Washington Post Staff Writer

05/17/93 -- (C) 1993 The Washington Post (LEGI-SLATE Article No. 180406)

Two prominent federal judges in New York set off a furor last month when they publicly asserted that they had stopped handling drug cases because they were appalled by the futility of the war on drugs and the cruel sentences mandated by federal laws.

Their stand was an unusual frontal assault in a protracted guerrilla war by federal judges around the nation against controversial sentencing rules that went into effect in 1987.

While few judges have been as vocal as senior U.S. District Judges Whitman Knapp and Jack Weinstein, there are many whose disdain for the sentencing rules is just as intense. On April 29, for instance, U.S. District Court Judge Harold Greene - who had been reversed before when he struck down the sentencing guidelines - cited a new theory and declared the guidelines unconstitutional "as applied" in a case before him. Greene wrote that the "career offender" guidelines dictated a "plainly unjust and excessive sentence" in the case - 30 years for a man caught with less than eight grams of illegal drugs.

Earlier last month, U.S. District Judge Stanley Sporkin refused to impose a 30-year sentence on a man who sold 6.59 grams of crack to an undercover cop. The defendant is no "drug kingpin," Sporkin wrote, and the guidelines are "out of touch with reality".

Meanwhile, some semiretired "senior" judges, such as Knapp and Weinstein, have gone a step further, removing themselves from the random draw by which criminal cases are assigned.

In the District, all but one of the senior judges has pulled out of the criminal draw, according to the clerk's office. While none has called the move a protest, Judge William W. Schwarzer, director of the Federal Judicial Center, noted that it is "quite dramatic" that so many would withdraw from the criminal case pool while continuing to take other cases. Schwarzer estimates that about 50 senior judges around the nation are quietly refusing to handle drug cases because of their "disenchantment" with mandatory sentencing rules.

After Congress overhauled federal sentencing laws in 1984, with an eye to reducing disparieties in sentencing by limiting the discretion of judges, more than 150 federal judges declared the law unconstitutional. But in 1989, it was upheld by the Supreme Court. Since then many judges have rebelled, arguing in specific cases that because judges no longer can weigh individual factors, the rules often mandate cruel and unjustified sentences.

In separate speeches and interviews last month, Knapp and Weinstein went public with their refusal to take drug cases. Weinstein cited a memo he wrote to colleagues, saying, "I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade."

After two days of front-page headlines in New York, Knapp demurred that he was not really mounting a protest. As a senior judge, he said, he simply exercised his prerogative to choose the types of cases he prefers. "If I said I prefer vodka to martinis, that does not mean I am protesting martinis," Knapp opined.

But Knapp went on to write an op-ed piece for the New York Times, asserting that "after 20 years on the bench, I have concluded that federal drug laws are a disaster." He called on the federal government to leave drug enforcement to the states.

Such public plain-speaking by federal judges is almost taboo, and Knapp's and Weinstein's bluntness played to mixed reviews. A few judges privately applauded thir actions. But most, while defending their right to refuse criminal cases, suggested, as one judge said, that "they might be better advised not to make such a scene about it."

Meanwhile, House Republican leader Robert H. Michel (R-I11.) and seven GOP members wrote to the two judges: "You have sworn to uphold the law - not to subjectively select which laws to enforce." They called on the judges to resign if they couldn't fulfill their duties, adding, "We stand ready to introduce a resolution of impeachment."

The threat engendered little more than giggles. Sound like "some of the congressmen have slipped a cog," said one senior judge in the District.

Knapp wrote back, crisply referring the politicians to U.S. Code Title 28, Section 294 (b), which states that a senior judge may "perform such judicial duties as he is willing and able to undertake. ..." Underscore "willing."

Under law, judges who are at least 65 may take senior status and continue to collect full salary - now $ 133,600 a year - with pay raises by doing about 25 percent of an active judge's work.

According to Northwestern University ethics expert Steven Lubet, there is nothing unethical about the judges' decision. "Short of refusal to sit on a specific case directly assigned by the appropriate judical authority, there is no ethical problem," Lubet said.

While the protest may pass legal muster, is it effective?

Some judges argue that Congress will be more reluctant to change the sentencing laws if judges go on the attack.

Others disagree. Sporkin argues that this "is not a power fight between Congress and the courts. ... This is the courts telling Congress, You can put these people away and throw away the key, but you are not winning the drug war. It is a failure. "Authorities, he added, are "running up statistics and getting every little, two-bit person carrying drugs, but they are not going after the drug kingpins."

As for the judges who started the fuss last month, Weinstein is no longer granting interviews.

And the 84-year-old Knapp?

"In my fantasies," he said last week, "I am sure this is going to change (drug laws for the better). In reality, I'm afraid it won't change a thing."