Disorder in the Court
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.
John Kane has spent most of his life in Colorado, but he can't claim to be a native. "I was born in New Mexico," he says with a boyish grin, "but I was conceived in Colorado."
His birth year, 1937, was the height of the Great Depression, and Kane's father -- John Lawrence Kane Sr. -- had gotten a job as a pharmacist in the tiny town of Tucumcari, New Mexico. Kane's parents had been living in Denver prior to moving to New Mexico, and they returned to Denver when he was just two years old.
The Irish Catholic family settled in the neighborhood around 16th and Steele streets, near City Park. Most of the families in the area were either Irish or Jewish. A world war soon erupted and turned the young Kane family upside down when John Sr. was called to service as a Navy medical officer on a tanker.
"He was involved in several major Pacific battles, Iwo Jima and Okinawa. Essentially, he was the ship's doctor," Kane says. The elder Kane saw the carnage of war firsthand as he treated sailors injured in battle.
Also disturbing were the stories the future judge heard of the mass murder of Jews in Europe.
"Lots of friends of mine had relatives who were lost in the Holocaust," says Kane. "When you thought of government, you thought of the German government, which was evil."
Like others in his generation, his beliefs were forged by World War II.
"I think the war had a powerful effect on all of us," he says. "We'd go to the movies and see war propaganda films. There was rationing. My dad wasn't [home]."
Kane attended a Catholic elementary school, Byers Junior High and South High School. He recalls Denver as a city in which you could tell someone's ethnic background simply by finding out their address.
"The Italians lived in one area, the Germans lived in another. You had a Polish-speaking Catholic church in Globeville. There were lots of Poles and other Slavic people who lived there. They came out to Denver from Chicago to work in the packinghouses."
Most of the ethnic communities were grouped around churches that catered to immigrants. Many of the churches in northwest Denver, such as Mount Carmel, had largely Italian congregations. A Dutch community centered on South Pearl Street had its own distinct houses of worship as well. "They actually wore wooden shoes for their festival," says Kane.
He remembers very little ethnic tension in Denver in those days, but he always knew that his family was not part of the Protestant Anglo-Saxon aristocracy that controlled the city's most important institutions.
As he grew older, Kane became more and more aware of one Denver racial group whose members were true outsiders: the black community. Even though Denver never had the overt racism found in the South, Denver's African-Americans often had second-class status. Kane realized there was an unspoken dividing line that ran through City Park, with neighborhoods north of the park reserved for blacks.
"In those days, life anywhere in the United States wasn't good for blacks, even in Denver," he says. "The downtown theaters were segregated, and geographically, people were separated."
There were only about a dozen black students at South High School. Likewise, when Kane went on to the University of Colorado in Boulder, the school had only a tiny number of black students. Nevertheless, he was greatly affected by a black English professor, Charles Nilon, who helped him to see things through the eyes of black Americans. When he entered law school at the University of Denver in the late 1950s, he found himself in the middle of a racial controversy that was a harbinger of the civil-rights revolution.
"There was a Jewish student from Chicago who was married to a black woman from Jamaica," recalls Kane. "Several professors disapproved. They didn't want him to be permitted to join one of the law-school fraternities. There was a black guy in our class as well. The black guy and I heard about the Jewish guy and his wife and said, 'To hell with it. We're not going to join any organization like that.' We got other people to join with us in that view."
Eventually the professors backed down and invited the student to join the fraternity. But Kane's first experience of challenging the establishment was just the beginning of a deeper commitment.
During his early years as an attorney, Kane lived in an apartment at 14th and Lafayette streets, near the First Unitarian Church. One day he noticed a sign in front of the church saying that the minister, Richard Henry, was giving a series of sermons on capital punishment. He started attending and met several attorneys involved in the civil-rights movement, including the legendary black lawyer Irving Andrews. Soon Kane found himself defending civil-rights protestors in court.
"The Congress on Racial Equality was a somewhat militant group -- they were picketing and believed in public demonstrations," says Kane. "The CORE people would picket, and they'd get arrested for picketing on public property. They needed legal representation."
The King Soopers at 33rd and Dahlia was a frequent target of the picketers. "They were taking their day-old stuff and putting it out there," says Kane. "The only blacks they were hiring they would put in stores in the black community, and they weren't promoting any of them. The original pickets were saying 'Stop sending your old products here. We want the same products offered anywhere. Stop hiring only for here. We want equal hiring and promotion.' King Soopers would call the police, and they would come and arrest these people for picketing on public property and trespassing."
The young lawyer would then go to court to challenge the arrests. He was startled to discover the protestors really didn't want to get out of jail.
"Most of our clients were really angry with us because we got them acquitted. It was the Gandhian approach of you get arrested and drop down and play dead. Make them haul your ass away -- nonviolent resistance. The idea of being able to go to jail protesting was good, but we kept getting them acquitted. There was some tension there."
In 1963, Kane and Andrews went to the March on Washington together. After hearing Martin Luther King Jr.'s famous speech, they went on to New York for a meeting of the NAACP Legal Defense Fund and met some of the most famous civil-rights leaders, including Roy Wilkins and Jack Greenberg.
Up to that time, Kane says he had never heard the term "liberal." In the '40s and '50s, people had either supported the New Deal government programs or opposed them, but the liberal/conservative labels weren't widely used. Kane and Andrews had chosen to fly to Washington because they had been working on a legal case right up to the last minute, but when they returned to Denver, they discovered some people didn't approve of their mode of transport.
"That was the first time I had ever heard about liberals," he recalls. "People had gone to the March on Washington on church buses; they would fill them up and play guitars and sing. They'd stay at churches and in school gyms. When we got back, we heard a couple of people had said, 'Andrews and Kane aren't real liberals, because they flew rather than take the bus.' At that particular point, I said, 'Well, there's an orthodoxy to liberalism that makes it too restrictive for my views.'"
Nonetheless, he remained an active member of the Democratic Party. Kane was also involved in setting up the public-defender program in Adams County, one of the first such programs in the state. After three years of legal defense work, he felt burned out and was looking for a new challenge. Married now with four young children, he thought it would be exciting to take his family to live abroad.
A friend in Washington suggested he look into a new government agency called the Peace Corps.
"At that time, I had this totally naive notion that if you joined the Peace Corps, they'd give you a plane ticket and a knapsack," says Kane. "I said, 'I can't volunteer -- I have four kids.' He said, 'They have a staff, you dumbass. It's a government program.'"
His first assignment was as a Peace Corps deputy director in Calcutta, India. However, he soon came down with dengue fever, and after recovering, he was transferred to Turkey.
Returning to Denver in 1969, Kane worked with a group of water-rights attornies who didn't like having to make arguments in court and asked him to take over that part of their practice. He caught the eye of Peter Holme, of Holme, Roberts & Owen, long one of the city's top-flight legal firms. Holme asked Kane to join the firm, and he stayed for seven years. When former federal judge Alfred Arraj retired, Colorado senators Gary Hart and Floyd Haskell put Kane's name on a list of nominees for the position. In 1977, President Jimmy Carter, a Democrat, gave him a lifetime appointment to the federal court.
Kane's personal charm had earned him a wide network of boosters. Gregarious and witty, "Buddy" Kane often wears a red bow tie and is known for his fondness for gourmet food and a shot of whiskey.
His large desk in the federal building contains photographs of his wife, Stephanie, a former attorney who has established a successful career writing mystery novels. Her latest book, Quiet Time, is a psychological thriller about murder within a seemingly all-American family. His office is also home to his collection of a dozen owls -- his favorite animal -- and includes ceramic, metal, cartoon and stuffed versions.
Professionally, Kane is popular with attorneys in town and is respected as one of the more reflective and fair federal judges. "He's one of the most decent human beings I know," says Michael Canges, a local attorney and longtime friend. "He has a real empathy for other people."
The judge is also known for taking a broad view of the law and its impact on society. While other federal judges might shrug and say they're just doing their jobs, Kane worries about whether or not the public respects the legal system.
"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.
"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.
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."
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."
For Kane, the mandatory minimum sentences judges are now required to impose in drug cases smack of McCarthyism. Instead of the Red Menace, the new fear is of being seen as "soft on crime." His response is to just say no to such pressure.
"When you eliminate that sense of personal responsibility, it bureaucratizes the process," he says. "For a judge who grew up in the silent generation, the need to conform to some kind of grid is psychologically repugnant."
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