FIRlnGLlne DOLORES DENMAN, CHARLES MARVIN, EDWARD TOUSSAINT, ROBERT PUGLIA, BURTON SCOTT, ALEX SANDERS

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1 The copyright laws of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. If a user makes a request for, or later uses a photocopy or reproduction (including handwritten copies) for purposes in excess of fair use, that user may be liable for copyright infringement. Users are advised to obtain permission from the copyright owner before any re-use of this material. Use of this material is for private, non-commercial, and educational purposes; additional reprints and further distribution is prohibited. Copies are not for resale. All other rights reserved. For further information, contact Director, Hoover Institution Library and Archives, Stanford University, Stanford, CA Board of Trustees of the Leland Stanford Jr. University. 0 FIRlnGLlne HOST: GUESTS: SUBJECT: WILLIAM F. BUCKLEY, JR. DOLORES DENMAN, CHARLES MARVIN, EDWARD TOUSSAINT, ROBERT PUGLIA, BURTON SCOTT, ALEX SANDERS "DRUGS, JUDGES AND JUSTICE:, PART I, THE HIGH COST OF DRUG JUSTICE" FIRING LINE is produced and directed by WARREN STEIBEL. This is a transcript of the FIRING LINE program #2620/ 1109, taped in Newport, Rhode Island, November 15, 1996, and telecast later on public television stations. copyright 1996 FIRING LINE Transcripts and videocassettes a vailable throu gh Producers Incorporated for Television, 2700 Cypress Street, Columbia, SC /

2 MR. BUCKLEY: We're surrounded today here in Newport, and will be again in two succeeding sessions, by august presences. I speak of judges, mostly of appellate state courts, gathered at Newport for a conference of judicial cardinals. It's not easy to corral judges to appear on television. The most frequent reason given is that questions will be raised that are sub judice, which means under consideration. Since practically everything under the sun is under judicial consideration these days, encounters with judges can sometimes be vacuous experiences. [laughter] That I am sure we will find is not so today. We're going to discuss first the high cost of drug justice. The complaint has been made that the time needed to prosecute drug law violators eats up the attention of the courts to the point of leaving scarce time for handling civil suits. We will need to make do with very brief introductions. I welcome Judge Dolores Denman, presiding justice in New York State's appellate court, sometime general counsel of the Panama Canal Company; Charles Marvin, chief judge of the Second Circuit Court of Appeals in Shreveport, Louisiana, sometime district attorney; John Edward Toussaint, chief judge of the Court of Appeals in Minneapolis, professor on evidence at William Mitchell College of Law; Robert Puglia, presiding Justice, Court of Appeals, Third Appellate District in California, sometime professor of law at McGeorge School of Law; and Burton Scott, associate dean of the National Judicial College, sometime chief judge of Wisconsin's Court of Appeals; and Alex Sanders, sometime chief judge of the South Carolina Court of Appeals, now president of the College of Charleston, and former guest on this program. A look at the figures for New York State reminds us sharply that the state courts are mostly engaged in enforcing the drug laws. Let me begin by asking Judge Denman: Is there a moment when in a self-governing society, it becomes appropriate for the judiciary to object to laws on the grounds that they are increasingly hard to administer and pointless in affecting public behavior? MS. DENMAN: Are you asking me if it's appropriate for judges to speal<. out on that question? MR. BUCKLEY: Yes. 1

3 MS. DENMAN: I think so. In a public forum such as this, I think it's appropriate for us to comment on our observations and experience that has come before us, as long as it's not dealing with any specific issues that would come before the court. MR. BUCKLEY: Well, does the time ever come when you feel the initiative is yours to look a law in the face and report on the difference between its conception and its practice? MS. DENMAN: No, I don't think so. I don't think that's appropriate for me as an appellate judge. I think that's appropriate for the legislature, perhaps the executive, to speak on, but I don't think it's appropriate for a sitting judge to comment on the efficacy of the laws that-- MR. BUCKLEY: Well, how are the legislators going to find out about it? Through USA Today, or is there a more direct means of communication? MS. DENMAN: I think we can comment in our opinions. We can make some commentary about the state of the law, but I don't think that we should urge that laws be repealed. I don't think that that's our function. MR. BUCKLEY: What do you call it when a Judge Sweet on the Court of Appeals--or is he in district court?--says, I'm not going to hear any more drug cases; I'm just simply not going to do it; don't bring them to me. Is that something that a judge has authority to do? To tell a district attorney, I'm not going to handle any more of these things; I don't think they prove anything, and they are wasting my time. What about that, Judge Puglia? MR. PUGUA: I think in the case of Judge Sweet, who is, I believe, a district court judge in New York-- MR BUCKLEY: Yes. MR. PUGLIA: --it's probably a function of his tenure as a federal judge- lifetime tenure. [laughter] And I agree with Judge Denman, it's inappropriate for sitting judges to comment on the efficacy of a law, although I would add to that, and that is in their capacity as judges. We are called upon from time to time to inform the legislature about problems that they have if the legislature is-- 2

4 MR. BUCKLEY: Is this unique to California? MR. PUGLIA: I don't think so. MR. SCOIT: No. MR. PUGUA: No. MR. BUCKLEY: No, it's not unique? MR. PUGUA: No. We frequently are asked to go before the legislature and when they are examining, for instance, the drug iaws, or their application, their enforcement and so forth, we are often asked to participate in that process, which is a part of the legislative process. MR. BUCKLEY: Well now, is that a formal appearance, like the president's St.ate of the Union address, where the chief judge or whoever goes and says, "Here's what I think is working; here's what I think is not working?" MR. PUGLIA: Yes. Yes and no. Certainly judges have informal access- most judges do, I believe, if they care to exercise it--to members of the legislature, but ordinarily in its formal aspect, it's conducted before a legislative committee which is holding hearings, and judges appear as witnesses, give their views, the benefit of their expelience. MR. BUCKLEY: Well, let me ask you this, Judge, in your experience, has the point raised here today been made in such exchanges with legislative bodies?--i.e., the drug laws are soaking up more and more of our time: 500 percent increase in drug prosecutions here in New York State alone in the last 20 years. Are figures iik.e that getting out? Is it-- MR. PUGLIA: Well, they're in the public domain. MR. BUCKLEY: Yes. MR. PUGLIA: I think in California probably 25 percent of the felony proseculions are drug law proseculions, and il's well known. But lhe answer to your question is: In California, not to my knowledge. I am not aware 3

5 that that point has been made, urged upon the legislature, nor am I aware that the legislature has on its own initiative undertaken to study it, investigate it. MR BUCKLEY: Well, Judge Toussaint, are you discouraged by the frequency with which you have to address these problems to the neglect of others? I am told by Judge Sweet that it takes six years for a civil claim to get any attention at all because these drug cases simply preempt the time. MR TOUSSAINT: Well, I don't know nationwide, but in Minnesota that is not the issue for us, because our civil cases are handled in such a way that they come through our system rather expeditiously. We don't have the backlog that might have been referred to in other states. We've taken a handle on-- MR BUCKLEY: You don't have as many crimes, do you? MR. SANDERS: Colder. [laughter] MR TOUSSAINT: Well, unfortunately for us, crime has come to our culture, and we've had to work with the systems that we have in order to be able to administer all the claims that come before our court, whether they be criminal, whether they be civil. We do not have the civil backlog, either at our trial court level or at our appellate level. Likewise, the same thing is true vvith the criminal cases. We do not have that backlog. The increase for us has been in the area of juvenile law, and we are attempting to add additional resources to that area so that those cases will also be handled expeditiously. MR. BUCKLEY: How would that compare with your state, Judge Marvin? MR MARVIN: Our case load is being handled across the board rather expeditiously in Louisiana. We do not have a six-year backlog. And if the litigants in a civil case really desire quick justice and a speedy resolution of their problem, it can be handled in a matter of months, not years. MR. BUCKLEY: Does Napoleonic law do that for you? [laughter] 4

6 MR MARVIN: Well, it's not so much a Napoleonic law. [laughter] Our laws are not that ancient when you get down to it, even though they are based on the civilian tradition of the Napoleonic code. MR BUCKLEY: But you say it's handled expeditiously as distinguished from, for instance, what? The situation in New York or the situation in Wisconsin? MR MARVIN: If there is a six-year delay in civil trials from start to resolution in the trial court in New York, in Louisiana you are talking less than one year. MS. DENMAN: I think we should point out here that Judge Sweet is a federal judge. We are all state judges and preside in the state courts. Judge Sweet is a federal district judge-- MR. BUCKLEY: Yes, I know that. MS. DENMAN: --so that there is a difference. MR. BUCKLEY: What I don't know is whether the volume of cases under federal law exceed or are less than under state. Do you know that? MR MARVIN: Oh, they are way less. MS. DENMAN: Way less. MR. MARVIN: Ninety-eight percent of the caseload in the United States is handled in state courts-98 percent. MR BUCKLEY: Yes, but there are also more state judges. I meant volume per judge, not volume per America. But to pursue this point, having read so much about this dissatisfaction, we had-- Well, take New York: We had 122,000 arrests in 1995 for drugs--five times as many as The drug arrests in New York City were 98,000. Now the idea of laws, is it not, is to discourage certain kind of activity. Now, if you have-- MR. SANDERS: Or so they say. 5

7 MR. BUCKLEY: I said the idea. [laughter] The idea. Well, as president of a college, what do you teach them when somebody comes up with anything so banal as to say that law is supposed to discourage bad activity? MR. SANDERS: Well, I'm not sure what we teach them. We probably teach them most often the ideal of law. We teach them to be good citizens. I have always thought, though, that of all the many vanities of law, the greatest is that law has a profound effect on how people behave. Law is more a statement of the values of a society than it is a practical solution to immediate problems. Actually on the subject of whether or not it's proper for judges to speak out and call attention to statistics and imperial experience-- MR. BUCKLEY: Yes. MR SANDERS: --that's largely beside the point, I think really. A person would have to live on Mars not to know the problems of the narcotics crimes in America today. You can read USA Today, for example-- I read in USA Today that 20 million Americans had smoked marijuana, and then I knew from other sources that only two didn't like it--bill Clinton and Clarence Thomas. [laughter] What odds! What odds--20 million to two. [laughter] And that, of course, is the heart of the problem. MR BUCKLEY: Yes. Of course, it's not fair to say that about Mr. Clinton, because after all, he didn't inhale, so he says. [laughter] But it is true that, for instance, once every year or two the chief justice of the United States goes to Congress and says, Look here, here's a report to you. I'm not sure that it's a formal contract, but it does happen. MR SANDERS: It happens in every state. MR BUCKLEY: But my point, Judge, is that it must be very discouraging - Let's say you and I were by profession subway painters. The idea was to make subways look good. But as we painted, the graffito people increased the industry of their vandalism and so we are painting harder and harder and harder and the subway gets dirtier and dirtier and dirtier. Now this is frustrating, isn't it? I guess I'm asking: Do you experience at the College of Charleston a sense of frustration by the paradox of more complaints, more drug taking? 6

8 MR. SANDERS: Well, I'm not sure the College of Charleston is the proper laboratory to examine. We are an exquisite little institution that really doesn't have those problems visited upon us in any great proliferation. MR. BUCKLEY: You get a [unintelligible] though. [laughter] MR. SANDERS: Yes, I know about it. I'm not ignorant of it. The ivory tower is not utterly without outside communication. But the problem may be overstated. Let's look at it this way. Is the court system any more than just a little corner of the problem--that of 25 million--if you want to start with statistics--25 million serious crimes committed in America every year, only about 15 million of those are even reported. Now I'm not talking about petty crime. I'm talking about major crimes. Only about 15 million are reported. The police arrest about three million of those 15 million. The rest go unsolved. And of those three million, only about two million are convicted, and 500,000 go to jail via the judicial process. So we don't touch but about a half a million out of 25 million people who are the criminals in America. MR. BUCKLEY: Well-- MR. SANDERS: And yet we spend all of our time and all of our resources addressing that half-million. If we got on the other end of the funnel, it seems to me that we could more productively deal with the problem of narcotics. MR. BUCKLEY: Well, Judge Scott, let me ask you this. Again in New York State, because I have the figures, judicial action accounted for 45 percent of 23,000 commitments, i.e., 43,000 people who were sent to jail were sent to jail for drug charges. Now the question before the house which I am trying to field is not, are drugs an incorrect reflection of the ethos? Jefferson said that public opinion was much more important than laws because laws are merely the codification of public opinion. Jefferson tends to be half right in matters like that [laughter] but interestingly so. But I beg you to tell me whether there is a legitimate sense of frustration when there is an increase in the activity you set out to discourage? 7

9 MR. SCOTI: Well, I think the times that I sat on the juvenile court when I was on the trial bench were very frustrating--! would have to admit that- because you are trying to deal with people and trying to correct them, and there aren't many resources available to juvenile judges many times to accomplish that. I feel personally--and now that I am a retired judge, I feel much freer to speak personally--that our present policy should be really seriously reexamined in the whole area. I think that-- You know, you look at California. It's my understanding that California-- MR. BUCKLEY: We'll be talking about that down the line. MR. SCOTI: Oh, well-- But they have had an increase of 450 percent in female commitments to prison in the last 10 or 12 years. They've gone from 1300 to around 7200 female prisoners, and mostly attributable to drugs. And at $25,000 a prisoner, I think that we just have to practically look at this after awhile. I'm not saying that I like drugs or that I've ever tried drugs or anything of the nature. But I think it's time that we just, as a matter of survival, take a look at it. Frustration? I think the judges--the trial courts more than the appellate courts--get frustrated with this. And I think that our new resources that you see coming into most states are in the form of drug courts or special courts to handle drug cases. All of the new resources that we need are being devoted to the "war on drugs." And I think that's quite frustrating for people who are sitting there trying to handle the civil calendar or other things and trying to give justice to people who are the law-abiding citizens. MR BUCKLEY: Sure. Sure. Well, let me try putting it a slightly different way. I have heard the figure that 85 million Americans have at some point experimented with an illegal drug. Now that means 85 million people broke the law. That means if we had a real law and order society, 85 million people would be put in jail. But we don't really want that, do we? I mean, that would crowd the jails--[laughter]--to have 85 million people there. So now, Mayor Koch, when he was in Congress, asked me to come down and testify. What he wanted was a commission to explore the whole marijuana case. And he couldn't get enough co-sponsors, and he'd tried for two years. I volunteered to go and mal<e a statement for him, and he said, You know, all of a sudden I've got a lot of sponsors, because my colleagues are finding out that their children in college are sniffing marijuana every now and then, and they would just as soon they not go to jail. So that 8

10 became a presidential commission under President Nixon, and that commission recommended dropping the legal sanction against marijuana, but Mr. Nixon rejected it. Now-- Yes, sir? MR. MARVIN: I was a district attorney during those years-- MR BUCKLEY: Right. MR. MARVIN: --in the early '70s, and the penalty for the crime was reduced from a felony penalty to a misdemeanor penalty, and the peak year happened after that. It grew from--1 forget the number of millions--but it grew to 24 million in 1 979, and I think in 1994 it's down to about 10 million marijuana users. MR. BUCKLEY: Your point being that reducing the law reduced the number of miscreants? MR MARVIN: I don't know that you can attribute it to that, but I'm just giving you those figures. You can argue from those figures whichever direction you want to go. [laughter) MR. BUCKLEY: Yes. Well, I guess the direction I want to go is that it seems to me that an awful lot of energy is being put into an activity that is so widely flouted as to make you wonder whether-- MR. MARVIN: [unintelligi.hle] MR. BUCKLEY: Yes, that's right, whether that kind of energy should go into it. The prison population of New York has increased I 00 percent exclusively on account of these pulsations. The ten-millionth American arrested for marijuana was arrested last May. Ten million arrested for marijuana. Now, if you say, okay, it was tough--sort of [unintelligi.hle] from now--you've licked it-no more marijuana--that would be a nice thing to be able to say, but that doesn't happen, does it, Mr. Puglia? MR. PUGLIA: The unstated premise of this is that the existing laws sanctioning the use of marijuana, trafficking in marijuana, do not work. That is, they don't deter that kind of conduct. I'm not sure that I accept that. When these large figures are noised about 25 million, whatever the 9

11 number of users, children of congressmen included, those are casual users. Those are not the people who are impacting the criminal justice system. It seems to me only a very small percentage of those who are involved in marijuana appear on police blotters as it were. But when we are asked to examine this question, whether or not it's even implicit in the subject of our discussion this morning--a subject which I assume you chose--the high cost of drug justice, implying that it's too high, that those who would maintain that it does have a deterrent effect are then placed in the position of proving a negative. MR. BUCKLEY: Yes. MR. PUGLIA: How many ships did not hit the rocks because the lighthouse was there? We don't know that. But I think it's interesting, particularly when we talk about marijuana in the context of many casual users, many of whom are youngsters who are middle class, who are onetime, two-time users and then move on to something else, the same thing can be said of teenage use and abuse illegally of alcohol. And yet-- MR. MARVIN: And tobacco. MR. BUCKLEY: Tobacco, yes. MR. PUGLIA: And tobacco. And yet I have not heard anyone who has advocated that simply because in this cohort there is widespread abuse of the law, that therefore it is not working. We have laws that prohibit minors from purchasing and using alcohol and tobacco, and they don't work. I mean, that point could be made-- MR. BUCKLEY: Yes. MR. PUGLIA: --I think as readily as the point is being made here relative to marijuana. MR. SANDERS: At the same time, I think it's important to examine the correlation between law and the proliferation of marijuana. MR. BUCKLEY: Very much so, yes. 10

12 MR. SANDERS: That's the only real evidence that we have. The lighthouse problem exists, as Judge Puglia has pointed out, but I as a lawyer-- MR BUCKLEY: Well, the lighthouse in Amsterdam: There is less marijuana smoking in Amsterdam, where it's legal, than in Cambridge, Massachusetts, where it's illegal. MR. SANDERS: I had what I believe to be the first marijuana case in South Carolina when I was a lawyer. It was right after President Kennedy has been elected. MR. BUCKLEY: You were prosecutor or defense? MR. SANDERS: No, I was defense lawyer. MR PUGLIA: Or the defendant? [laughter] MR. SANDERS: [laughing] No, I wasn't that young. Kennedy had just been elected and Kennedy carried South Carolina overwhelmingly. And two fellows from New York reached the wholly unwarranted conclusion that South Carolina wasn't very different from New York any more. And they took a trip and stopped in South Carolina on the way to Miami, and they were discovered to have one small marijuana cigarette in their hotel room. And I pied those two fellows guilty before a judge who later became chief justice of South Carolina, and we didn't even have a law about marijuana. We called it hemp, and it was on a laundry list of other things, including heroin and morphine and cocaine and so forth. And he sentenced those two fellows, to their surprise, to 18 months on the chain gang. MR. BUCKLEY: Wow. MR. SANDERS: And he said to me after the sentence, almost apologetically, he said, "I know that was a tough sentence, Alex, I hated to do it to you, but we've got to stamp that stuff out. This will be the end of it in South Carolina. They can take it back to New York." [laughter] Well, today marijuana is more common in South Carolina than butterbeans and rice. [laughter] It had nothing really at all to do with the way we treated it locally at best. 11

13 " ' Board of Trustees of the Leland Stanford Jr. University. MR. BUCKLEY: Yes, if you're going in that direction, you may as well go to Singapore and do it right. MR. TOUSSAINT: Are you using marijuana as a generic term for the use of drugs, because-- MR. BUCKLEY: No, I am trying not to. I'm trying to take marijuana, which is-- MR. TOUSSAINT: Separately. MR. BUCKLEY: --used so much more than any other-- Yes. The soft and the hard drugs. MR. TOUSSAINT: Okay. MR. BUCKLEY: In any event, I think that's a wonderful illustration, the notion that severity is going to solve the problem, and we will be talking at our next session, to which I look forward, on the question of sentencing. Thank you very much, Honorable Judges. [applause] 12