Tempe’s conscience, criminal defense lawyer Matt Brown, found a fascinating post by United States District Judge Richard Kopf at his Hercules and the Umpire blog. Despite his occasional bloggy naiveté, Judge Kopf is generally frank, funny and transparent, sometimes to the point of awkwardness.
But the post Matt found, a response to a comment by another federal judge, Mark W. Bennett, was disturbing. Judge Bennett, who has been at the forefront of challenging the federal reaction to drug conspiracies that has failed miserably to win the War on Drugs while wreaking havoc with our poor and minorities, was implicitly called “foolish” by Judge Kopf for not embracing the view that drug crimes are inherently violent crimes. It was an aside to a post about the success of a cooperator who, post-sentence, got his life together.
Additionally, Ben’s success is a strong antidote to the corrosive cynicism that constantly threatens to creep into my soul as I sentence people for what the foolish call “non-violent drug crimes.”
After the poke, Judge Kopf wrote to explain why drug crimes are violent in a post entitled, No more bullshit: In the federal courts, there is no such thing as a “non-violent drug crime.” (I told you it was occasionally awkward.)
The drug crimes prosecuted in the federal courts are always violent, and I mean that literally. When you distribute a substance that you know is poison to another person that is a violent act. Period. End of story. Moreover, the connection between guns and drugs is beyond dispute. Not every purveyor of drugs uses or carries a gun, but the world where they operate organizes around one thing and one thing only, guns. Still further, whole neighborhoods that were once rich, vibrant and nurturing are now literal war zones because of drugs. In large swaths of America, functional families are no more because of drugs. Like global warming, these are inconvenient truths.
Matt parses this paragraph line by line, noting in particular the near-total absence of foundation for grand assertions, relying instead of judicial fiat. As he puts it,
It’s really the manner of his argument that’s most fascinating in the end. I’m just a lowly defense attorney, so it’s tough to make a point without the luxury of words like “period,” “end of story,” and “beyond dispute” automatically having weight. Even trying results in disaster. Trust me. Being a judge must be great, though.
Yes, it’s great to be a judge, being able to pound a gavel and assert with certainty that something is because you said so. No, lawyers can’t get away with such arguments, unless they happen to comport with the judge’s bias, in which case “obvious” and “clear” is, indeed, obvious and clear.
But since Judge Kopf broke the language barrier of the courtroom, I will follow his lead: No more bullshit. This is nonsense.
On a superficial level, it’s rather shocking that Judge Kopf offers such a facile assertion. There are issues about whether any of his claims, literally, bear up to scrutiny. Alcohol was a violent crime during the hiatus when it was illegal. Al Capone ran booze, and he did it with guns. Today, alcohol is a respectable industry. So was alcohol the problem or making it illegal the problem?
Even today, alcohol is “violent” as people die at the hands of the drunk driver. Alcohol is violent as families are destroyed by alcoholism. But we don’t blame alcohol. When someone drives drunk, we blame the driver. When a family is destroyed, we call it an illness in need of a cure. What we don’t call it is violent.
And if you think the example of alcohol too trite, what about gambling? Of course, it’s now run by the government, though not nearly as well as it was run by the uptown numbers guys before.
On a deeper level, however, the wild, generic conclusions about violent drug crimes defy every precept of individualized consideration of crime. While zealots tend to prefer ignoring the details in favor of sweeping generalizations, judges aren’t supposed to be zealots, but neutral magistrates. Perceptions of crimes aren’t macrocosmic, but microcosmic; each individual comes before a court guilty or not of what he, individually, does.
Having some experience with individuals charged with drug crimes, I can state with certainty that some engaged in, or were prepared to engage in, violence to keep their turf and silence any threat to their business. But I can also state with certainty that some refused to go anywhere near violence. Some sold heroin to children, but some sold cocaine to Wall Street bonus babies looking for a good time on a Friday night.
Many years ago, it occurred to me that a particular guy would have been an executive vice president at IBM if only his skin color was different and he had been educated in a school that didn’t start with a “P.S.” He was a terrific businessman, and ran a safe, quiet and highly profitable business. He protected his neighborhood, kept the peace, and was charitable and helpful to others. He sold drugs.
No, not all drug dealers were that way. But not all drug dealers were Tony Montana either. And that’s the point. To maintain the image of some inherently violent culture that pervades each and every participant, literally, is to buy into a load of bullshit. And it is not beyond the pale to expect our judges to realize this rather than to embrace the hard-line fallacy of pervasive violence.
This isn’t to say that judges can’t believe that all drug crimes are crimes of violence, and simultaneously believe that our sentencing regimen remains outrageously harsh, or still recognize that a particular defendant’s conduct makes him less culpable than others. But when there remains a sub rosa bias of violence based on such absurdly broad and generic assumptions, wrong assumptions, then it must come to the surface and be addressed. No more bullshit. It’s just not true.