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Disorder in the Court

Judge John Kane has seen too many casualties in the War on Drugs. Now he demands a government retreat.

United States District Court Judge John L. Kane is informally holding court behind his desk in downtown Denver's federal courthouse.

The 64-year-old jurist puts on his reading glasses, arches his bushy gray eyebrows and begins leafing through a pile of articles he keeps in a folder. He pulls one out and solemnly begins reading what is essentially an indictment in the most serious case he's ever considered in his 23-year career on the bench.

The plaintiff? The people of the United States of America.

The defendants? Politicians who have passed the nation's harsh drug laws, which bristle with mandatory sentences for possession of even small amounts of illegal substances.

The charges? Wholesale hypocrisy and cowardice.

Kane is only too aware that of the estimated 300,000 people now in prison on drug charges, most are poor, and many are black or Hispanic. They have no access to the one nearly foolproof way to avoid doing time on drug charges, which, according to Kane, is to be related to a prominent politician. To prove his point, the judge pointedly recites a list of Washington insiders who have eluded the ironclad machinery of drug laws. His rich baritone rises with indignation as the examples roll on:

A California congressman's son, arrested after flying in 400 pounds of marijuana, tests positive for cocaine three different times while on bail. Instead of being handed a fifteen-year sentence, the well-connected young man gets only a short two and a half years in prison.

Then there's Arizona senator John McCain's wife, Cindy McCain, who admits to stealing Percocet and Vicodin from a charity. Even though illegal use of the pills -- classified by the government as Schedule 2 drugs, which puts them in the same category as opium -- carries a penalty of one year in prison, McCain is allowed to enter a treatment program instead.

Finally, Kane notes that a New Jersey congressman's daughter who pleaded guilty to two counts of cocaine possession is put on probation rather than having to serve the five to ten years in prison for each count. Following this disposition, the congressman tells his constituents: "I'm very proud of her efforts to rehabilitate and her acknowledgement of the seriousness of her problem."

Kane scoffs at the reference to "rehabilitation," because he knows there are thousands of people serving long terms in prison who were never given that chance.

"This is the kind of crap, the hypocrisy, of the whole thing," says Kane. "You expect common people to live in fear, but the children of the politicians are the first ones to get off."

It's highly unusual for a federal judge to publicly denounce the laws of the United States, but Kane has taken on a high profile in criticizing the government's drug policies. For the past three years, Kane has been giving speeches and writing articles attacking the country's war on drugs, which he sees as an outrageous abuse of power that has wasted billions of dollars and destroyed thousands of people's lives.

"I think our national policy is nuts and has been for years," says Kane.

As a senior judge, Kane can choose the trials he wants to be involved in. As a matter of principle, he refuses to take drug cases. Before going public with his criticism of the system, he consulted with a federal judiciary committee on ethics and Stephanie Seymour, the chief judge of the federal Tenth Circuit, to make sure they had no objections. That left him free to speak out on the laws that have brought a deluge of low-level dealers and addicts into the court system. Kane has seen hundreds of young people receive long sentences, with no opportunity to turn their lives around.

"From the '80s onward, we abandoned in the law the notion that the primary objective of the criminal justice system was rehabilitation," says Kane. "We take males off the streets between the ages of eighteen and forty until their testosterone levels go down and they don't commit the same kinds of crimes. That's warehousing. We take these seventeen- or eighteen-year old kids, mostly minorities, and they have to join a gang for protection [in prison]. All they have to do all day is lift weights. They go in at 150 pounds and come out at 250, and they're extraordinarily angry. They're antisocial and dangerous. Their spirits are crushed."

But it's not just the people receiving the severe, mandatory sentences who feel crushed by the war on drugs. Even the judges handing down these penalties feel dispirited, because they aren't allowed to make judgments based on individual circumstances. Kane says many of his colleagues on the federal bench have told him they find the drug laws insulting.

"It turns sentencing into a bureaucratic function," says the judge. "It makes everybody march to the same drumbeat. There's something totalitarian about it."

Abuse of authority, racism and totalitarian governments aren't abstractions to Kane. He faced all of these evils in his formative years, and that experience led him to revere the Constitution and the rule of law. It's those same values that compel him to criticize the very government that signs his paycheck.

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