Disorder in the Court

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

In 1983, one of every ten federal inmates was in prison for a drug offense. Today it is one out of two.

And even though it's widely believed that the majority of drugs in the United States are consumed by white people, most of the inmates incarcerated for drugs are black or Hispanic. An estimated one out of three African-American men will spend some time in jail, often on drug charges. Kane believes this discrepancy is slowly destroying support for the law.

"We're creating a totally different social norm," he says. "We've made going to prison a rite of passage. For these people, the rite of passage is to belong to a gang, go to prison and have as many children as you can. For every guy they send to prison, they have two more guys who are happy to take over. That's a significant social shift."

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.

When lawbreaking becomes socially acceptable, the legal system breaks down. "It makes the law irrelevant," says Kane. "They're making laws nobody pays attention to."

With issues of race and class so central to the war on drugs, it would be easy to view it as a civil-rights issue. Kane doesn't disguise his disappointment with much of the black community's indifference.

"There are too many people in the black community who've gone on to mortgages and car payments who don't give a damn," he says. "There's not enough of a sense of outrage. If the arrest rate in the suburbs was the same as in the inner city, the War on Drugs would be over with today."

Kane thinks the federal government should get out of the enforcement business and go back to letting the states determine drug penalties. "There's not one simple answer for every place in the U.S.," he says. "Each state can become a laboratory of democracy."

However, Kane would be willing to go further than many of the other people who are working to reform American drug laws. He favors outright legalization of most drugs.

"We need to stop this nonsense of the black market and fueling organized crime," he says. "There's no great incentive for kids to sell drugs if there's no money in it. There's no incentive to bring drugs into the country if you can get them legitimately."

Kane would have drugs available to those who want them in a place where treatment for addiction was also provided.

"Does that give the wrong message to children?" he asks. "The message they're getting now is that their parents can smoke and drink, but they can't smoke marijuana or use cocaine. Wouldn't the better message be 'We don't want you to do it, but if you do, we're here to help you'?"

There are a dozen or so other judges around the country who have joined Kane in denouncing the war on drugs. He says many of his colleagues tell him -- privately -- that they agree with him. "Usually the response is 'Of course you're right, but I can't say anything about it.' A couple have said I'm fomenting disrespect for the law. Most say 'I can't give the appearance of being biased.'"

Kane's outspokenness is unusual for a judge at any level, but his position on the federal court has put him in the limelight. Recently he traveled to Berkeley to speak at the University of California law school, and he has given speeches denouncing the nation's drug policies at the Western Governors' Association meeting and at Stanford University. He also serves on the board of the Drug Policy Foundation, a group that has spearheaded many of the initiative campaigns to reform drug laws around the country.

In 1998, Kane added his name to a two-page ad that ran in the New York Times under this banner: "We believe the global war on drugs is now causing more harm than drug abuse itself." The ad, which appealed to United Nations Secretary General Kofi Annan for a major shift in drug fighting worldwide, was also signed by veteran newsman Walter Cronkite, former senators Claiborne Pell and Alan Cranston, former secretary of state George Shultz, conservative economist Milton Friedman and former New York police commissioner Patrick Murphy.

Governor Gary Johnson of New Mexico -- also a critic of the nation's drug laws -- last year appointed Kane to a state commission that recommended changes in New Mexico's drug policies. The group advocated expansion of treatment programs all over the state, as well as changing state law so that first- and second-time drug-possession offenses would become misdemeanors requiring automatic probation and substance-abuse treatment.

Being silent simply isn't an option, says the judge. Just as his involvement in the civil-rights movement shaped his worldview, Kane's memories of the McCarthy era have convinced him that he must speak out.

His generation was often referred to as the "silent generation." Kane remembers a fear of non-conformity that arose following the Red Scare hysteria of the early 1950s, when anyone who had been involved in left-wing activism was suddenly suspected of being a Soviet mole.

"There was a reluctance to engage in any kind of activities which might bring attention," he says. "You'd go to school and there would be a teacher there, and the next day he wouldn't be there, and they wouldn't tell you why -- there would be no explanation. A lot of the people who were blacklisted and brought before the House Un-American Activities Committee were the age of our parents. We saw a lot of people being brought before those committees."

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