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Back to list of Dissenting Judges

Nancy Gertner, U.S. District Court, Boston

Remarks at VCL Forum, "Is the Drug War Forever?"

Boston, Massachusetts, January 29, 1998

I've been a criminal defense lawyer for 23 years. That spanned the period when we were able to argue there was such a thing known as simple possession of marijuana, that addiction excused someone from crime, that if someone was an addict they didn't have the criminal responsibility necessary to be prosecuted; and it spanned the period from then to now when mandatory minimums and unbelievable sentences abound for relatively small quantities of marijuana, cocaine, and heroin. So I saw that period of time change in a relatively small period of time.

In addition, I'm a judge; and I now have the not so pleasant task of sentencing people to these terms, doing everything I can to find some humanity underneath the categories, to find some human beings underneath the stereotypes. So I can speak about that process and that experience.

And I can also speak, you may not know this, as a victim of the drug war. I have been subpoenaed, sued, and spied upon. The three S's, which I'll get to in a moment, were the direct by-products of war that began to really turn on itself.

Let me tell you what I'm not going to say before I start. This is the disclaimer here. I don't think anybody on the panel is saying that drugs are good. The society is falling into a terrible trap, and the terrible trap is believing that not criminalizing something is approving it.

Not criminalizing drugs doesn't mean we approve of it, anymore than not criminalizing tobacco means that we approve of cigarette smoking or not criminalizing alcohol means we approve of it. Just because something isn't criminal doesn't mean it isn't right. And yet that's the way this debate has been cast: If you are against criminalization, you are encouraging use.

So I'm not saying drugs are a good thing. I'm not saying that while I'm a judge I'm going to ignore the law as it is. I can't say that. I took an oath and I have to fulfill that oath. I can't be talking about my official function in this talk. I have to look at what Congress intended, however much I disagree with it. I'm not saying I have a proposal because I don't.

The purpose of this forum is to open the debate so that we can begin to consider the alternatives. What I am saying I will say tonight, and I will say over and over again as loudly as I can. And hopefully without rhetoric.

I want to say at the outset that I'm joined with a whole litany of judges which I didn't realize before I started this. Really, senior judges across the country, not so senior judges, active judges, state, federal all across the political spectrum. They are not just Clinton judges. They are not Bush judges. They are Reagan judges. All across the political spectrum, as I said, have called out and talked out against this war on drugs from a perspective of people from the front line. So I'm not alone. Why are we here? What is it that we see?

Well, we see--and you really saw it the other night on the President's State of the Union Address--on one hand there's a discussion to keep social programs all within the constraints of balancing the budget. Resources are finite. And then there's the discussion of interdiction of drugs at our borders. There are no discussions of finite resources when we talk about drugs. There is no notion that there's a cap on it.

Every dollar we spend on this, we take away from other kinds of programs. We have spent, and this is part of my research here, five hundred billion dollars on the war of drugs over twenty years. Five hundred billion dollars! What has it been on? Obviously it's been on police officers and fancy gadgets to stop criminals. Butit's also been on building prisons.

The part of the story that comes the closest to me now is the part of the story that deals with mandatory sentences. In 1986 came the beginning of the expansion of drug offenses, particularly on the federal side, where the amount which you came in contact with was the sole determiner of the outcome of your sentence. And what happened, of course, was that the fancy drug dealers, the people at the top of the spectrum, were able to negotiate their way out of charges because they had an enormous amount to tell. The higher you are at the top of the drug dealership, if there is such a thing, the more you had to trade for your sentences. The people who were getting the brunt of the mandatory sentences were the people who had nothing to trade and were the people, in fact, the most innocuous. The people who had the least culpability and those were the individuals who were the mules. The person who touched the drugs but in fact didn't control it. That person had nothing to say.

I have two particular examples of that. We attempted, on the federal side, to eliminate the worst part of the mandatory minimums by legislation we call the safety valve. It enables someone to escape from mandatory minimums if you are someone who is a first time offender, if you tell the government what you know, and you're not high in the hierarchy of the organization. The safety valve helps but when you realize the amount of time people are talking, it doesn't help very much.

There was a women who came before me who was a mule in the drug organization -- mule in the sense that she simply touhed some quantity of cocaine. The mandatory minimum was ten years. Her lawyer, who was not particularly good, negotiated the safety valve, in other words, convinced the government not to give her a non-mandatory minimum sentence but to sentence her according to the regular sentencing guidelines. Of course the lawyer didn't have to negotiate for that at all. That was my discretion.

The lawyer negotiated. The regular sentencing guidelines went from an astonishing ten years to an equally astonishing seven years. For a first offender who was dealing, essentially carrying drugs from one location to another. I walked out on the bench. I tried to figure out whether this made a particle of sense. I have a probation report in front of me that describes the women's life and begins to talk about what her life has been like. Well, it says she's been beaten by her father, beaten by her first husband. There are all sorts of restraining orders in the record, and no one asked whether she had been beaten by her supplier. Because of course in this lexicon, it didn't matter. The lawyer was looking at the bottom line. The probation officer saw her essentially as a stereotype. A Hispanic lady who was a mule for a drug dealer. I, on federal money, hired an expert in battering, Battered Women Syndrome, who reviewed her record and discovered that there were very complicated relationships between her and the supplier, and I departed to probation and the government did not appeal.

There are stories underneath each of the stereotypes that pass in front of me every day. So these kinds of sentencing policies have led to the United States having a higher proportion in this population incarcerated than any other country in the world. Now, maybe this is acceptable if it would make a difference. I'm going to be the devil's advocate. Assuming it would make a difference and maybe it would be acceptable that there would be these human cost, but it does not make a difference. And here I'm getting a little bit out of role. The reading that I've done suggests that, in fact, what we have done, the commentator said, is created price support for the drug industry. By attempting to restrict the supply, we have increased the profits and therefore created enormous incentives for people to continue this business no matter what. And in fact as one described it, if the cocaine industry had commissioned a consultant to design a mechanism to insure profitability, it couldn't have done better than the war on drugs. There's just enough pressure to inflate prices but ot enough to keep the product from the market. So this is enormously profitable. And another commentator described what he dubbed the Hydra Effect, which means drugs are so profitable and so cheap to produce that even if you begin to cut off the supply in one part of the world, it simply rears its head in another part of the world.

In addition, it doesn't help because there are two kinds of crimes which are essentially created by the drug war and that is (1) addiction-based crime. That is, if you're an addict, the amount of money that you need to spend to get drugs is so high it leads to crime. If it costs the same as beer or drink. It would be less so. And then there's (2) trade-based crime, essentially turf wars because it is so profitable and we have made it profitable.

I heard another judge mention another thing, that it brings people in contact with the criminal culture. You may wish to avoid ne'er do wells, but when you have to get your drugs, you obviously can't. So it brings people in contact with a culture it normally wouldn't be in contact with, and it makes the system worse in a way which directly effects what I do as a judge.

For every dollar spent on incarceration, there is one dollar less on treatment, and treatment works. Treatment works. It may not work in every case to totally eliminate use anymore than alcohol treatment eliminates all alcoholism. It eliminates abuse. And drug treatment, in some percentage of the cases, works to reduce dependence on drugs and allows people to function; and in some cases wipes it out all together.

I have sent people to prisons from one end of the country to the other where they will be making license plates and not getting treatment. And not getting treatment because the money's at the border.

The "war" mentality makes the system worse in other ways you and I can see acutely.

One way is that I think you've seen it was in 1994 that Boston police officers raided the home of Reverend Asaline Williams. It was a drug raid. It was supposed be a surprise drug raid. There had been an informant who led them supposedly to the wrong house. This is not an unusual story. It turned out it was completely wrong. The man had a heart attack and died.

The drug war relies on informants and searches of these sorts. They rely on informants because, unlike other crimes started this 30 years ago, this was described as a crime without victims. Nobody talked about that anymore and I quite agree there are victims here. But the reason why informants are singularly in drug cases is because no one is complaining, neither the purchaser, nor the dealer, nor the user. And so the only way the enforcement can take place is by informants which is a corrupting and difficult way for the system to operate.

In addition, the amount of money involved is enormous. As one judge says, "It should not come as a surprise to us that some police officers are corrupt, given the amounts of money involved. What should come as a surprise is that many are not." The amounts are enormous and the informants investigative model is one without supervision and without regulation. If I can describe the kinds of cases that have been engineered rather than engendered by the drug traffic you'll understand some of the problems. You may think some of these things are good, have been helpful, or are not unconstitutional. But it would be hard for you to listen to a list without saying our liberty has been diminished as a result of all of this.

There are forfeiture statutes that enable someone's property to be forfeited even if they are charged with no crime--merely on the basis of probable cause. There are roadblocks which the Supreme Court has affirmed. There are school locker searches without probable cause. All part of drug cases. We now have preventive detention in the federal courts where there have never been before. There are vast exceptions to the exclusionary rule, vast exceptions to the 4th Amendment's requirement of a warrant, particularly dealing with cars. And all of this engendered by the drug war. There's drug testing now from one end of the land to the other engendered by the concern about drugs.

And then in the two areas that I was personally involved in, the area in which I mentioned in the beginning, being spied upon, subpoenaed, and sued. There's a war on lawyers. I was spied upon as a criminal defense lawyer. The government had an informant that came to an attorney/client meeting and reported back to the US Attorney what was going on. I was subpoenaed to testify before a grand jury to tell about the amount of money my client had paid for my services. An effort to get at the profits of crime and what they got at or attempted to get at was the attorney/client relationship and finally I was sued: the famous case of United States vs. Gertner, in which I was sued in order to get me to disclose the identity of a client who had given me cash. The cash had been reported to the IRS The amount of it -- the appropriate documents had been filed. I simply didn't think it was right to require a lawyer to tell something that would obviously help he government prosecute the client.

And the other area in which I saw up close and personal the war on drugs was representing women accused of ingesting cocaine during their pregnancy who were then prosecuted for possessing cocaine and prosecuted for what they did to the unborn fetus. An extraordinary prosecution which was ultimately dismissed but led to major public health concerns that women would avoid going to the hospitals for the care they needed for fear they would be prosecuted.

I could go on. Tenants charged with no crime are evicted because police believe that drugs are sold. This is the cost of the drug war which cannot be measured in dollars which can only be measured in liberty. To be sure you hear everyday that there is some successes, demand may be down this year or that: fundamentally five hundred billion over 20 years without materially a change in the amount of addiction, materially a change in the overall problem.

Where does that leave us then? It leaves us, it seems, to be with the need to open up all the premises of this debate. I started off my career at graduate school in political science. Those were the days you did everything you could to keep from graduating anywhere. And I went to the graduate school for political science, and I went to law school. And I would have kept on going but I needed to make money, and I remember reading to this day a book called The Symbolic Crusade by a man named Gusfield. And it was about prohibition, and it was bout how the individuals who were involved in prohibition really understood they were doing nothing practical but it was a moral crusade. And it was a moral statement until it began to have a consequence that has been described.

I found a similar quote to describe the drug war which I want to share with you in closing: "The war against drugs provides politicians with something to say that offends nobody, requires them to do nothing difficult, allows them to postpone, perhaps indefinitely, the more urgent questions about the state of the nation's schools, housing, employment opportunities for young black men, the condition to which drug addiction speaks as a symptom not a cause. They remain safe in the knowledge that they might as well be denouncing Satan and so they can direct the voices of prerecorded blame at metaphors and apparitions, wars and battles."

The war on drugs becomes a perfect war for people who would rather not fight. A war on which politicians who stands fearlessly on the side of good, the true, and the beautiful need do nothing else but strike noble poses as protectors of the people and defenders of the public trust.

We can't let that continue. Thank you. 

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