Disorder in the Court

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

"His views on the law and the way politics impacts the law are things he's very thoughtful about," says Denver attorney Shelley Don.

Former Colorado governor Dick Lamm, another Kane admirer, remembers the judge's dogged efforts on behalf of a boy who was convicted of murdering both of his parents. Michael James Bresnahan stabbed his mother and bludgeoned his father during a camping trip near Silverthorne in 1964. Then fifteen, the boy claimed he had been abused by his parents. He pleaded guilty and was sentenced to two life terms in prison.

Kane had been the boy's defense attorney, and he kept in touch with him while he was incarcerated. Bresnahan amazed everyone when he completed correspondence courses from the University of Southern Colorado and graduated at the top of his class with a 4.0 grade average. He dreamed of becoming a doctor and going to medical school.

Judge John Kane
Anthony Camera
Judge John Kane
John Kane celebrates at the old Lafitte's Restaurant prior to his 1967 Peace Corps departure.
John Kane celebrates at the old Lafitte's Restaurant prior to his 1967 Peace Corps departure.

"I'd been in office one year, and John Kane called me and asked me to commute his sentence," recalls Lamm. "He begged me to allow him to present his case. This young man had really turned his life around, and I commuted his sentence in 1975. He went on to become a very caring and compassionate doctor."

(Bresnahan sparked new headlines in 1999 when he applied to join the medical staff at St. Anthony's Hospital. After the staff objected to working with a convicted murderer, his application was turned down.)

Knowing his willingness to champion unpopular causes, Kane's friends say they weren't surprised when he started publicly criticizing the War on Drugs.

"Anybody who's been around the drug laws knows the silliness of it," says Canges. "In private, the police and judges involved in this will tell you it's foolish, but they won't say anything publicly. It's like the emperor has no clothes, and there he is, stark naked. We're blessed there are people with balls and brains who will speak out on this."

The War on Drugs hit the federal courts like a hurricane in the mid-1980s. Kane was horrified when Congress imposed mandatory minimum sentences in 1986, since he thought they were unconstitutional. However, the laws were upheld by the U.S. Supreme Court, and the mandatory sentences quickly changed the role of judges, prosecutors and defense counsel.

After Congress passed these harsh new laws with severe penalties, the federal government stepped up its enforcement and prosecution efforts. It poured billions of dollars into agencies like the Drug Enforcement Administration and set up hundreds of special task forces all over the country that brought together officials from a variety of government agencies to target drug dealers. Before then, most drug enforcement was done at the state level, but suddenly the federal government was filing charges under federal law.

The effect on the courts was overwhelming, says Kane. "Up until that time, we hadn't had that many drug cases. The biggest criminal cases we had focused on were bank robbery and some white-collar crime. There were anti-trust and securities-fraud cases -- those were the kind of things we were doing."

Lest anyone think he is soft on crime, Kane likes to tell the story of how he sentenced one particularly vicious bank robber and kidnapper to 325 years in prison. The last criminal case he heard was in 1988, involving a family that was smuggling drugs into the state prison system and bribing some of the guards. The case didn't fall under the mandatory-sentencing law, so Kane was able to give each family member varying sentences depending on their level of involvement and his judgment about their potential for rehabilitation.

"If I was going to sentence somebody, I wanted to look at them face to face and tell them why I was doing what I was doing," says Kane. "I couldn't see how you could look at a chart and sentence somebody without regard to their individual circumstances."

The federal drug laws give prosecutors key advantages, Kane asserts. With the threat of long sentences hanging over their clients, defense attorneys are more likely to accept plea bargains. Such back-room deals are often made before charges are even filed. Prosecutors are also able to demand that dealers turn in others in the drug business in return for lesser charges.

"It has shifted the law-enforcement function from one of investigation to one that's based on informants," says Kane. "People get more favorable sentences if they cooperate, and only the government can say they've cooperated."

The people who get rewarded are the snitches, and Kane says they're often the people who are least likely to be rehabilitated.

"When I was sentencing people and an informant would come in, the first thought that would occur to me was: 'What sort of basic qualities of character do I have to deal with that would help rehabilitate this person?' Obviously, loyalty is out, concern for others is out. The chances of doing rehab with someone like that are seriously diminished."

The mandatory minimums have had other, unintended consequences. Because big-time dealers have more information to give prosecutors, they're often more likely to strike a deal than small-time dealers. Some studies have found that more than half of the people in federal prison on drug charges are classified as low-level dealers or "mules," people who transported drugs for others. Many drug offenders also wind up serving longer prison terms than people convicted of violent acts.

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