Many judges favor revamp of drug laws

Linn Washington
Tribune Correspondent
Linn Washington is an award-winning journalist and professor of journalism at Temple University.

(Camden N.J. (1/3/03)) -U.S. District Court Judge Joseph E. Irenas revealed a startling fact in his Camden courtroom on New Year's Eve that most champions of America's War on Drugs want to keep secret: many federal judges favor a drastic overhaul of the nation's ineffective and often discriminatory anti-drug laws.   

During a hearing Tuesday on a drug law related case, Irenas stated he was surprised to discover the number of conservative federal judges opposed to current drug laws.   

"I attended a judicial conference out West a few years ago and most of the judges there were wearing cowboy hats, cowboy boots and string ties.  Most of these judges were appointed by President Reagan and were very conservative," Irenas noted, "But to a person, everyone said drug laws need to be changed."   

While making comments questioning the current drug laws, Irenas noted that when President Bush appointed him to the federal bench in 1992 there were 32,000 people in federal prisons.   
"Today, there are 132,000 in federal prisons and 60% of this increase is for drug convictions. African-Americans comprise a majority of the drug offenders in federal prisons," Irenas stated.   

"America has more persons in prison today than South Africa at the height of apartheid and Russia during the height of communism under Stalin," Irenas said, also listing a number of political leaders who advocate changes in drug laws.   
Criticism of drug laws by federal judges is well known in legal circles and widely posted online yet is rarely publicized on network television and in mainstream media sources accessed by the majority of the American public.   

A number of federal judges, liberals and conservatives, have resigned from their lifetime appointments instead of imposing long mandatory sentences required by drug laws.  Many judges feel mandatory-minimum drug laws are unfair because they generally strip jurists of their authority to craft sentences to match a defendant's actual criminal culpability.

Laws mandate judges to sentence drug users and low-level dealers to long sentences while freeing major drug dealers who cut deals with prosecutors.  Judges have criticized current drug laws as expensive, largely ineffective, and damaging to American civil liberties.  

"These unwise sentencing policies which put men and women into prisons for years, not only ruin lives of prisoners and often their family members, but also drains the American taxpayers of funds which can be measured in the billions of dollars," said Chief Judge of the federal 8th Circuit Court of Appeals Myron Bright.   

However, 8th Circuit Judge Diana Murphy, chair of the U.S. Sentencing Commission, claims that the judges critical of mandatory laws are mainly "senior judges who have never reconciled themselves to change." (Senior judges are retired judges who still hear cases.)   

Federal Judge Joseph Irenas made his comments about drug laws during a hearing on a matter involving Robert Edward Forchion, the self-styled “New Jersey Weedman.”  Forchion is suing New Jersey authorities, charging them with violating his First Amendment rights when they removed him from a special parole program in August 2002 and returned him to prison.   
New Jersey parole authorities claim Forchion violated terms of his release largely by peacefully protesting against a judge depriving him of visiting his daughter due to Forchion's advocacy for reforming marijuana laws and for making an anti-marijuana law commercial that never aired.   

Forchion contends that the written terms of his parole did not specifically prohibit his marijuana law reform advocacy.  Judge Irenas stated that Forchion has complied with the terms of his parole requiring employment and he has repeatedly passed his twice-weekly urine tests showing he is not using marijuana.   

"The truth is [Forchion] is not a menace to society. He is a right to participate in First Amendment dialogue," Irenas said, noting that evidence indicates the "New Jersey Department of Corrections is wizzed-off because of his advocacy.”
Irenas scheduled a Jan. 21 "show cause" hearing where New Jersey authorities must present evidence to show they did not remove Forchion from parole primarily for his constitutionally protected drug law reform advocacy.   This federal court hearing is four days after Forchion will find out whether he will be readmitted to the Intensive Supervised Parole program when he appears before a three-judge ISP panel.   This Jan. 17 ISP panel hearing date is a continuation of a twice delayed hearing initially scheduled for Sept 2002.   

Forchion remains incarcerated at the Burlington County jail on under the disputed parole violation.   Forchion plead guilty in Sept 2000 for his involvement in a 1997 scheme to help his brother pick up 40 pounds of marijuana shipped to New Jersey from Arizona. He thought the guilty plea included a deal for immediate ISP release but prosecutors contended no deal existed and Forchion served 18-months in prison before receiving ISP parole.   

Renowned legal scholar Richard Posner, the chief Judge of the 7th Circuit Appeals Court, has voiced his support for the legalization of marijuana.

"Prison terms in America have become appallingly long," Judge Posner said, "especially for conduct that, arguably should not be criminal at all."

Linn Washington is an award-winning journalist and professor of journalism at Temple University.