English law blogger CharonQC interviewed U.S. Senior District Court Judge John Kane of Colorado a couple of days ago. Judge Kane had some interesting things to say about the war on drugs (as well as about civil procedure); I linked to the interview here.
With the permission of CharonQC, I’ve commissioned a transcript of the podcast. I used iDictate to transcribe it, so it’s not court-reporter quality, but it’s usable (what do you want for less than $100?). Here’s the PDF; the text follows:
Transcript of podcast interview by English legal blogger “CharonQC” of Senior U.S. District Court Judge John Kane of Colorado, Wednesday, January 28, 2009.
The speakers have reviewed this transcript only for gross errors. If the precise wording is important, please listen to the original recording online at http://tinyurl.com/CharonQC93.
CharonQC: Today, I am talking to John Kane, a United States senior district judge in Denver, Colorado.
John has very robust views on war on drugs and the antiquated rules of civil procedure and the extent to which judges have stopped adjudicating in courts in order to meet this tsunami of data generated in this information age. We are going to talk about both these issues.
Good afternoon, John.
Judge Kane: Good afternoon.
CharonQC: Thanks very much indeed for taking time out of your day to come on.
Judge Kane: I am delighted.
CharonQC: Before we start on the specifics for my UK and non-American readers, would you be kind enough to state the position of the district courts in the US judicial system?
Judge Kane: Yes, it is rather complicated but I think I can do it succinctly. The United States has a federal system that is the United States government with a very simplified court system that consists of the general trial court which would be the equivalent of your high court. It has a circuit court of appeals and there are 13 of them around the country which handle appeals from the district courts and then there is the supreme court of the United States. In addition there are a few auxiliary type courts, the bankruptcy courts are an adjunct of the district courts and then there are some specialized courts called for example the court of federal claims so that when you are suing the United States government for money, you must appear before the court of appeals. There is also a court of patents and copyrights and an appellate court called the circuit court of the federal circuit which handles appeals from the copyright and patent court.
That is the simple structure of the federal system and then each one of the 50 states has its own system generally, patterned after the United States but sometimes especially in the former original 13 colonies, they have names that would be more familiar to your audience. For example in Pennsylvania, the general trial court is called the court of common pleas. Then in New York for some strange reason known only to New Yorkers, their trial court is called their supreme court and their supreme court is called their court of appeals. In California, the general trial court is called the superior court and then it has the court of appeals and the Supreme Court. Many of the states have specialized courts for probate, juvenile matters, things of that nature but the federal court does not have those. That is a thumbnail sketch of our system.
CharonQC: Thank you. We are going to come to the procedural side of your jurisdiction later but the war on drugs is a very hot issue in Britain and it is obviously even hotter in the United States and yet in the late 90s, in the November coalition, you wrote an article entitled War on Narcotics and Perils of the Justice System and you put some very robust views. If I may just quote, you start your article with these words and I quote, “Nearly everyone is disenchanted to see the United States criminal justice system, which is seen as excessively expensive, conceptually confused, increasingly unfair and pervasively ineffectual.”
Then stated a paragraph or so later, about the war on drugs, I quote, “If there is a key to understanding America’s criminal justice problem, it lies in recognizing that the war on drugs has been lost and never was winnable. In order to feed the war machine, we have sacrificed our courts, prisons and law enforcement. More importantly, we have surrendered many of the freedoms that made us the freest society in history.” These are very robust words.
Judge Kane: Yes, rather articulate if I say so.
CharonQC: I would agree with you John.
Judge Kane: But the additional thing which is not there is that it has also had a significant racist impact on our system. We are imprisoning more people in the United States than the entire European Union does. We imprison more people than any other country in the world with the possible exception of China and I cannot answer that because the Chinese do not release those figures but we are a prison based criminal justice system and we use a concept here called recidivism which relates to the number of people who go through the prison system are released and then commit other crimes and come back again.
Our recidivism rate is about 85% which means that if one was operating a shoe store and sold shoes, every 85 out of every 100 pair would be returned and I think that would be called bankruptcy in any system and that is what, our system is bankrupted and our prison system. Over half of the people in US federal prisons are in for drug related offenses and the fact is that whilst we are engaged in putting all these people in prison, the supply of drugs has increased and the purchase price for drugs has decreased so that it is more readily available now than ever before and I believe that that is a direct result of the attempt to prohibit drugs. It is the same sort of catastrophe that we faced in the 1920s until the 1930s with prohibition of alcohol.
What we did with prohibition of alcohol was to create and subsidize the Cosa Nostra organized crime throughout the United States and what we are doing now is essentially the same thing with gangs that operate and are financed by the importation and sale of illegal drugs.
CharonQC: Let us look at the statistics because in another article, American in a Fix which you wrote a few years ago, you give figures of 430,000 deaths from tobacco which is of course is legal. Approximately 110,000 die from alcohol and you look at 32,000 fatalities a year from prescription drugs and 18,000 homicide victims but you indicate that the total number of deaths caused by marijuana directly is zero.
Judge Kane: That is correct. The other figure that I left out at that time and I am sorry I did but when you write these things, other people call you or comment and I learn more by writing than I do otherwise and one of the things I left out is that more people in the United States die from home accidents such as slipping in the bathtub than they do by homicides. It is an enormous amount. Children die of home accidents at a greater rate than anyone dies from drug related offenses.
CharonQC: But it is a very easy hit for politicians to be tough on drugs. We have got a situation only now in this country where Tony Blair’s government some years ago reduced the classification of cannabis to effect to be class C making it a less serious offense and indeed appears we are not wasting processing such vendors but we are cautioning them and confiscating the drug but our home sectary in her alleged wisdom has now reclassified this, going against the advice of government advisers, going against the advice of many of the medical and other professions, back to class B, back to a cycle of criminalization.
Although bizarrely, she said it is a three strikes and you are out sort of project here. The first time, I think you are going to get a caution and second, you are going to get a on spot fine and this was—the magistrates when I was saying, we have now got a class B offense, a drug that has been treated differently from other class B drugs and the whole thing is a mess. There does not seem to be a consistent policy.
Judge Kane: One should bear in mind as you pointed out that it is very easy to be against drugs. It is very difficult to be against tobacco or alcohol and these are things that politicians can prate on and on about and not meet with much opposition. The interesting thing to me is that the opinion polls the Unites States show that better than 65% of the public thinks that the war on drugs is lost. Yet the politicians persist in this sort of thing. This may sound unduly cynical but I think it is called Hanlon’s Razor that says that no one should ever attribute to malevolence that which is explainable by stupidity and ignorance.
I think that really the question is, is it so craven for politicians to do that but then they invade other countries they have no business invading as well. Then appeal to patriotism to support such nonsense and that is what we do with drugs. We says these are terrible and as a consequence, we are going to make it against the law and then it becomes, for the normal citizen, a question saying do you uphold the law. Of course, we uphold the law but even the stupid ones, we have to do. So that is what happens to the psychology of it.
CharonQC: We have not got a choice there. But basically, you also gave some interesting figures, about the cost of imprisoning drug offenders.
Judge Kane: It is atrocious. It costs I think, I am not sure what the present figures are but it is something in the neighborhood of $30,000.00 a year to house a prisoner in the federal prison system and it is closer to $6,000.00 a year to put that person under some kind of probation. So we are putting in people in our prisons that do not need to be there, who are not violent or dangerous and another consequence is that we are allowing a number of very dangerous people to go about the streets because we are crowded in our prisons with nonviolent offenders.
CharonQC: We have got a similar problem in the United Kingdom with the pressure on prison places.
Judge Kane: I am not saying that we have a monopoly on idiocy.
CharonQC: There are some pretty serious police officers and judges and experts on drug use and doctors who are now saying we really do need to rethink drugs policy. It is not winnable so what can be done about it. It is unusual for a serving judge to write so robustly but what can you do?
Judge Kane: I get so terribly frustrated being on the bench and watching this revolving door of miscreants coming in and out for no real reason at all. We are not protecting our children, our families by this sort of thing and what we are doing is creating a very attractive black market where people are making enormous profits and they do not pay any taxes on them.
One other figure that is a little bit difficult to calculate but it has been done to my satisfaction and that is in the 1800s before heroine and opium were outlawed in the United States, the addiction rate was 1.7. 1.7% of the population became addicted. During the period of regulation before the war on drugs, the number was 1.7 and now, it is still 1.7. All of the money that we pour into this is given with the false representation that somehow we are preventing drug addiction. We are not. What we do prevent is to some extent we provide drug experimentation and occasional use but we are certainly not doing anything about drug addiction. I think it ought to be treated. I think it ought to be treated like tuberculosis or alcoholism.
CharonQC: Yes, we had a situation some years ago where half the British cabinet came out, there was a clause that said that they had tried drugs at university but none of them seemed to enjoy it and had given it up.
Judge Kane: They would say the same thing about sex. It is so silly. If we had a president that said he tried it and did not like it—he said he tried it and did not inhale and I think that is while he was at Oxford. But that is nonsense. Children are going to experiment with all kinds of things. I tell youngsters when I have an occasion to that they should never smoke marijuana because if they smoke marijuana, that can lead them to smoking tobacco and tobacco will kill them. But it is the opposite of the slippery slope argument that is usually made and I do that to illustrate a point with them that there are a lot of things that are dangerous in our society because of the economic influence of the manufacturers are allowed to be legal.
CharonQC: By that I mean, let us say it was made legal or controlled—let us take that in two stages, let us say there was a degree of control that the pharmaceutical companies were licensed to produce these drugs obviously to much higher standards of production and quality and was sold in a controlled way that would reduce criminality as it probably would.
Judge Kane: Well, I know for a fact that you did that in the United Kingdom, in Liverpool and some years back where heroin was being given at the public health facilities to registered addicts and the crime rate plummeted. If there is no reason to go out and pay, $100.00, $400.00 to $600.00 a day to see the habit that you can have supplied to you, there is no reason to go out and rob people and it does work, and it did work in England.
CharonQC: It did work. You are right and it has worked in Portugal as well–based on trials.
Judge Kane: Yes, that is true yes. It is having a similar success is taking place in some of the cities in Switzerland, I think Zurich is one where they have eliminated all kinds of AIDS infections and HIV infections because of dirty needles. They provide the needles and then, the one city, they are providing the heroine so you do not get the deaths from people taking overdoses and you do not get the HIV infections from using dirty needles.
The other thing in this is very, very difficult to measure quantitatively but if these drugs are legal, there is no reason for the local pusher to try and encourage other people to buy and to use them.
Judge Kane: It eliminates the deed to prey upon children. Now, that will not eliminate children taking drugs because they are going to do what their peers do. Children listen to other children especially adolescents, they never listen to their parents so it is not going to stop it but it would certainly reduce it. It would reduce the incentive to provide these drugs.
CharonQC: How are we going to get rid of that revolving though, John?
Judge Kane: Well, I think we eventually will because at least in the United States with the figures we have showing how many people are now convinced at the war on drugs is lost. It will take the politicians a few more decades before they realized that they are being ridiculed by their stand on these issues and at that point, the law will change. What I look for is a form of regulation that is quite similar to the way that we regulate alcohol.
That does not cure alcoholism and we are not going to cure drug abuse but at least, we will sanitize it, we will eliminate to the black market and we will cut down on other kinds of crime, prostitution and theft and so forth in this community. These crimes are committed by people in order to support their habit and the other thing is, we eliminate the incentive for people to smuggle the drugs into the country.
Judge Kane: If it is available like an aspirin, then there is no market for it.
CharonQC: Absolutely. Well, I suspect it might take some time. I think it—politically—
Judge Kane: Oh yes, it will. It will be longer than I am around I am sure.
CharonQC: Possibly, but moving away from drugs and turning to another method of that you indicated, with your blessing, I will quote it from your email. The issue of procedure and rules of procedure I quote, “Our rules of civil procedure became applicable in 1938 and nothing of substance has been done since in the way of change to meet the challenge from the onslaught of technological changes. You then go on to say we are in the US courts as I have described elsewhere a Conestoga wagon obstructing traffic on the information highway. Our system follows the general concept of notice pleading followed by liberal discovery which is supposed to be reduced and organized in a final pretrial order. The liberal discovery provision tends to make lawyers rich and bankrupt the system.”
Judge Kane: It is what he is doing.
CharonQC: What do you mean by that?
Judge Kane: Lawyers are getting rich off of this ridiculous system we have of filing notice you are going to sue and then letting the lawyers lose to go all over plowing through all of these data that is generated through computers and it costs so much. I will tell you, this is not an exaggeration, being an Irish-American, I am given to exaggeration I am sure, but this is not an exaggeration.
Judge Kane: At least once a week on civil cases, the lawyers from both sides come into my Court to—and what is called a scheduling conference. And, that is where we agree on who is going to take, whose deposition and who is going to send written submissions to the other side and what kind of motions that are going to be filed. And we try to project the length and time it will take to get the case ready for trial and then in a scheduling order that the attorneys are bound by.
And, in evidently, at least once a week, I have the lawyers come in and they proposed this and I looked at the complaint and I say, something along these lines. You are asking for judgment of $100,000.00, which I think is roughly equivalent for you to 50,000 pounds similar. And, you are asking for this and yet if you look at how much discovery you want, the cost for each side exceeds what you are asking for in the judgment.
CharonQC: Is this do you think the common problem John because there are any reasons and I am not a family lawyer but there was a case recently where the party did not speak to each other and ended up effectively contesting the matter, the point where bankruptcy followed and nothing was resolved. John Dice comes to mind.
Judge Kane: Yes, well, it certainly happens on a regular basis in this country. But I think it was Voltaire who said that he had only been bankrupt twice, once when he sued and lost and the other when he sued and won. And I think that the costs of litigation are absurd.
CharonQC: Sorry to interrupt you there John, but I think it was Justice Darling many years ago who said that the old favorite aphorism is justice is like the Ritz Hotel, if you are rich, you can have it.
Judge Kane: Yes, I quoted Justice Darling in some of my own opinions. Yes, I agree with that statement. Anatole France once said that the law and its majesty prohibits the rich as well as the poor from begging in the streets, stealing bread and sleeping under bridges. That is another to look at it as well from among revolutionary standpoint but the fact is, is that our legal system does not address the needs of our population.
CharonQC: This afternoon, I interviewed Lord Hunt who is a former British Cabinet Minister and he is a lawyer and he is looking at the regulation of the legal profession and quite rightly says, we are very proud of our standards in this country. We have got to have a properly regulated profession. But, you can have as much as regulation as you like, as much quality as you like but if people cannot afford to go to law, then justice is not being done.
Judge Kane: Yes.
CharonQC: So what can we do about it, cut through the brass of information?
Judge Kane: I think that what we need and I would not presume to talk about your system in United Kingdom. It has been years since I visited the inns of court but I would say that what we need in the United States may be applicable in the United Kingdom. And, that is what we need to develop a new paradigm of procedure that is not based upon the administration of justice when it was written with quils on lambskins and that is the said system that we have today.
We need to have some means, not necessarily of gathering the data. The computers already do that. We need to know what to do with it after we have it and it is absurd. I have had trials in my court, in front of juries consisting of ordinary citizens and I firmly believe in our jury system. But I have had lawyers come in with as many as 9,000 pages of documents. Well, what are they going to do with it?
Judge Kane: They are certainly not going to have members of the jury absorb all of that. So, we need to develop a legal process which is commensurate with and complimentary and the kind of the technology that we have today and we have not done that. In the United States system, we are still saying shoot your arrow in the air and then we will find out more about the case. And the consequence is that the cost of all these lawyers flying on airplanes, not just in the United States, all over the world now and taking depositions in Tokyo of all places. We are doing this craziness that is just profligate.
CharonQC: You have few systems in the United States where a lawyer can do all the things or paperwork as well as its advocacy but I appreciate because I have a pleasure of interviewing four US lawyers who are criminal defense specialists. And, they do the trial advocacy, but presumably, you have been faced for those advocates who appear in your Court who do not do a lot of trial advocacy, is this a problem?
Judge Kane: Oh yes, we call that the distinction between litigators who engage in all of this pretrial discovery and then do not try the case and trial lawyers who actually appear in the courtroom. You are quite right that it is mostly the criminal lawyers, both the prosecutors and defense council in criminal cases who are very, very good in the courtroom because they do not have discovery in criminal cases the way that we have discovery in civil cases.
They have to think on their feet. They have to reduce the documents so that they can relate to them in oral argument rather than just dumping documents into the courtroom and they are there all the time. Yes, I much prefer to try criminal cases because the lawyers are far better.
CharonQC: Oh, that is interesting.
Judge Kane: They are not as rich but they are a lot better.
CharonQC: You also said in your email to me John and this is a nice way of closing, the essential problem for a trial judge in this system as I see it is how amidst the chaos of volume to make discrete judgments on the base of carefully presented and analyzed facts.
Judge Kane: Yes.
CharonQC: How does the judge cope?
Judge Kane: That is the problem we struggle with on a daily basis and frankly, it is almost overwhelming.
CharonQC: Yes. It has been fascinating to have a short insight into your views on both the war on drugs and the procedural difficulties that you face as a judge and I am very grateful for you coming on but I know we gone up to the minute mark. It was great pleasure to have the opportunity to talk with you John. Thank you very much indeed.
Judge Kane: Thank you so much.
Judge Kane: Bye.
CharonQC: My thanks to Judge John Kane for a very entertaining and interesting look at the unwinnable war on drugs and for an insight into the procedural difficulties he faces as a judge in the United States.
I hope you enjoyed it and it was my pleasure to do. That is all for tonight. Bye.