Only The “Foolish” Call Drug Crimes “Nonviolent”

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.

18 comments on “Only The “Foolish” Call Drug Crimes “Nonviolent”

  1. Tom

    I cannot fathom why some people don’t understand that the fact that drugs are illegal creates most of the violence that surrounds them. Drug dealers can’t take their debts to collections or enforce their contracts through court action so the use of violence as a tool and deterrent is all they have. They’re also attractive targets for robbers because who wants to go to the police and report their stash of crack cocaine and $50,000 cash proceeds from sale of drugs was stolen. Increasing the penalties for drug sales and distribution only makes the violence worse. In a cost benefit analysis of a police encounter, the harsher the penalty the more attractive assaulting officer to escape becomes.

    Drug dealers are rational actors within the bounds of system we’ve created around them. I guess most of those who’ve spent their careers jailing, convicting, and sentencing drug offenders see themselves as “good guys” and will find a way rationalize the harm they’ve caused as “good.” Moral crusaders who think they’re doing “good” are worse than bad guys who know they’re doing wrong.

  2. AP

    I just recently started reading Judge Knopf’s blog and a couple of things jumped out at me, especially after reading his post on the violent nature of drugs. How can his public musings, especially when they’re so definitive, (as you note by using “period”) not be met with a wave of recusal motions by defence counsel? How , after reading that piece, could you tell your client that Judge Knopf will be objective impartial judge when listening to your case?

    My other issue is that Judge Knopf wants to suck and blow at the same time. On the one hand he likes to mix it up like lawyers often do but on the other hand how hard can you really go after his arguments knowing that you’ll be appearing before him tomorrow. Can you call his arguments bull shit without inviting some kind rebuke for disrespecting him and his position?

    I must say though that Knopf’s blog and Justice Scalia’s interview this week on the workings of the devil are 100% bizarre to my Canadian lawyer’s eyes. I could not imagine a judge in this country giving that sort of interview or writing a blog. I’m not saying the American way is wrong, it just certainly is different, that’s all.

    1. SHG Post author

      My point in calling it “awkward” was the mixing of his open approach to discussion (including some of his more provocative word choices), which I frankly admire, and his being a federal judge. I’m old school. Even though I write about this as blawger to blawger (which means everything is fair game), I can’t call him anything other than Judge Kopf. He’s a judge. No matter how banal his language or ideas, he’s still a judge. And no matter how much I agree or disagree, love or hate, what he writes, I cannot bring myself to forget that he remains a judge. It puts a bit of a damper on things, but it remains more interesting than the alternative, that no judge ever offers frank discussion. So, we take the good with the awkward.

  3. Pingback: Two really good criticisms of my views about drugs, violence, and victimless crime « Hercules and the umpire.

  4. Fubar

    SHG wrote:

    I can’t call him anything other than Judge Kopf. He’s a judge. No matter how banal his language or ideas, he’s still a judge.

    So is Judge Robert W. Sweet of SDNY. I daresay that Judge Sweet’s view on the subject, and his approach to informal discussion of the subject, is far more sensible, and frankly, intellectually honest. Judge Sweet does not base his arguments on “because I said so”.

    But, as Upton Sinclair observed more than 75 years ago, “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”

    1. SHG Post author

      Despite being in SDNY, I’ve never had a case before Judge Sweet. I have, however, had a client who had a personal connection with the judge, and who sought the judge’s thoughts during the course of my representation. He did nothing inappropriate in any sense, but his thoughtfulness brought comfort to my client. And we prevailed on appeal, reversed and indictment dismissed. Still, I would never mention a word of it unless Judge Sweet remembered and invited a discussion. Otherwise, it wouldn’t be my place to ever raise the matter, but I still remember and appreciate what he did.

      1. Fubar

        My footnote-ish followup crossed with your response, because I thought my point from Sinclair needed clarification.

        I understand and appreciate your point here. I was only pointing out an example of a sitting judge with very different views on drug policy. Judge Sweet has met not inconsiderable fame in some circles over the years for his views on the subject (not from the bench of course).

        Unrelated to this subject — you’ve made some firecracker posts this week, and I’ve been too busy with other things to comment. But I sure enjoyed the diversion of reading them.

        1. SHG Post author

          Heh. Yeah, it certainly seems like I’ve ruffled a feather or two. There may be no fame and wealth in blawging, but there’s always the joy of knowing somebody new hates you every day.

  5. Fubar

    And, yes, I understand that a federal district court judge’s salary does not depend upon his political or policy views. But I think Sinclair’s point has some broad applicability regardless. Stating a view opposing government policy typically will not enhance the career of any judge at any level of government.

  6. Anonymous

    Socrates said: “Four things belong to a judge; to HEAR courteously; to ANSWER wisely; to consider soberly; and to decide impartially.”

    Mr. Kopf’s ignorance and unfamiliarity with logic and reasoning skills are exceeded only by his profound unsuitability to be a judge in a civilized society.

    1. SHG Post author

      No, that’s totally unfair. Judge Kopf may harbor some bias in his adoption of a gross generalization and dubious correlation/causation reasoning, but his being open about his views, and his willingness to consider other views, is a huge and important factor to his credit. While it would be nice if all federal judges agreed with me and my reasoning at all times, I would greatly prefer Judge Kopf on the bench than many who conceal their bias and will never consider any view that doesn’t confirm theirs.

  7. H. Skip Robinson

    I guess the Judge doesn’t understand the concept of malice, free will or self ownership. He doesn’t understand that the rational use of most recreational drugs doesn’t necessarily harm people. Cocaine, opiates and marijuana have been used for millenniums, are all natural substances that have positive attributes as well. That prescription drugs kill way more people than recreational ones do. That the drug prohibition is causing much higher prices that gives people incentives to commit other crimes. That a drug prohibition causes cartel and gang warfare fighting over territories and distribution routes. That our prisons are filled to the gills with drug related prisoners and that we are punishing people way more than the crime could possible cause on society. That his position is not supported by any valid science. Perhaps the judge is being facetious/fascist and really saying that we treat all people committing activities in competition with the illegal drug industry we control, will be treated with violence. Or perhaps he is just foolish.

  8. Anonymous

    I would greatly prefer that you agreed with me, my fairness and my reasoning about this particular federal judge, I would prefer your views than many other blawgers who will never consider any view that doesn’t confirm theirs.

    You are full of the milk of human kindness. Mr. Kopf doesn’t strike me that way, but you may feel THAT is
    also totally unfair.

    1. SHG Post author

      I don’t know if you practice criminal law, or practice in federal courts. It’s a tough place. There are many judges who, to be overly kind, do not really care much for criminal defendants and don’t feel particularly badly about being their executioner. Judge Kopf does. Given the choices available, it could be a whole lot worse, and if that fills me with the milk of human kindness (today, at least), so be it. I’ve seen good, bad and worse. And then I’ve seen even worse than that. To have a judge who will even give me a fair listen before hanging my client is better than the alternative.

      1. AP

        Agreed. I’d take a judge who honestly considers what I have to say any day. There’s no worse feeling than starting a trial and watching the judge start typing his reasons for conviction.

  9. Bruce Coulson

    “A man believes what he wants to believe, and disregards the rest.”

    When an intelligent, educated person makes statements completely at odds with the facts (particularly when those facts are neither hidden nor esoteric), then they are stating a belief. And beliefs are hard to shake; as Twain observed, people are very good at rationalization.

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