U.S. District Judge B. Lynn Winmill told a criminal justice reform conference at Concordia University School of Law in Boise today, “From my observations of 28 years having watched the ‘War on Drugs,’ we have seen nothing but, I think, an abysmal failure.” He said, “We certainly have not reduced drug consumption. Whatever has happened, it has not been worth the price that we have paid.”

With mandatory minimum sentences for many years tying the hands of judges and prosecutors, he said, the casualties have largely been low-level drug offenders who were associated with large quantities of drugs – couriers, truck drivers, addicts hired to unload trucks. “Kingpins are almost immune, in the same way that generals and commanders in chief are typically immune during wars,” Winmill said, “and if they are brought down, what happens is that they’re immediately replaced.”

The judge, who spoke on a panel on federal sentencing reform that also included law professors, experts, federal public defenders and a high-ranking Justice Department official, said, “I think the war on drugs is unwinnable. I think the idea of a truce is probably the best that we can hope for.”

The problem, he said, is that “drugs and drug usage is not perceived as an illness, it’s perceived as a choice and an immoral act. I think it simply misapprehends the nature of drug addiction and drug problems.” Winmill said the rise of oxycontin addiction has “driven home to each of us that it can happen to anyone.” He noted that he knew of a judge’s wife who became addicted after treatment for a medical condition, and ended up serving time.

Plus, though African-Americans and Hispanics use drugs at about the same rate as the general population, Winmill said, “The incarceration rate for African-Americans and Hispanics is off the charts. Now, is that implicit bias, is it overt bias, is it a result of a policy from Congress that reflects bias? I don’t know. But I think it certainly is something we need to think long and hard about.”

“Clearly, the answer lies with Congress,” said Winmill, who’s been a U.S. District judge for nearly 21 years and the chief judge for the District of Idaho for the past 17 years. Mandatory minimums and sentencing guidelines and how they are calculated is the place to start, he said.

“I’m a believer in the guidelines, and that comes from my own experience,” he said. He recalled how as a state court judge in 1995, he had an individual before him charged with drug dealing, with fairly large quantities of drugs involved, but it was a first offense. He was contemplating sentencing the offender to two years fixed prison time and five years indeterminate. “My concern, if it’s a longer sentence, you’re simply institutionalizing the individual and graduating from a B.A. to a Ph.D in crime,” he said. But before he could sentence that offender, he was appointed to the federal court. Two months later, he heard that the offender had been sentenced to a fixed term of 10 years in prison – eight years longer than the sentence would have been had the original judge handed it down. Winmill said federal sentencing guidelines help avoid that kind of “happenstance” in sentencing.

He said, “What we’re trying to accomplish is not sending people to prison, but controlling and reducing crime.”

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