CONTINUED
For
example, news of
the implementation of Zero Tolerance was widely publicized (the seizure
of $ 2.5 million yachts is a good story and one that powerful interests
wanted to get out). Within weeks after it began, members of Congress
grilled
Commissioner Von Raab and others about what generally was perceived as
an extreme and indefensible policy. Legislation was hastily
introduced
to provide defenses for "innocent owners of vessels seized for drug
violations."
As a result, a modicum of reasonableness soon crept into Zero
Tolerance.
A
judicial conference study of
the effect
of mandatory minimum sentences has prompted proposals to repeal or
modify
provisions in the Anti-Drug Abuse Act. It is not just the
individual
injustices, such as the case of Richard Anderson, that have brought
calls
for reform. As prison populations grew, concerns over spiraling
prison
costs rose as well. Over half of all federal prisoners are now serving
time on drug charges, and the percentage is increasing. Drug
cases
represent seventy to eighty-five percent of all federal cases in
some jurisdictions, and civil litigation is being pushed off the
docket.
The neglect of business litigation is beginning to squeeze important
interests
who otherwise would not shed tears over the plight of drug mules.
Reform at some date thus appears possible.
In the
instances of Project Looking
Glass and the
Fifth Circuit's "significant injury" test in prison brutality cases, it
was the Supreme Court that redirected the misguided programs.
Project
Looking Glass was effectively killed when the Court ruled that
government
implementation of Looking Glass constituted entrapment. The possibility
of continuing Project Looking Glass was further lessened by the media
attention
the Jacobson case received, including a segment on CBS's Sixty
Minutes.
Keith Jacobson became more than a name on a legal document. He
was
a sympathetic, slow-speaking, middle-aged farmer whose image came into
millions of living rooms. It became more difficult to be
indifferent
to his plight.
The
Court's rejection of the
"significant
injury" test in prison brutality cases points to two important
differences
between the Supreme Court and courts of appeals. First, docket
management
is a concern of a different sort for a court whose review is
discretionary,
not mandatory. Second, the Supreme Court, although in some ways
even
farther removed than the courts of appeals from the parties whose cases
it hears, has the resources, the committed personnel, and the
institutional
integrity to give a greater hope that it is a repository of justice
than
intermediate federal courts. Justice always? Of course
not.
But in comparison to the courts of appeals, it is a better bet.
Concern about justice is the
surest way to
counter evil. We must seek judges who believe passionately in the
importance of individualized justice. We should seek judges who
understand
that it is their job to decide cases, and who do not become
obsessed
with docket management goals. We should elect politicians who are
willing at least to balance concerns for justice with concerns for
their
own electability. We should promote openness among those who are
closest to injustices, so that their revulsion is comprehended by those
in a position to remedy the situation. We should safeguard the
right
of the media to report injustices, including enabling the media to
access
persons and documents that allow a more complete understanding of the
government's
role. Above all, we should strive to keep the "truth channels"
open
and avoid being swept away by the tides
of temporary enthusiasms.
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