Federal Courts

Judge Morris S. Arnold Eighth Circuit Court of Appeals Appointed by George H.W. Bush, 1992 "You may say that I said that many of our drug laws are scandalously draconian and the sentences are often savage. You may also quote me as saying the war on drugs has done considerable damage to the Fourth Amendment and that something is very wrong indeed when a person gets a longer sentence for marijuana than for espionage." Senior Judge Andrew W. Bogue District of South Dakota Appointed by Richard Nixon, 1970 Prior Legal Experience: State's Attorney, Turner County, South Dakota, 1952-1954 "I will say this on the sentencing guidelines: I detest them. The sentencing guidelines divest courts of their role in imposing just and appropriate sentences to fit the crime and the defendant, with due consideration to all the attendant circumstances. They deprive judges of their discretion which is the touchstone of justice. Were the sentencing guidelines merely suggestive, they might very well serve as an important and helpful model which could assist judges in a difficult task. However, in their present form, as I said, they are detestable." Judge Richard A. Gadbois, Jr. (deceased) Central District of California Appointed by Ronald Reagan, 1982 "The law stinks. I don’t know a judge that thinks otherwise."

I am pleased to announce that the website for my federal sentencing project can be now be accessed at this link. The underlying research for this project was funded by a Soros Senior Justice Fellowship grant and was conducted over the past four and a half years. The heart of the work is contained in forty comprehensive case studies of federal cases in which Republican appointees complained that the sentences required by law were excessive. These profiles are the most comprehensively documented cases studies of federal sentencings available on the Internet. The site also includes a draft of my forthcoming article in the Colorado Law Review, "The Future of Federal Sentencing Policy: Learning Lessons from Republican Appointees in the Guidelines Era." This article contains a blueprint for sentencing reform legislation that might resonate with this cohort of federal judges in the post-Booker era. The launch of the website this summer is intended to allow my work to be used by sentencing reformers in the upcoming debate in Congress over the Sentencing Commission's proposed changes to the crack cocaine penalties. By showing that Republican appointees share many of the same concerns as academics and criminal defense attorneys, I hope to explode the myth of the liberal federal judiciary and pave the way for meaningful and bipartisan sentencing reform.

While there was no evidence that Dr. Hurwitz was profiting from the resale of his prescriptions -- and the jurors I interviewed said they didn’t think he intended the drugs to be resold -- he will still spend more time in prison than almost all the patients who admitting lying to him and reselling the drugs. Thanks to the deals they made to cooperate with prosecutors, seven of the nine patients got sentences ranging from 10 to 39 months. Only two got longer sentences than 57 months -- and one of them, who got 72 months, was also guilty of armed robbery and arson.

Brinkema said she had read news accounts of the first trial and had seen some of the massive prescriptions Hurwitz had given out, including one patient who was given 1,600 pills a day. "The amount of drugs Dr. Hurwitz prescribed struck me as absolutely crazy," the judge said. But after hearing testimony from both sides, "I totally turned around on that issue," Brinkema said. "The mere prescription of huge quantities of opioids doesn’t mean anything."

…the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

Today's Supreme Court ruling in the notorious 'Bong Hits 4 Jesus' case (aka Morse v. Frederick) was a disappointment. Still, without naming names, I think some of my colleagues in the blogosphere have missed an important point in their haste to condemn the Court.

It is vitally important that students and school administrators get the right message about what this ruling does and does not say about drug related speech in school. Morse v. Frederick states that the 1st Amendment does not protect speech advocating illegal drug use. Nonetheless, a majority of Supreme Court Justices clearly agree that political speech criticizing the war on drugs should be protected.

As Pete Guither highlights, Alito's concurrence addresses the burning question of what this ruling means for students who wish to speak out about drug policy itself:

I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'

The Court's majority conclusion that Frederick's 'Bong Hits 4 Jesus' banner constituted unprotected pro-drug speech during school was dependent on Alito and Kennedy's concurrence. In short, a majority of the Court's justices expressly reject the notion that political speech advocating drug policy reform could be restricted in the same fashion.

It is exactly this question which compelled Students for Sensible Drug Policy and the Drug Policy Alliance to file Amicus briefs with the Court, and it is clear that reformers got the straightforward answer we were looking for.

Along these lines, it's also notable that Chief Justice Roberts's majority opinion responds to Alito by noting that the banner was not political speech. Thus, even the Court's majority acknowledges that today's ruling in no way constitutes a restriction on speech that merely criticizes the drug war.

None of this is to say that Morse v. Frederick is a good ruling. Indeed, the Court has rarely looked sillier than it does today. It is the height of arrogance to decide arbitrarily what 'Bong Hits 4 Jesus' even means in the first place, and then base a 1st Amendment ruling that affects everyone on something so subjective and nonsensical. Morse overflows with hyperbole about the dangers of drugs to America's youth, as if a 'Bong Hits 4 Jesus' banner could somehow exacerbate such problems. Yeah, it's a remarkably stupid ruling in that regard.

But to ignore the Court's deliberate defense of political speech is to disregard the primary concern that drew the attention of drug policy reformers to this case in the first place. Certainly there are ambiguities, and today's ruling is far from an endorsement of widespread drug policy debate on high school campuses. How students and administrators ultimately interpret the ruling will vary and more litigation will likely be needed. But it is precisely for this reason that defenders of free speech must be measured in our criticism. Nothing could be more harmful than allowing this case to be understood as restricting speech that it does not in fact restrict.

So, while gray areas abound, the logical interpretation of Morse v. Frederick is that political speech advocating drug policy reform (though not drug use itself) is protected under the 1st Amendment.

Go get 'em, students. If you need some better banner ideas, contact Students for Sensible Drug Policy.

Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to "terminate the encounter" between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission.

"I'm a very strong believer in the First Amendment and the right of people to speak and to write," [...] "I would be reluctant to support restrictions on what people could say." [...] "it's very dangerous for the government to restrict speech."