It fell to Judge Sporkin to sentence the young man who had been invited by undercover agents to do business at that location. They had even given him street directions to 1600 Pennsylvania Ave., which was far from his usual hangouts. They also had made sure that he sold them enough crack to guarantee a 10-year mandatory-minimum sentence. Sporkin says the whole thing was basically entrapment, but his hands were tied by the law. The judge was a captive in his own court.

So he gave the kid 10 years. The boy fainted dead away on the spot.

Last year, shortly after Sporkin retired from the bench, a TV reporter called to say the kid had been released, having served 10 years in federal prison. "When I think now about what I did, ech, I feel awful," he says. "When I think about so many cases. With mandatory-minimum laws you can't do a thing, but even cases under the sentencing guidelines are unbelievable. They make you do ungodly things in the drug war if you're a judge."

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Sporkin had served as CIA director Bill Casey's trusted general counsel; before that, he had made a big name for himself as chief enforcer for the Securities and Exchange Commission. So he was no softie when Ronald Reagan called him to the bench in 1986. But he did not expect to be made an "unwilling executioner," as he puts it.

Sporkin is far from alone among judges in his sense of anguish and frustration, but few Americans seem to be aware of these black-robed dissidents at the heart of the drug war. Maybe that's because judges are quite unused to trying to plead their case, and we hardly know what to make of it when they try.

America has generally been tough on crime and tough on drugs, but it has never been this tough on judges. For the first 200 years of the republic, federal trial judges like Sporkin had almost complete discretion in sentencing convicted criminals. While they could not exceed the maximum penalty under law, they could reduce or suspend sentences virtually at will, except under a few statutes, with no review by an appeals court.

As everyone knows, the Constitution guarantees the right to trial by jury of your peers. But nowhere does it mention a right to be sentenced by a judge. Apparently the Framers of the Constitution assumed that the distinguished individuals appointed by the president and confirmed by the Senate to serve as judges with life tenure would be a safe bet to hand down appropriate sentences in individual cases. Too bad they never wrote that down.

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