorney. President Carter appointed him to the federal bench in 1979 where he served as chief judge from 1985 to 1990. He assumed senior judge status in 1991.

The Week Online interviewed Judge Wright on November 15th. Here are excerpts from that interview:

WOL: What inspired you to speak out on drug policy?

Judge Wright: I sit on the bench and see that the overwhelming majority of the people I sentence are minorities. In all of these cases, it's a black or a Mexican or a Latino these drug agents 'nail'. I can't believe there aren't any white people carrying drugs. When they 'nail' these people, I have to think they're engaged in racial profiling. It's the same damn thing with the Highway Patrol. In every case where defendants were stopped on the highways, they've been minorities.

This has been grinding around in my head for a long time, so when I was invited to make a speech, I just unloaded. I've talked about this for some time, but who cares what a federal judge says? And my wife is tired of hearing about it; so I thought this was a chance to say publicly these things I've been concerned about for a long time.

WOL: In your speech last Sunday, you went out of your way to criticize mandatory minimum sentences. What's wrong with them?

Judge Wright: Don't get me wrong, it's not that these people may not deserve some time in jail, but these mandatory minimums are just draconian. I hate drugs, and I recognize that drugs are a real problem, but these people are nonviolent criminals.

These sentencing guidelines and mandatory minimums leave all the power in the hands of the US Attorneys. They are the only ones who can file for a downward departure [a sentence below the mandatory minimum], and they do so only when someone is cooperating. That's not all bad because lesser offenders can help 'nail' someone up the ladder. But if someone has no information with which to bargain, the US Attorneys won't file the departure, and the judge is stuck with the mandatory minimums.

It is worst in the cases of these 'drug mules'. They may not have any previous con-victions, and they may not even know what or how much they're carrying. The man-datory minimums hammer them while the guys who are supplying them get off scot-free.

WOL: Have you attempted to sentence defendants to terms you thought were fair and just but beneath the mandatory minimum?

Judge Wright: Oh, yes, I've done that. Then the US Attorneys appeal, and the Court of Appeals reverses me. That's the law, but in a lot of these cases the law is an ass.

WOL: Have you ever succeeded in getting around the mandatory minimums?

Judge Wright: Rarely. There was one case where a guy was operating a crack house, a big operation. When the police went in with a warrant, there were two guys outside selling rocks. They were addicts, just selling enough to keep themselves supplied. The crack house owner cooperated and got a downward departure from the US Attorney. He got 18 months. The two guys outside, however, were charged with conspiracy and made liable for all the drugs in the house, with mandatory minimum 10-year sentences at stake. I said, "I'm not going to do that." I only found them liable for the drugs they had on them.

WOL: And what happened on appeal?

Judge Wright: The US Attorneys did not appeal. The case was so inequitable that even they didn't want to fight me on it.

WOL: What would you recommend in terms of reforming drug policy?

Judge Wright: Look, we've been at this for years, and we're not getting anywhere. We're just putting a bunch of people in jail, while drugs are just as plentiful as ever. Again, let me say I think drugs are bad, and it is sad to see these people hooked on drugs. But we can do better.

First, spend more money on treatment. I think we could get some of these people off drugs. If we would spend for treatment what we now spend to put people in jail, there could be some successes.

Second, we need to emphasize drug education. We need to start drug education at an early age. We need to work with children and parents so they realize the dangers. But it is the parents who are most important. Many don't seem to realize their kids are using, and that's a damned sad commentary on these parents.

WOL: Some European countries have adopted decriminalization or legalization models where, for instance, heroin addicts can have access to a legitimate supply. Would you favor something like that?

Judge Wright: I'm not saying that. When you're talking about legalization, maybe you're going a little too far. The problem is, nobody can talk about this. In the presidential campaign, neither candidate mentioned drugs at all. They're afraid to mention it. Politicians are afraid to say the policy is wrong; they're afraid their opponents will label them "soft on drugs."

There is something of a shift, though. Look at California where they just passed that sentencing reform initiative. It will put people into treatment instead of prison. That's a good sign, a very good sign.

WOL: Very few judges, federal or otherwise, have spoken out on this issue. Do you have any sense that your position has support among other judges?

Judge Wright: A lot of federal judges are really upset about the mandatory minimums and sentencing guidelines, but they are reluctant to speak out. They ought to speak out. I talk to my fellow judges here; we have conversations over lunch, for example, and these things come up. There isn't a judge on this court who doesn't think mandatory minimums create very serious problems.

WOL: In your speech you also bemoaned the erosion of the Fourth Amendment as a result of the war on drugs and mentioned the Supreme Court's "cascading exceptions" to Fourth Amendment protections, among them "allowing police helicopters to peer into windows, highway troopers able to search passengers in cars whose drivers seem suspicious, and, most notoriously, permitting state agents to smash down doors without warning or evidence of crime."

Judge Wright: Absolutely. The Fourth Amendment is in trouble. You have highway patrolmen stopping people, and they always use the excuse that the guy had a driving infraction; he crossed the centerline or something, and you know that's a damned fraud.

WOL: Are you suggesting that these officers are lying to the court?
Judge Wright: Yeah, I'm suggesting that they're not completely telling the truth.

WOL: You also addressed asset forfeiture in your speech. What are your reservations about asset forfeiture?

Judge Wright: Judges here have been really upset about asset forfeiture abuses for some time, but there was no movement until the Kansas City Star did their series on forfeiture (http://www.kcstar.com/projects/drugforfeit/). That series made it clear that what police are doing may not be illegal, but it sure is unethical. Here in Missouri, if local or state police seize money, it is supposed to go to the school system. The police would get around it by turning the seizures over to the federal government which, in turn, would 'kick' most of it back to the police here. The police got the money, not the schools.

Now, however, if the police want to give the money to the feds, they have to get a state court order, and state judges aren't going to go for that. This whole thing makes the police and Missouri Highway Patrol look bad because the money was meant for schools, and they were keeping it for themselves.

The big problem with asset forfeiture and with the war on drugs in general is that there's so much money involved it makes law enforcement dishonest and unethical.

WOL: What sort of reaction have you had to your speech?

Judge Wright: Very favorable. The only chilly reception was from the US Attorney. You know, when I first came on the bench here, there were 14 Assistant US Attorneys. Now there are 48 of them, and they're prosecuting drug cases. At least 80% of the cases I hear are drug cases. I'm so sick and tired of trying drug cases.

WOL: Are you willing to speak out again on this issue?

Judge Wright: The general public needs to be informed about this. I will speak anywhere, anytime. Anything I can do to help.

If we could read the politicians' minds, we'd all soon know that what they're doing is not productive, but they're afraid their opponents will savage them as "soft on crime." The Clinton administration was afraid to do anything because the Republicans owned this issue. Maybe the Republicans will have to be the one to undo this mess.

Source: DRCNet, November 17, 2000, from DRCnet's Week Online Nov. 17, 2000