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Victimless Non-Violent Federal Drug Crimes

I enjoy reading Richard Kopf‘s blog, Hercules and the Umpire. He’s a federal trial judge in Nebraska who mixes self-effacing honesty with humor and the sort of intellect and consistency that tend to be present in the best judges I’ve encountered. It’s a fascinating glimpse into the mind of a man with a lot of power, but it’s also at times a disturbing glimpse into the world of someone who can make the things he believes have real impacts on the real people who appear in front of him no matter how wrong he might be.

A post of his from last month asked, “Are drug crimes ‘victimless’?” He previously wrote more about his views in another post entitled “No more bullshit: In the federal courts, there is no such thing as a ‘non-violent drug crime.'” I wasn’t going to post any sort of response, but a recent conversation I had with a prosecutor inspired me. What was interesting to me was the fact the prosecutor made the same arguments in the exact same way Judge Kopf did. Even more interesting was the fact I almost never hear people who are not judges or prosecutors argue in that manner. It’s fascinating to think how the art of persuasion differs for people who can simply order how things are to be or make whatever demands they please in a system rigged in their favor.

Here are Judge Kopf’s arguments, one by one, the points intended to make us agree with him:

When you distribute a substance that you know is poison to another person that is a violent act. Period. End of story.

I don’t appear in front of him, nor do I expect to ever appear in front of him, but that sort of argument surely wouldn’t settle well with any of the judges I know and respect. As is always the case when someone ends a statement so firmly, it actually seems to me that it’s anything but the end of the story.

Alcohol is surely poison too, but does he really think I am committing a violent act every time I distribute homebrew to my nearest, dearest friends? Is the Budweiser delivery guy just some violent thug hurting innocent people every time he delivers a keg to a sports bar in time for NFL Sunday? Alcohol is just as poisonous as many things found in Schedule I of the Controlled Substances Act, the category for drugs with no currently accepted medical use. Tobacco is just as poisonous too, and probably so are fatty foods, all sorts of preservatives, and plenty of other chemicals that corporations use to treat ordinarily healthful foods that most people can’t afford to eat without poison added. Judge Kopf can’t really be attributing violent acts to every fast food, convenience store, and grocery employee in the country, can he? More important than the flaws in his arguments is the fact that saying the words “period” and “end of story” are hardly effective advocacy. They’re the kinds of devices that would get a young guy like me hammered for using in lieu of thoughtful, reasoned argument in front of a smart judge like him.

His next one isn’t so different:

Moreover, the connection between guns and drugs is beyond dispute.

“Beyond dispute” is a bad as “period” and “end of story,” the sort of stuff an advocate says when there’s lots of dispute and he’s either confusing the issues and trying to to make things appear simpler than they are or he’s quite obviously on the losing side and wants to bully people into being wrong with him. Bright defense lawyers quickly learn that saying such things usually serves as a big first step on the path to failure. Prosecutors, not so much. I guess I know how it works for judges now too.

His statement may be valid, but it doesn’t help to make his point. There is a connection between the two, but it’s just like how there’s been a connection between guns and spice since we outlawed it. In the two and a half years I practiced law prior to its ban, I never saw a single violent incident involving the substance, and I had a much higher call volume back then. Now, rarely does a month go by when there isn’t someone calling my office wanting help with an armed robbery or a misconduct involving weapons charge where spice was somehow involved. There will always be a connection between guns and anything that’s forced underground by misguided legislation, but that hardly does anything to convince me to make a giant leap and decide a peaceful, voluntary transaction is in fact violent or has a victim just because there’s a connection between black markets and firearms.

He goes on:

Not every purveyor of drugs uses or carries a gun, but the world where they operate organizes around one thing and one thing only, guns.

It’s the same argument. He’s right, but he’s right because any world or underworld we create will have to have some sort of order to it, and that order either comes from the government or the most effective weapon available at the time to those who are a part of it, willing or not. What in the whole history of human events could possibly make him think that prohibiting something that some people want is somehow not going to involve weapons? More importantly, what about that suddenly turns individual acts not involving guns or harm to anyone into violent crimes with victims?

Still further, whole neighborhoods that were once rich, vibrant and nurturing are now literal war zones because of drugs. In large swaths of America, functional families are no more because of drugs. Like global warming, these are inconvenient truths.

Yet again, his facts aren’t that bad, but his advocacy leaves something to be desired. What he’s arguing isn’t solely the product of anything inherent in drugs themselves, but rather as much the product of our laws against them. The argument is more or less irrelevant to his central thesis that there is no such thing as a non-violent drug crime unless he’s trying to convince us that everything that causes problems for people and neighborhoods is violent and has victims. What about having dirty swimming pools or grass in your desert landscaping? Would those be violent crimes with victims to him as well? He’d find champions here in Arizona if he substituted drug prohibition with those horrific offenses, but that doesn’t make him right.

The points he makes are not just like the back and forth I had with that one prosecutor, but like countless arguments with countless other prosecutors. They always say “period” and “end of story” and “beyond dispute.” They also say drugs are bad and drug crimes are violent because they ruin neighborhoods, ignoring that prison sentences are also bad because they often result in the violent removal of a peaceful individual from society and ruin innocent families. Unmoved by the effect the law has on people other than defendants, they pontificate about how my clients should’ve thought about the consequences when they did the crime. Invariably, I can’t help but think about how they should probably think about the consequences of what they do as well.

Almost every day, I see that the violence surrounding drugs is not merely a product of the drugs themselves, as you don’t just smoke a joint and go on a violent rampage any more than you sip an Armagnac by the light of a winter fire and proceed to murder your family for no reason. The problem is that people doing illegal things tend to be violent. People who are marginalized and whose dependencies are forced underground or “treated” with prison sentences that place them in cages with real bad guys tend to be violent too. Federal drug crimes may all be be violent in some broad, philosophical sense, but it’s because we as a whole have ensured they have to be that way. A change in the laws would result in a change in that fact. If all that he’s arguing is that involvement with something people want and that we’ve criminalized is linked to violence, then I can’t disagree. If that’s what he’s arguing, though, I fail to see how the people passing, enforcing, and adjudicating the laws against it aren’t every bit as responsible as the alleged offenders. Judging and prosecuting must be violent crimes with victims, I suppose.

It’s really the manner of his argument that’s most fascinating in the end. I’m just a lowly defense attorney, so it’s tough to make a point without the luxury of words like “period,” “end of story,” and “beyond dispute” automatically having weight. Even trying results in disaster. Trust me. Being a judge must be great, though. I’ve also fought enough prosecutors to know that being one of them sure is great in that way too.

I’ll read Judge Kopf’s blog as long as he keeps writing, but his arguments and his advocacy on this particular subject really leave something to be desired. I certainly couldn’t get away with those kinds of arguments and that kind of language where I practice, and I doubt he’d let me if I practiced in front of him.

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9 Responses to "Victimless Non-Violent Federal Drug Crimes"

  1. Hey Matt,

    In spite of your criticisms, the judge recommends your blog post to his readers and calls your critique (and Scott Greenfield’s) “extremely well-written, persuasive and very critical of my views but entirely fair and respectful.” He even walks back some of his remarks. Good for the judge!

    But as for your observations concerning prosecutors, coincidentally, local press gadfly Laurie Roberts has some timely remarks today on “playing ball” with them and how that’s supposed to work at least around here in Maricopa County, Arizona — doubtless, it’s something that regardless of jurisdiction, defense counsel and their clients generally understand all too well. http://www.azcentral.com/insiders/laurieroberts/2013/10/08/if-not-pointing-a-gun-at-police-is-worth-10-years-in-prison-then-pointing-a-gun-would-be-worth/

    But writing on the “Hip-hop Theory of Justice,” George Washington University law professor Paul Butler was more diplomatic than I am when I opine on prosecutorial abuses. Writing about the supposed good intentions of prosecutors, the kindly law prof says the good intentions “get derailed for three reasons: the adversarial system, law-and order culture, and the politics of crime.”

    Unfortunately, the last point too often also applies when it comes to election/appointment to the bench. The third-rail of judicial aspiration is the public’s perception that you’re soft on crime. Is it any wonder why so many prosecutors ‘grow up’ to be judges?

    But also not mentioned by Professor Butler and what’s even more important in my view, is the role played by Lord Acton’s famous admonition “that power tends to corrupt, and absolute power corrupts absolutely.” Think, too, for example, of the mindset that engenders “cash for convictions,” which I posted about at http://lawmrh.wordpress.com/2011/04/05/does-cash-for-convictions-cure-prosecutorial-deliberate-indifference/

    Better yet after all these years, it’s hard to come up with better bookend quotations on the shelf of prosecutorial duty than: “The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial.” Donnelly v. DeChristoforo, 416 U.S. 637, 648–49 (1974) (Douglas, J., dissenting)

    And of course, the more famous: “[I]s not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. at 88

    – Mo

  2. Andrew B says:

    Hey Matt,

    Congrats on being anointed the “conscience of Tempe!”

    1. Matt Brown says:

      If only I had some sort of badge for that to put up on my blog’s sidebar…

  3. […] conscience, criminal defense lawyer Matt Brown, found a fascinating post by United States District Judge Richard Kopf at his Hercules and the […]

  4. […] the comments to each. See here and here.  Now, please read Matt Brown, Tempe Criminal Defense, Victimless Non-Violent Federal Drug Crimes and Scott H. Greenfield, Simple Justice, Only the “foolish” call drug crimes […]

  5. RIGO says:

    Matt. I see the point you make that these people fail to clarify their logic for their position.
    I offer you my humble opinion as to why drug crimes are violent and victim crimes.
    The fact is that the feds are involved. The feds have created, refined, and distributed the knowledge on how to birth and propagate these substances.
    Victims are the people who decide to actually participate in the market of narcotics and open themselves up to prosecution because they do not work with feds or cops.
    These people are victims because they will actually face full and harsh penalties for engaging in this conduct and, yes your right, their families may be destroyed that is what makes it dangerous.
    The danger is that these people who engage in the sale of these substances and are not feds or do not work directly for feds, so they face very real consequences. Yet people who sell these substances and work with the feds or are feds themselves face NO consequences and that is the very reason that drug crimes are dangerous and victim crimes.
    Also, the victims are not just the people who trap, but the people in the neighborhoods that live next to meth or dope houses operated by feds or people who work with feds. The people who live near these types of locations have no voice, representation, or recourse because of their status, which is usually low income neighborhoods, which they then become another category of victims for drug crimes.
    I have more but I tried to be brief.

    1. Matt Brown says:

      I guess if you put it that way (that the defendants are the victims and the crime is violent thanks to the feds), I can’t disagree. I doubt that’s what Judge Kopf meant though…

  6. Andrew (the other one) says:

    It’s depressing that otherwise intelligent people have no concept of why Prohibition failed or why individuals with no access to legal remedies would resort to carrying firearms. Somehow, though, Prohibition II will work because legislators, judges, and prosecutors say so.

    1. Matt Brown says:

      Any day now, just wait!

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