SENTENCING WHILE STONED:
Why A Judge's Private Use Of Marijuana May Call His Sentencing Capacity Into Question

By SHERRY F. COLB

Wednesday, May. 22, 2002

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 "[j]udges 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 Possess

Like 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 Me

I 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.

Why, 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 Defendants

Why 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."


Sherry F. Colb is a visiting professor at University of Pennsylvania and a professor at Rutgers Law School.

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