07/29/08 - Arthur Burnett

Judge Arthur Burnett, director of National African American Drug Policy Coalition & Jay Rorty, Deputy Director of ACLU Drug Law Reform Project

Century of Lies
Tuesday, July 29, 2008
Arthur Burnett
Download: Audio icon COL_072908.mp3


Century of Lies, July 29, 2008

The failure of Drug War is glaringly obvious to judges, cops, wardens, prosecutors and millions more now calling for decriminalization, legalization, the end of prohibition. Let us investigate the Century of Lies.

Dean Becker: Welcome to this edition of Century of Lies. I’m so glad you’re with us. You know, we had invited Mr. Jay Rorty, Deputy Director of Drug Law Reform Project of the ACLU and, lo-and-behold, he shows up with our good friend from past shows, the honorable Arthur L. Burnett, and they are here in town to attend a conference, participate in a panel of the American Bar Association, and with that I want to welcome them to the studio. I want to welcome them to the city of Houston which, my gosh, needs some help in regards to our policy in this drug war. We’re leading the world in our incarceration rate, primarily for minor amounts of drugs. And with that I want to go ahead and kick this off and welcome Judge Arthur Burnett, sir.

Judge Burnett: Good morning. It’s my privilege to be here. And I’m the National Executive Director of the National African-American Drug Policy Coalition, Incorporated, for America which was started at the initiative of the National Bar Association which is holding its convention. And we are having a panel discussion this afternoon from 2:30 to 4:30 on what the next administration in Washington, over the next four years, should do to begin to solve some of the drug problems we have in America today.

Dean Becker: And, as I said earlier, we have Mr. Jay Rorty of the ACLU and I have been remiss over the years in not inviting much, if any, members of the ACLU to come on this show, but, Jay, welcome. Tell us about your involvement in this conference.

Jay Rorty: Thank you. I’m looking forward to presenting to the National Bar Association this afternoon and to engaging in this important debate. Let me tell you a little bit about the ACLU and its effort at drug law reform. I’m the Deputy Director, as you said, of the ACLU National Drug Law Reform Project. It’s a project of the national ACLU as opposed to one of the many state and local affiliates. Our mission is to end punitive laws that cause widespread violations of constitutional rights and result in unprecedented levels of incarceration. We do that through nationwide litigation, working towards reform legislation and also conducting public education campaigns to make the public aware of some of the harms that have resulted from drug prohibition and some of the benefits of turning towards a more public health based policy and approach to drug law.

Dean Becker: Now, you heard my comment that Houston leads the world in its incarceration rate primarily for minor amounts of drugs. In fact, a lot of times for microscopic amounts of drugs; the user didn’t even know they had any with them, empty bag, empty pipe or so forth. Was it Houston and this situation that attracted this major event here?

Judge Burnett: No, I think it’s not Houston but it’s the problem in our urban cities across the country and usually the convention of the national bar is held around the country, to different sections of the country, but the problems here in Houston are basically no different than they are in Chicago, in Washington, D.C., Baltimore -- we are told that sixty percent of the drug consumption for opium is in America and it’s decimated African-American communities. The National Bar Association in 2003 felt that this was probably the major civil rights issue facing African-American communities today and decided to organize a coalition of all the black professional groups in America and selected me to be the executive director. And our first principle was to treat drug addiction as a medical problem, disease, and when a person possesses a little bit of drugs because they have a craving, a compulsion to use drugs, they should not be subject to criminal penalties but should be put into drug treatment. And we expanded that to include even when people sell a little drugs just to get their own supply it should be treated like mental illness and they should not be subject to criminal convictions.

Dean Becker: Well, exactly. Now let’s talk about this panel that’s happening today, reforms needed in the drug laws of America, Change is Essential in the Criminal and Juvenile Justice System: Challenges for a New Administration. We had a brief discussion out in the conference room before the show and I was talking about I saw an article in Rolling Stone that Obama indicated that he would make some fundamental changes: less arrests, more second chances, less incarceration. Jay, why don’t you address that point for us?

Jay Rorty: Well, certainly I think one of the things that we would hope for from either new administration, whether Senator McCain or Senator Obama, would be a turn-away from federal drug law enforcement, particularly in the are of medical marijuana. There are now thirteen states which have medical marijuana laws and one of the problems with those laws being efficient and effective is that the Drug Enforcement Administration under the Bush Administration has interfered with the states’ ability to administer those medical marijuana programs by conducting raids and beginning federal prosecutions. Now, it’s accurate that marijuana remains illegal under federal law so there’s a tension between state and federal law. Certainly I would hope that either Senator Obama or Senator McCain would recognize that we have a great opportunity as a country to have those states which have enacted medical marijuana laws serve as laboratories for the success of this turn in drug policy and to instruct the Attorney General to take a policy of non-interference with those states which have enacted medical marijuana laws.

Judge Burnett: And your national, National African-American Drug Policy Coalition would support that approach with the idea of a federal statute which would, in fact, provide for abstention of federal prosecutions in those states where the states have decided to experiment with medical marijuana with the idea that we’ll have sufficient regulatory controls, much like the medical profession, and get the National Institute on Drug Abuse and the federal Food and Drug Administration to come up with the medical compound that when doctors prescribe medical marijuana for cancer treatment or pain medication it is as legal as taking opium or a morphine derivative now for certain medications or hospitalization and surgeries in hospitals. So that, in fact, we would have a controlled regulatory system, try to close off the bootlegging or black marketing of marijuana and let’s see how it works.

Dean Becker: There is a company, a British company, GW Pharmaceuticals I believe it is, that has prepared an extract of the the marijuana, combining the cannabinoids and the THC in certain ratios and they find that depending on the ratio it might be helpful for one disease or another. I think that would be a step in the right direction, Judge Burnett, but also, as I understand it, there are some several dozens if not hundreds of compounds and that some are better for one malady than another -- some are better for sleep, some are better for eating, some are better for relief of pain -- and I’m hoping that we can keep the door open, that we can continue to explore the possibilities. It has been the policy of the U.S. government to pretty much deny these studies, to deny people access to marijuana and, kind of, stymied the effort to make that leap possible.

Jay Rorty: Not only to deny people access to marijuana but to deny scientists who are doing this work the opportunity to answer this question regarding the utility of marijuana as a medicine and a tool for health. The ACLU Drug Law Reform Project has been litigating against the federal drug administration regarding the case of Dr. Lyle Craker who had sought access to marijuana seeds for his research and, because of this debate surrounding the medical properties of marijuana, he’s been denied the opportunity to conduct research. So, certainly, that’s something we’d hope for from a new administration, again, whether Senator Obama or Senator McCain, is an understanding that that’s an appropriate area of scientific research; to really determine the health utility of this substance and not to take a simply moral and prohibitionist approach but treat it as you would any other are of scientific and medical research.

Judge Burnett: And our organization is one hundred percent in accord with that approach. Rather than acting on morality principles, acting on political sound bites, we want them to get the scientific facts and let’s investigate scientific research and see what really works and solve the problem rather than act on suppositions or assumptions or stereotyping.

Dean Becker: Now, I don’t have the source with me, but there was a report released in just the last couple of days that indicated that there’s an increase in deaths from use of prescription drugs, that people take what the doctor recommends and then they have a drink or two or three of alcohol and that combination winds up killing more and more people. They were talking about, I think, it was 250,000 dead from the misuse, if you will, of these prescription drugs and yet the ONDCP spend, has over the years spent hundreds of millions of dollars primarily trying to frighten parents into believing that marijuana is so dangerous that it shouldn’t even be called marijuana. I personally think that those millions should be spent on educating people to the true dangers of combining these drugs and alcohol.

Judge Burnett: One of the things that our organization is exploring is an approach of citation arrests for marijuana offenses and very first offense, the person is subject to either pre-trial diversion program where there’s treatment if treatment is needed and counseling or there’s an education program. A person completes it satisfactorily -- the charge is dismissed. And therefore for the first offense they do not get a criminal record for it. In addition, we think we ought to initiate a massive education program, much like we had with tobacco, and start that with kids at the third and fourth grade level which is not just a scare straight approach, a DARE approach, but scientifically, medically saying, telling children about the impact of use of various drugs, not just marijuana, but all drugs and let them make the decision whether they want to inhibit their longevity or the health of their bodies. And we think that would probably decrease drug use more than what we have been doing in the past.

Jay Rorty: And there is, on the November ballot in the State of Massachusetts, or the Commonwealth of Massachusetts, there’s an initiative very similar to what Judge Burnett just described, which would reduce the potential penalty for under an ounce of marijuana to no greater than a hundred dollar fine and operate on a citation system, removing those small time marijuana possessors from the criminal justice system entirely. And we’d certainly like to see that kind of reform take place not just in Massachusetts but across the country in other states. We certainly hope that the initiative will pass in Massachusetts and will be implemented in such a way that allows it to be effective. This, again, engages the question of the federal government’s involvement. Assuming passage of the Massachusetts initiative we would hope that the next presidential administration will see Massachusetts as an opportunity to test the effectiveness of such initiatives.

Dean Becker: All right. Now, once again, you are listening to the Century of Lies Show. We have in studio with us Mr. Jay Rorty, Deputy Director, Drug Law Reform Project, that’s who was just speaking. And we also have Judge Arthur Burnett of the Nation African-American Drug Policy Coalition and I want to thank both of you gentlemen for being here. Now, let’s talk about this panel that’s going to happen today, perhaps a listing of the participants and what we might expect to hear.

Judge Burnett: Well, we will have your former mayor, Lee Brown, who has been a former chief-of-police, been a former Drug Czar in the White House and was the chair of a blue ribbon policy commission of the National African-American Drug Policy Coalition to eliminate racial and ethnic disparities in enforcing the laws as to drugs and crimes in America. And one of the things it dealt with was the crack cocaine severe sentences versus powder cocaine and to reduce crack cocaine to the level of powder cocaine. We’re also concerned about the excessively long sentences for drug offenses. Even if you were to continue drug offenses as crimes we don’t need twenty or thirty year sentences, which is longer than many people get in state systems for manslaughter or for even rape. Sentences of three or four years, when people deserve sentences, should be sufficient. We’re for elimination of mandatory sentences and, in fact, restoring discretion to judges because it’s been our experience that many women especially who have been victims of domestic violence have been pulled into conspiracies for drug offenses and they’re given the burden of being responsible for all the drugs and get long sentences when they were merely involved on the fringes. They are aiders and abetters, sometimes they didn’t even want to be involved, but they were living with a boyfriend involved with drugs and they end up with twenty or thirty years sentences even when they weren’t even drug users like Kimba Smith. We also have situations of young black men who are coerced into drug operations and told that they must smoke a reefer and cocaine to show that they are not police informants. And therefore their first use of drugs is at gunpoint just to survive in the community, to keep from being beaten up. So many of our young black males get involved initially as a result of being victims of crimes themselves and they join the drug gangs just to survive in the neighborhoods they live in.

Dean Becker: You know, I can’t remember the name but there’s a recent situation, a young lady, I believe she got caught with a small amount of drugs and the cops told her that if she would assist them in rounding up some other drug sellers that her charges would be dropped. And yet it became a very tragic situation. Jay, you want to address that?

Jay Rorty: Certainly. I think you’re speaking about the case of Rachel Hoffman which occurred in Tallahassee, Florida in the spring of this year. It certainly is a tragic situation. I can tell you a little bit more about it. Ms. Hoffman was at first convicted of possession of a small amount of marijuana and placed in a drug diversion program. Apparently, she continued to use marijuana and possessed some other drugs. Police served a search warrant to her house. Found marijuana and, I believe, four ecstasy pills. Although their interview with her is not recorded or wasn’t reported at the time, the result of her arrest was that she began to work as an informant for the Tallahassee Police Department, apparently on the threat of going to prison.

What’s extraordinary about the situation is that the Tallahassee Police Department put her in a situation where she was soliciting people with significant criminal histories to purchase large amounts of cocaine and a firearm. Ms. Hoffman, of course, had never had any involvement with firearms or with people with the kind of criminal histories that these individuals had. The police set up a situation where she was to buy these materials from these individuals. They didn’t track or monitor her in a sufficient way. They lost track of her and, terribly, she was killed apparently by these two individuals who are now accused, I believe, of kidnapping and robbery and suspected in Ms. Hoffman’s homicide. This highlights an extraordinary problem that the ACLU believes exists throughout the country regarding the use of informants. Law enforcement relies on informants to an extraordinary degree in drug prosecutions and very often with the kind of tragedy that results in Ms. Hoffman’s case and also situations that result in wrongful convictions because, of course, when people are threatened with lengthy prison terms if they don’t cooperate with law enforcement they’re inclined to make up information or put themselves in dangerous situations. Ms. Hoffman’s case calls for legislative reform both in Florida and nationally. Nationally, the ACLU’s Drug Law Reform Project has drafted federal legislation calling for informant reform, adopting a practice which has been legislated into law in Texas which requires corroboration before a conviction can be obtained based on the word of an informant in a drug case.

So yes, that is a terrible situation and one that highlights a real ongoing problem with law enforcement’s use of informants in narcotics cases.

Judge Burnett: And, as a judge, I had a first degree murder case where the driver of the alleged drive-by car in the shooting incident was the son of a minister who was almost a straight ‘A’ student and there was an informant who said he was the driver of the getaway car. He was locked up at pre-trial detention for about eight or nine months without bond. When the case came before me I said that I would release him on supervision because, deacon of the church and all the church would say this kid was so mild and such a scholar that he wouldn’t even kill a fly. I said unless you polygraph your informant I will release the defendant on third-party custody. Three or four days later the prosecutor came back and dismissed the case against -- the informant failed the polygraph. That’s an example where informants sometime will finger other people and innocent people could remain locked up a year, a year and a half, awaiting trial on charges they had nothing to do with. This kid lost an opportunity for a major scholarship at a major university in Pennsylvania and I don’t know if he ever got his life back on track again.

Had another case in which the informant was down in North Carolina hiding out and the marshals had to find him to bring him back and when he was brought back he more met the description of the killer in a drive-by shooting than the person on charge -- the jury took twenty minutes to acquit the defendant. So as the presiding judge over drug cases involving murder for two years, I saw cases where informants were so unreliable I would not, even as a bench judge, convicted my dog on their testimony.

Jay Rorty: One of the things the informant problem points to is that the problems with fabricated testimony or wrongful convictions would be less likely to exist if we didn’t have draconian sentencing laws with which law enforcement could then threaten people -- unless they become informants they might be subject to a mandatory minimum. Again, if we eliminated mandatory minimum sentences and allowed judges to make individualized determinations of appropriate sentences that threat would be gone and coerced informant testimony would be greatly diminished.

Judge Burnett: As a matter of fact, in one instance I had five murder cases in a row. The jury came back and either acquitted or hung over almost a six-month period where the government’s cases were built on informers which showed how futile the system is.

Dean Becker: Right. And I want to, kind of, throw my two cents in here. It’s been my observation over the years that many times these informants are just trying to save their own hide. There have been situations I’m aware of but I wish I could remember the details, but where an in-house situation where they learned the name and they saw a picture of this gentleman’s relatives and a whole group of people in this county jail were able to have their sentences reduced by saying they knew details about this crime and yet later it was proven that none of them knew anything. And it’s like a safety blanket, if you will, that people just grab onto this in the hopes of reducing their sentence. I mean it’s...

Jay Rorty: That’s particularly true. I think the case you’re describing was in the Los Angeles County Jail and it’s particularly a sensitive issue in jail situations where people who are, of course, facing significant prison time and hope for a benefit should they provide information have access to a lot of information about other inmate’s cases and can very easily parlay that information into a benefit to themselves. Limitations on the use of jail house informants would go a long way towards solving that problem.

Judge Burnett: And, as a judge, I’ve seen many cases where defendants were charged in multiple-defendant conspiracy cases and face mandatory sentencing when they had a coercion or duress defense and they would plead guilty to a lesser offense just to avoid the mandatory sentence and in the course of the plea the facts they tell me, in the course of their plea under oath, would, in fact, should result in acquittal but they don’t want to take a chance because if they go to trial they got to go to trial on all of the charges and they could end up being in prison thirty or forty years. So it coerces pleas for people who merely may have been present; people who may have just walked into an apartment before a search warrant is executed and had nothing to do with the drugs there but because he’s there he is told they’re going to charge him with everything too and unless he cooperates with the government or pleads guilty he’s got -- everybody else has to plead guilty too -- the government has a practice called wired guilty pleas so unless everybody pleads you get carried along -- if we have to try the case we’re not going to allow anybody to plea. So there is a big room for what we call prosecutorial abuse. Indeed, I’ve had many cases where the person the government was trying to coerce a plea from could have been the government’s most material witness in the case.

Dean Becker: Yeah. Once again, you are listening to the Century of Lies Show. That was Judge Arthur Burnett. We also have with us in studio Jay Rorty, Deputy Director of the Drug Law Reform Project at ACLU. Gentlemen, a couple of weeks back I had Brother Robert Muhammad, Nation of Islam, on here and we were talking about the impact of the drug war on the black community, specifically here in the gulag city of Houston. And we were talking about the fact that if these laws were implemented in the same way against the white community that they are implemented against the black community this drug war would have been over long ago. Your thoughts? Either of you?

Judge Burnett: Well, absolutely. Indeed, one of the problems we have seen over the last twenty, twenty-five years is that because of the lack of black males having job opportunities, falling out of school at the ninth grade, dropping out of school, they get involved in the underground economy of drug selling -- the police concentrate themselves in black communities with binoculars, spying, and -- what some people call ‘low hanging fruit.’ So black males are in fact arrested in substantially more numbers than whites in suburban communities. There’s also stories that we’ve been told that frequently white defendants may come into the neighborhood to buy drugs and a police officer will say ‘Don’t come back again. Leave, we saw what you did but if you show up again...’ So there’s disparate treatment. So we have both the problems of concentration of police officers in black communities arresting black who have no jobs, who are engaged in underground activities or illegal activities, plus, in many instances, white police officers may be giving the kid a first-time buy and say ‘We didn’t see anything. Don’t you ever come back in here again.’

Dean Becker: Yeah.

Jay Rorty: The ACLU’s Drug Law Reform Project is involved in litigation in King County, Washington, it’s the city of Seattle, on this very issue. One of the issues that we’re very concerned about is selective enforcement, particularly in urban communities, against African-American and other communities of color. And this implicates a larger debate across the country because very often drug prohibitionist’s response is, well, when confronted with the fact that people of color are arrested, convicted and sentenced at rates which are greatly disproportionate to their representation in the population as a whole, the answer they give is ‘Well, people of color perhaps use drugs or commit more crimes,’ and that explains this. And that’s a fallacy. And this case in King County, that I’ve referred to, demonstrates this fallacy because we were able, perhaps for the first time in the United States, through the research of Dr. Katherine Beckett at the University of Washington, to demonstrate that the white population in Seattle uses and sells drugs at equal rates to the communities of color yet the Seattle Police Department is enforcing drug laws, and particularly crack cocaine laws, in the areas of downtown Seattle disproportionately against African-Americans. And what we hope to see is a trend towards that kind of research which really looks at the question of who is using drugs, who is selling drugs, and therefore demonstrating that the disproportionate rates of incarceration are not due to different rates of use or different rates of sale but to disproportionate law enforcement. Which has to change.

Judge Burnett: As a matter of fact, on July 10, Senator Biden introduced a bill in the Senate that will require the Attorney General of the United States to select ten federal district U.S. Attorneys offices to maintain data on exactly why they prosecute whites and blacks and hispanics as to different charges and where there are differences -- to justify them. We are recommending an amendment be made to also pick out ten states with State Prosecutor’s offices to show total neutrality in the prosecutions decision through this data collection process. Steve Cohen, from Memphis, Tennessee, has introduced a bill in the House to do that and our coalition is strongly promoting the enactment of that legislation, getting sponsors this fall and hopefully be in a position to move that legislation forward in early 2009.

Dean Becker: We’ve got less than two minutes and I want to give each of you a thirty second window, if you will, to kind of give a pep talk to my audience. I mean, we all see the failure of this drug war. We all see that it needs changing. They can do something. They can get involved. They can participate in making that change happen. Let’s start with you, Jay Rorty.

Jay Rorty: Well, two suggestions for your listeners. Join the ACLU, donate to the ACLU and become active in your local ACLU chapter. The ACLU has a proud tradition of supporting constitutional rights that need it now more than ever after eight years of the Bush Administration. Another thing your listeners can do is support listener sponsored radio and public radio which is a tremendous source of wonderful and accurate information.

Dean Becker: All right. And Judge Burnett?

Judge Burnett: From the National African-American Drug Policy Coalition, our advice is that every African-American should register to vote. Don’t talk about what should be done and sit at home. And then communicate with your representative in Congress or in the Senate and let them know exactly what your views are with reference to these issues so that our legislators do not act under false assumptions. Let them know how you want these problems dealt with and encourage them to deal with the social problems in America and the ills we have here as opposed to trying to take care of foreign policies and international matters and ignore, say, 35 or 40 percent of the population in this country.

Dean Becker: All right. Thank you, gentleman, so much and as always, my friends, I remind you there is no truth, justice, logic, scientific fact, no medical data, in fact no reason for this drug war to exist. Please do your part to help end this madness.

Visit our website, EndProhibition.Org.

Prohibido istac evilesco.

For the Drug Truth Network this is Dean Becker asking you to examine our policy of Drug Prohibition.

The Century of Lies.

This show produced at the Pacifica studios of KPFT, Houston.

Transcript provided by Gee-Whiz Transcripts. Email: glenncg@zoominternet.net