08/12/08 - Arthur Burnett

American Bar Association panel on drugs featuring Judge Arthur Burnett of NAADPC, Jay Rorty of ACLU and Judge Lynn Sharard

Century of Lies
Tuesday, August 12, 2008
Arthur Burnett
Download: Audio icon COL_081208.mp3


Century of Lies, August 12, 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: Hello, my friends. Welcome to this edition of Century of Lies. Today we’re going to listen to a recent drug policy panel that was part of a conference held by the American Bar Association. The first voice you hear is Judge Arthur Burnett who head up the National African-American Drug Policy Coalition. He’s thanking former Drug Czar Lee Brown for his presentation which was part of last week’s programming.

Judge Burnett: Thank you, Mayor Brown. I just want to pick up on two points. One, he talks about prevention, education -- you know, one time in this country smoking cigarettes was a standard traditional thing. And some forty-five, fifty years ago we started a campaign of real education of the health consequences of the use of tobacco and there’s been a tremendous reduction. Wouldn’t it be wonderful if we could start an education program at the third and fourth grade that would have that kind of consequence like we’ve had with tobacco, to teach youngsters the physiological, biological and medical consequences of drug use so that they would decide they would not want to harm their bodies by becoming involved in drug abuse and drug usage? Second, we heard about only one-in-ten people who have drug problems are really getting the drug treatment they need and the need for more funding. How can we change our policies rather than be the policeman for the world and throw away money or invest money in Iraq and Afghanistan and eradicating poppy fields when nine out of ten people go without any treatment at all? What if nine out of every ten people went without treatment for cancer or other physical ills? Those seem to be two of our big challenges.

But we also have a challenge of respecting in this country the constitutional rights, the civil rights of individuals. And to address that we have Jay Rorty who is Deputy Director of the Drug Reform Effort for the American Civil Liberties Union. Because many of the police tactics, use of informants, other law enforcement tactics have also compromised and destroyed the civil rights of African-Americans and other minorities in this country. Jay, will you come forward and present your ideas in that area as well as what reforms you see are essential at this point?


Jay Rorty: Thank you, Judge Burnett. Thank you for the opportunity to address the NBA today. It’s, as Mr. Brown indicated, I think that we all are aware that we are facing a set of failed policies, a policy of relying on incarceration to solve a public health problem. And so when asked what direction should we take, we must turn away from that failed policy of reliance on incarceration and trying to use criminal justice solutions to solve what is truly a public health problem. That’s a big task and that’s something that the next 5, 10 or 15 years may not see. So what I’ll address today are the incremental steps that I think are achievable within the next few years and through the coming administration, whether it be Senator Obama or Senator McCain. Let me first speak to the nature of that failed drug policy, we know it experientially, we know it as a country because the lack of, of resources we’ve lost pursuing this failed policy. We know it’s a bad policy because it propagates racial injustice throughout the country through the selective enforcement of drug laws. We know it’s a bad policy because it fails to address the health problems of millions of Americans. We know it’s a failed policy because it has resulted in the wide spread violation of constitutional rights under the rubric of the drug war. In an effort to address drug problems what we’ve actually done is to erode the constitution. And to balance that, even if any of those things were not true, we know it’s a bad policy because it has failed us completely: it doesn’t work. We have wasted money for twenty years incarcerating people with no return. The is no demonstrable link between increased rates of incarceration, mandatory minimum sentences or guideline schemes, and an increase in public safety. In fact, quite the opposite. So where should we concentrate our efforts beyond that broad goal of moving towards a public health agenda?

First, the ACLU has created a team within the ACLU’s Drug Law Reform Project that would focus on drug sentencing. Drug sentencing, to me as a federal public defender, I was a federal public defender for eleven years before coming to the ACLU, is the most obvious impact of the war on drugs, and particularly on communities of color because it literally takes our young men and women away from their communities and destroys those communities, harms families and incarcerates people to no purpose. So we have to address the sentencing issue. It is the primary problem. How should we do that? What is the problem? Well, the history of drug sentencing in the last twenty-five years is in itself a failed policy. The history of those twenty-five years represents an erosion of judicial discretion in sentencing. By the imposition of mandatory minimums and sentencing guideline schemes judges have lost their ability to evaluate the true harm of an offense and the true harm of a drug and to evaluate the person before them, the offender they’re sentencing, and to craft an individualized and appropriate sentence for each person they see. We need to restore that judicial discretion but not just with the exercise of discretion, also by a change in laws: by repealing the mandatory minimums and by establishing guidelines which actually address the real harm of drugs, not an inflated harm caused by the hysteria like that which surrounded crack cocaine, methamphetamine, and MDMA. I know my colleagues on the panel will speak about the crack/powder issue so I won’t go into that in great detail but that is the primary example of a failed sentencing scheme that is now changing. Congress, the United States Sentencing Commission and many states have recognized that the disparity between crack and powder cocaine has no basis in science and works a terrible injustice on communities of color by disproportionately incarcerating African-Americans. We must undo that harm at every level through legislation, through statutory changes both at the state and federal level, and through advocacy in our courts.

Beyond sentencing we have to address law enforcement practices which support this failed policy. Judge Burnett refers to the use of informants. The ACLU Drug Law Reform Project has a campaign called ‘Unnecessary Evil’ which focuses on the harms done by law enforcement’s inappropriate use of informants. Informants may be an appropriate law enforcement tool in some circumstances but increasingly they result in wrongful convictions of innocent persons, striking fear into communities of color by setting people against each other within a community by threatening one person with the imposition of a mandatory minimum sentence unless they provide information about their brother/friend/neighbor. We need to undo that practice and refocus law enforcement priorities where they ought to be: away from policy which divides communities and results in unjust convictions and towards the public health based approach I’ve been discussing. The ACLU has drafted federal informant reform legislation which we hope to introduce before Congress this coming year. The focus of that legislation is requiring corroboration before any person can be convicted on the word of an informant. To establish reliability hearings where judges would have the opportunity to evaluate the informant before they’re allowed to testify in a drug trial. And also data collection to learn how law enforcement uses, pays and rewards informants. At the moment, all federal law enforcement agencies either do not keep or will not disclose any such data. We’ll be asking everyone’s support for that federal legislation in the coming years and advocating for that same legislation at the state level throughout the country in the coming years.

The next area where significant reform is needed and possible in the very short term is the area of marijuana. Although marijuana is commonly regarded as a white drug, or a drug which is primarily consumed by the white population, in fact the vast majority of people who are convicted and sentenced for marijuana offenses are people of color. That does not reflect actual numbers of use of marijuana or sales of marijuana but it does reflect a disproportionate incarceration rate which parallels that for heroin, cocaine and methamphetamine. So marijuana should be the concern of all drug policy advocates and of African-Americans concerned about drug policy. The first thing we hope for from a new administration is the recognition that, because thirteen states have passed medical marijuana laws the federal government should stop enforcing medical marijuana laws, stop raiding medical marijuana growers, providers and patients in those thirteen states. Those thirteen states are important laboratories to determine the potential reforms which could spread throughout the country. If these medical marijuana states are allowed to succeed by the federal government leaving them alone and letting them succeed it could lay the basis for substantial change towards a public health direction, not only in marijuana but for other drugs as well.

The last area where a widespread reform is needed -- of course, there are many areas, I am just describing four of the areas where the ACLU is active and where the Drug Law Reform Project is presently litigating or working on legislation -- is selective enforcement. Selective enforcement is very difficult to deal with as a statutory scheme, whether federally or through the states. It’s hard to legislate teaching fairness, to legislate fairness into law enforcement communities so remedying the harms of selective enforcement are often achieved through litigation. Selective enforcement is a particularly difficult problem to untangle. It is no news to any number of any African-American community that law enforcement officers selectively enforce drug laws, whether through racial profiling, traffic stops or other, many reasons. It’s a widespread practice throughout the United States, which anecdotally people of color know between their conversations with each other, experientially and you hear about everywhere throughout the country. It’s much harder to get other people to understand how that practice works and how to put a stop to it. Equally difficult to address in selective enforcement issues is the argument of people on the prohibition and prohibitionist movement and in law enforcement. When we point to disproportionate rates of arrest, conviction and incarceration among people of color, they’re first answer is ‘Well, that population simply commits more crimes or uses more drugs.’ That is simply false. And we have begun an effort to document that fact in a sociologically statistically significant manner and to use that research in our litigation. Let me give you one example. In Seattle, Washington the ACLU’s Drug Law Reform Project became involved in criminal litigation regarding the police department’s enforcement of crack cocaine laws in the downtown area. We had to prove, we had to set out to prove that in fact African-Americans used and sold crack cocaine in no greater numbers than their white counterparts yet the police were enforcing those same laws in extraordinarily disproportionate numbers, you were 35 times more likely to be arrested and, I believe, 100 times more likely to be convicted in Seattle of a crack cocaine offense if you were an African-American. Dr. Katherine Beckett at the University of Washington conducted a survey of open air drug markets and was able to demonstrate in a just-released report that African-Americans use and sell crack cocaine in equal or lesser numbers to their white counterparts and law enforcement knows this, knows the areas where their white counterparts are using and selling crack cocaine, yet selectively decide to enforce those drug laws in particular communities and against particular people. That evidence caused the King County’s District Attorney’s Office to dismiss criminal charges against our client before the court could hold a hearing at which the court could have, and legally would have, determined that there had been a constitutional violation of this and other defendants’ rights. The ACLU will be bringing similar litigation throughout the country and developing a similar statistical body of evidence to refute this terrible claim which supports so much selective enforcement.

So those are four directed areas. That’s where the ACLU’s Drug Law Reform Project will be working, among many others. I look forward to questions and conversation about those areas or any other areas of the ACLU’s work.

Thank you very much.


Dean Becker: You are listening to the Century of Lies program on the Drug Truth Network and Pacifica Radio. The voice you just heard was that of Jay Rorty of the ACLU and now we hear a continuation from Judge Arthur Burnett.

Judge Burnett: I just want to add to the litany of problems that Jay has just mentioned. As a judge setting on a court in the District of Columbia I handled many drug cases and frequently. when search warrants were executed a guy could’ve walked into the place being searched two minutes before the police got there and they arrest him along with the sellers and other who occupied the premises. And you had four or five people before your connection with a drug bust on a search warrant. And the government would insist that all five defendants plead guilty even though one of the individuals had just walked in and there was no evidence that the person was even a participant but merely present in the particular occasion of the execution of the search warrant. There’s a practice called ‘wired pleas’ and unless all defendants plead, the government will seek none and they will go forward in trial on mandatory minimums offenses for which the defendants had been indicted but then they face ten or fifteen or twenty years in prison. So the mandatory sentencing provisions have allowed the prosecutor to have a weapon to club people into involuntary guilty pleas, sometimes to discretionary sentences, when they weren’t even in fact guilty. They were just innocent pawns or victims in the wrong place at the wrong time. I’ve had people stand before me wanting to enter a guilty plea where I almost would say, feel like I had the proof to take that guilty plea, and they would beg me to take the plea ‘cause if they didn’t take the plea I could put them on probation but they still get a criminal conviction. They faced the possibility of ten or fifteen or twenty years in prison.

Second instance was those instances involving alleged coercion. I had many cases before me where a young 18 or 19-year-old black man living in the community were in fact forced into a gang, jumped and beaten and robbed and said the only way you’re going to stop being beaten up and hassled in the community if you’re going to live here is to become part of our gang. I’ve even had them testify before me that first time I smoked crack it was in a reefer, the guy was holding a gun on me to make sure I smoked it so that I wouldn’t become a snitch for the police. That I wasn’t the police. And so I got hooked on drugs at the end of a gunpoint. My involvement in drugs -- I didn’t want to get involved but they made me just to get by, just to continue to live where I live. Seeing how mandatory sentencing laws didn’t take those coercions or duress situations into my -- that’s apart from women and the women’s problem of domestic violence and their involvement in drugs. To talk further about the women’s problem and domestic violence and drug courts generally -- where the rubber hits the road, where judges have to deal with defendants who are charged by prosecutors sometimes using these tactics. I call to the platform at this point my colleague Judge Lynn Sharard who has been on this journey with me since 2003. She was one of the initial cofounders, you might say, of the National African-American Drug Policy Coalition, part of the Health Care Task Force and the Criminal Justice Reform Task Force the NBA put together in 2003 that led to the development of the National African-American Drug Policy Coalition and we’re glad you could come today.



Judge Sharard: Thank you very much, Judge. Thank you very much, ladies and gentlemen, for being here this afternoon. This is a subject matter that’s particularly sensitive to me and to most members of the court. I feel that the court has been the beneficiary of the failed drug policies in this nation. In addition to being the beneficiary of these failed policies we’ve also been the recipients of its rewards. As you know, the prison is now an industry and all of the ancillary services that are provided through probation, parole and other services has become an industry. An industry that continues to grow as we continue to warehouse and be a repository for those members of society that we remove from their everyday lives. And let’s face it, those folks are our children, our brothers, our sisters, our neighbors, our parents. They are citizens like you and I of these Americas. I am also a firm believer that the court system is not the appropriate place for this war. We ought not to be in this business. The courts, the legal arena, is in this business by default. We’re here because the appropriate parties have never stepped up to the plate to assume their rightful responsibilities. I believe substance abuse should be a health care crisis and not a criminal justice crisis. Yes, many of the results are by choice, choices that we made. We also make choices to eat too much and become an obese society. We don’t lock up folks for being fat. We also develop a number of illnesses that result from our lifestyle choices. Diabetes is one that comes to mind, right away. But then we treat diabetes, we don’t lock away those people away from the remainder of society. I do not believe the courts are the appropriate vehicle for this struggle. But unfortunately because the courts carry the big stick and has been the beneficiary of these results we’re in this business and we’re there by default.

So what are some of the strategies that the courts have developed to deal with these dilemmas? I am a drug court judge. I currently operate four drug courts in Huntsville, Alabama. We have a drug court for criminal felony offenders, those people got charged with crimes and as a result of their crime they’re facing the state penitentiary. And let me assure you that everything you ever heard about the Alabama prison system is probably true. I have visited a number of the prisons and it’s certainly not an inviting place or somewhere you would want to return. I also operate a drug court for juveniles, persons twelve to seventeen years of age. Yes, I have people younger than twelve in my caseload that have been identified as being substance users but perhaps have not graduated to substance abusers yet we have limited it to an age of twelve to seventeen. We also operate a dependancy court. The dependancy court is for parents of children at risk for abuse or neglect as a result of their parents’ drug use. In all of the courts we operate we include that legal drug, alcohol. Alcohol does not serve the purpose of any other persons that are in our drug court and interferes with the treatment -- they aren’t treatment courts. In order to be in drug court you must need treatment. At every session I tell all of the participants that treatment is the horse that pulls our wagon. With regarding treatment, you would not be in drug court. And, of course, if you’re not in drug court you’re probably going to be in jail. Needless to say, they are more cooperative than the general population.

In our felony drug court we have over 300 participants. We do not limit it to those persons charged with an actual drug violation. Most of the people are charged with theft crimes because they steal to support their habits. In my juvenile drug court we anticipate in our adult drug court, in our adult criminal arena, our district attorney states that almost eighty percent of the crimes involve drugs in some way. In our juvenile drug court, in addition to treating their substance abuse we also have a smoking cessation program. We have a smoking cessation program because the evidence will show that those children that smoke cigarettes are more likely to graduate to alcohol and more likely to graduate to other drugs. The drug of choice in my juvenile population is marijuana. The drug of choice in my adult population is cocaine. There’s a rapid growing population of methamphetamines in Alabama. We have a number of rural communities where folks are blowing up themselves making their amphetamine. It is the most rapidly growing population. In our dependancy court, it is most likely to be cocaine, especially crack cocaine. For those persons in our dependancy court they run the risk of losing custody of their children.

To give you an example, I have a young woman in my case load, twenty-seven-years-old, who is currently pregnant with her eighth child. Seven fathers, eight children. You could track the progression of her drug use by looking at the conditions of her children. Her first two children, absolutely beautiful, on target for all their developmental milestones. The next two are slightly slow but they, with proper intervention, will be very successful in their adult life. Then there were two where her drug use had graduated, they were low birth weight babies that came prematurely and they were severely developmentally delayed. Child number seven struggled for his life. He has cerebral palsy, he will cost the State of Alabama hundreds of thousands of dollars for his care throughout his lifetime because he will require a lifetime of care. Baby number eight is not here yet. We’re very hopeful that because the court intervened -- number one, she had prenatal care, number two, we were able to deal with her addiction and hopefully this child will not be as damaged as some of the other children. By the way, child number five was a fetal alcohol syndrome child. So as you can see the whole litany has come along. Her mother -- I meant to tell you this, she was twenty-eight-years-old -- her mother is only forty-five-years-old. So we’re looking at three generations, well, four generations and the matriarch is not yet fifty. So we’re looking at a condition that it is imperative that we get involved in and help.

I would prefer if this would be a health care crisis. The Chief Justice of the Alabama Supreme Court has mandated that all sixty-seven counties in Alabama will have a drug court before the end of this calendar year. And we’re on target to meet that goal. That goal will address the needs of those people who are locked into the criminal justice system. It will not meet the needs of those citizens that we can just go in and demand treatment or ask for treatment and receive treatment for those citizens that cannot afford the very expensive treatment. But hopefully we will get there. I would like for this next administration to focus on the scientific development of treatment resources. Let’s face it, folks. We’ve put men on the moon. We can clone you, we could develop a mini-me of any of you out there. We have the scientific expertise, if directed and if the dollars are put in the appropriate place. And we ought to be able to develop appropriate treatment avenues for every citizen for whatever may ail them. If the court is to continue to function in this role, and let’s face it, the court is the branch of the government that receives the least amount of funding. So if we’re going to leave it there, we need to fund it appropriately that the court system can address these needs. And let’s train our judges and our lawyers to address these issues. Judges and lawyers are not trained to make medical or scientific decisions. We’re place in this role, in my opinion, by default, not because we want to be but because we are the beneficiaries and must step up to the plate for our citizens require that we do so.

Thank you.


Dean Becker: Yes. We must step up to the plate. We must become full citizens of this nation. We must speak for truth, justice, logic, common sense and for reality itself. And as always, I remind you there is no truth, justice, logic, scientific fact, no medical data. In fact, no reason for this drug war to exist. We’ve been duped. The drug lords must surely run both sides of this equation. Please do your part to help end this madness and visit our website which is 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