Sentencing While Stoned

Sentencing While Stoned
Posted by CN Staff on May 22, 2002 at 12:54:14 PT
By Sherry F. Colb
Two men on Arizona's death row have challenged their respective sentences on the ground that their judge, Philip Marquardt, had been using marijuana around the time that he sentenced each of them. Their claim is that his drug use might have adversely affected his choice of penalty for them. (Former Judge Marquardt was required to step down in 1991 after two marijuana convictions.) It seems straightforward that if a judge is intoxicated when he imposes a death sentence, re-sentencing is called for. But what if the link between use and sentencing is less direct and immediate? 
For instance, what if it is impossible to prove that a sometimes-intoxicated judge was in fact intoxicated on the particular day of sentencing? Or what if it is clear that the judge was not?Might a judge's private use of illegal drugs have some bearing on his capacity to do his job even if he is not "sentencing while stoned"?A number of judges have weighed in on the side of the government in the Arizona cases, arguing that what a judge does in private has no relevance to the validity of the sentences he hands down from the bench. In a dissent from an order in one of the two cases, for example, Judge Alex Kozinski of the Ninth Circuit Court of Appeals wrote that "judges rightly expect to have medical histories, family tragedies, even occasional overindulgences in intoxicating substances, remain private." The implication is that a judge's personal use of marijuana is none of a defendant's business. But while plausible on the surface, the argument for judicial privacy in this context is unpersuasive.Judges Enjoy the Privacy Rights that All Citizens PossessLike every citizen in this country, a judge has privacy rights guaranteed by the Constitution. As a matter of substantive due process, for example, a judge is entitled to use contraception, obtain an abortion, beget and bear children, send her children to private school, teach them a foreign language, and make judgments about the people who may develop close relationships with them. A judge also has a Fourth Amendment right against unreasonable searches and seizures. Police accordingly may not, in the absence of a basis for suspecting a judge of wrongdoing, target him for a stop on the highway or force him to produce a urine sample for drug testing.These are substantive and procedural privacy rights that belong to individuals as individuals, regardless of whether they serve in the judiciary or clean toilets at the YMCA. These rights do not, however, include an entitlement to smoke marijuana or the related right to keep the fact of one's drug use a secret. Drug Use and Judicial Arrogance: The Law For Thee, But Not For MeI have argued in an earlier column (and continue to believe) that the war on drugs is counterproductive and ill-conceived. I also believe that the punishments for possession offenses are draconian, and that the Supreme Court erred spectacularly in Harmelin v. Michigan when it upheld a life sentence for a man convicted of cocaine possession. The defendant had there challenged his penalty, claiming gross disproportionality in violation of the Eighth Amendment ban on cruel and unusual punishments. In my view, this claim should have prevailed., then, do I claim that Philip Marquardt's drug use was relevant to his capacity for sentencing?It is relevant, I would suggest, because it expresses a dangerous arrogance, an attitude of self-exemption from laws that bind everyone else. This attitude should disqualify a person from judging. For better or worse, judges already enjoy powers that could make one forget that there is no royalty in the United States. The judge - a person who is addressed as "your honor" by everyone in his chambers and in the courtroom - may place people in jail for "contempt of court" when they fail to show him sufficient deference and respect. Critical remarks that normally receive First Amendment protection as free speech effectively become punishable offenses when aimed at a judge on the bench. The judge, however, need not show comparable respect for litigants or for their time. The world of the courtroom revolves around the needs and convenience of the judge, while virtually every other consideration takes a back seat.Even under normal circumstances, there is a great risk that a judge will therefore stop thinking of the people he judges as fellow citizens, with value equal to his own, and begin thinking of them as his subjects. By violating the law as he continued to function as a judge, Philip Marquardt succumbed to the temptation to elevate himself over everyone else. Am I saying that a judge's use and possession of marijuana is inherently wrong or disqualifying? No. One could reasonably consider drug prohibition unjust and inappropriate and accordingly choose to disregard that law. But is the law against possession of marijuana treated as a significant prohibition in our society, one that - for many - is violated at one's peril? Absolutely. And this reality has implications for the task of judging. Unlike, say, jaywalking or playing low-stakes poker with friends - "vices" that few think twice about indulging - the possession of a controlled substance has - wrongly, in my estimation - been investigated and prosecuted zealously and mercilessly. As of the year 2000, 458,000 Americans were serving time in prisons within the United States for drug offenses. As of 2001, drug convicts accounted for 57 percent of the federal inmate population.When a Drug-Using Judge Sentences Drug Users - and Other DefendantsWhy should any of this bear on Philip Marquardt and the sentences he imposed while serving as a judge? The answer is simple: Because judges apply the law, punish those who violate it, and - most significantly - confront and pass judgment on drug offenders. A person who uses marijuana, whatever else one might say about him, has no business sending others who use marijuana to prison. When a drug-using judge serves full-time during the ongoing "war on drugs," however, such hypocrisy is virtually unavoidable. In today's world, one cannot remain a judge for long without incarcerating someone for some variety of drug possession offenses.Is the hypocrisy limited to sentencing drug offenders? The two death row inmates who have challenged their sentences by Judge Marquardt were each convicted of killing people. The state can thus maintain that Judge Marquardt did not give up the moral high ground or exhibit any hypocrisy in sentencing them; after all, he was not himself a killer. But the links between various criminal laws are not so easily severed. Richard Michael Rossi, one of the two convicts, for example, says he pleaded with Judge Marquardt for leniency prior to sentencing, on the ground that he (Rossi) had used and was addicted to cocaine when he committed the homicide in question. Judge Marquardt chose not to grant leniency. The judge even went so far as to specify that "I want it to be clear that this court finds that the cocaine addiction does not negate the factors of the cruel, heinous or depraved factors." He then sentenced Rossi to death.Ironically, three years later, when Judge Marquardt awaited sentencing for his own marijuana charges, he sought leniency by claiming addiction, just as Rossi had. The hypocrisy could hardly be clearer. Can a Drug-Using Judge Sentence Drug Users Fairly For Any Crime?Hypocrisy is not the only troubling aspect of Marquardt's sentencing of Rossi. The judge's decision on whether to offer Rossi leniency might have also been clouded by personal psychological issues, in a way in which a sentence - especially a death sentence - should never be. Was the judge trying to prove something, for example, given his own use of marijuana? In a parallel phenomenon, those who attack gay men and lesbians often turn out to have homosexual feelings of their own with which they are consciously or unconsciously struggling. J. Edgar Hoover and Roy Cohn are two notorious examples. One could easily imagine a similar dynamic at work with Judge Marquardt and his criminal defendants. Other psychological explanations could also be persuasive. Was Marquardt being especially hard on Rossi because of self-hatred - because he despised his own drug use and believed at some level that he, too, deserved punishment? Alternatively, did Marquardt fear that any leniency towards drug users might somehow expose him as a drug user, and did he therefore sacrifice Rossi's life to protect his own "privacy"? We will never know which, if any, of these possible psychological explanations are accurate. But we can be confident that psychological issues like these should form no part of any sentencing - especially not in a capital case. All this being said, one must nonetheless take into account the potential deluge of defendants seeking re-sentencing or retrial, if all of Judge Marquardt's sentences become presumptively void. Ultimately, it may be impractical to invalidate a sentence simply because it has been imposed by a law-breaker. But certainly those who can show that Marquardt was under the influence during actual deliberations regarding their sentences should have the benefit of new sentencing hearings. And so should those who, like Rossi, were known by Marquardt to be drug users, or accused drug users, at the time of sentencing - since it seems unlikely that, under the circumstances, Marquardt could have judged their cases with the level of fairness and impartiality that we expect of a judge. Finally, let Marquardt serve as a cautionary tale to judges. As a majority of a Ninth Circuit panel said, quoting Shakespeare, "He who the sword of heaven will bear Should be as holy as severe."Complete Title: Sentencing While Stoned: Why A Judge's Private Use Of Marijuana May Call His Sentencing Capacity Into Question Sherry F. Colb is a visiting professor at University of Pennsylvania and a professor at Rutgers Law School. Source: (CA)Author: Sherry F. ColbPublished: Wednesday, May. 22, 2002Copyright: 1994-2002 FindLaw Website: Article:Issue in 2 Death Sentences: Judge's Drug Use
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Comment #13 posted by p4me on May 22, 2002 at 15:51:33 PT
We are the wronged and we are the right
Thanks for the support of the POW campaign there EJ. I think I will get me some wire and hang a Washington quarter in my toilet. Of course anyone that comes to my house has a tendency to agree with me already.We are one "Piss on Washington Company" away from victory and justice. It is coming under some name because there is a pent up demand that can yeild profits and we know profits make things happen. Well let me go get my wire.We are the wronged and we are the right. Now if we could get all the 40% to care and fight the fight to end the nonsense once and for all.VAAI,POW
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Comment #12 posted by E_Johnson on May 22, 2002 at 15:08:19 PT
The songs of the Pee for Freedom movement
First there is the rousing dance anthem We are a part of a Urine NationThen there is the acoustic guitar kumbayyah protest songThe Drug War my friend is pissing in the windThe Drug War is pissing in the wind
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Comment #11 posted by E_Johnson on May 22, 2002 at 15:01:57 PT
And there could be contests!
What American male can resist a pissing contest?In the winter there is the tradition write your name in the snow.The Pee for Freedom CupThink big!
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Comment #10 posted by E_Johnson on May 22, 2002 at 14:59:41 PT
It could get the beer industry on our side
You know the old saying, you don't buy beer, you rent it.
[ Post Comment ]

Comment #9 posted by E_Johnson on May 22, 2002 at 14:55:48 PT
p4me you're a genius
A Pee on Washington demonstration could break the media barrier.Marijuana they censor, but pee pee and poo poo fascinate them endlessly.
[ Post Comment ]

Comment #8 posted by E_Johnson on May 22, 2002 at 14:53:54 PT
The National Urine Test
Yes here's the slogan:Pee on Washington 2002It's time to give a whizz for your rights
[ Post Comment ]

Comment #7 posted by E_Johnson on May 22, 2002 at 14:50:12 PT
Alfred E. Neuman would be proud of me
I grew up addicted to Mad Magazine.By the way for those who weren't swept away by the wave of 1980s pop, Rhythm Nation is a song by Janet Jackson.
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Comment #6 posted by E_Johnson on May 22, 2002 at 14:47:29 PT
We are a part of a Urine Nation!
With a pee cup by our side
To break the marijuana lines
Let's work together
To improve our way of life
Join voices in protest
To social injustice
A generation full of courage
Come pee with mePeople of the world today
Are we looking for a better way of life
We are a part of the urine nationPeople of the world unite
Strength in numbers we can get it right
One time
We are a part of the urine nationThis is the big pee test
No struggle no progress
Lend a hand to help
Your brother do his best(tee hee!)Things are getting worse
We have to make them better
It's time to give a whizz
Let's work together come onPeople of the world today
Are we looking for a better way of life
We are a part of the urine nation
People of the world unite
Strength in numbers we can get it right
One time
We are a part of the urine nation
[ Post Comment ]

Comment #5 posted by E_Johnson on May 22, 2002 at 14:42:04 PT
Pee on Washington excellent idea!
Yes I would like to see frozen pee White Houses the size of Saint BernardsWhere do get my White House ice mold?
[ Post Comment ]

Comment #4 posted by E_Johnson on May 22, 2002 at 14:37:17 PT
Did we just switch to a monarchy or something?
Finally, let Marquardt serve as a cautionary tale to judges. As a majority of a Ninth Circuit panel said, quoting Shakespeare, "He who the sword of heaven will bear Should be as holy as severe."
Um hello! Constitution, democracy, three branches of government, checks and balances.Nobody in any branch of government ought to picture themselves as bearing the Sword of Heaven or of being in any way holy.Of the people, by the people and for the people.What part of that is not being understood here?
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Comment #3 posted by dimebag on May 22, 2002 at 13:54:31 PT
Is there a Local DEAth building in My area
I sure would love to go piss on every official that comes out of that building. Stand on top, Drink a crap load of beer, and piss on people all day long. Sweet....Pee On washington
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Comment #2 posted by Lehder on May 22, 2002 at 13:48:10 PT
The implication is that a judge's personal use of marijuana is none of a defendant's
   business.Let's try that again:....a defendant's personal use of marijuana is none of a judge's business.
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Comment #1 posted by p4me on May 22, 2002 at 13:16:16 PT
Maybe I am not direct enough.
I want to express my view that the government forces that lead the war on marijuana need to be shown the full force of the Pee for Freedom movement.I am not for throwing money away, but maybe some of you people that have jobs could put a Washington quarter in the urinal at work and let them get that it is time to Piss On Washington. Your lowly paid urinal attendant will be glad you did and encourage other to POW.Yes I would like to see frozen pee White Houses the size of Saint Bernards this June 6th in front of the DEAth offices. But think of how much better the frozen pee idea becomes in colder weather when the pee stays around longer. We need ice trays with characters that are placed everywhere the nights before this November's elections. Even a little tray with the letters P-M-e and the number 4 as a set would be a good idea.So if you wonder what you can do for freedom today, maybe you could throw a quarter in the urinal. You can put it in the morning and it will probably still be there when you leave at night if you want your money back.I leave you now with a fond "Piss on it."ICBS
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