Pubdate: Sun, 13 Jan 2002
Source: American Prospect, The (US)
Copyright: 2002 The American Prospect, Inc.
Contact:  http://www.americanprospect.com/
Details: http://www.mapinc.org/media/1072
Author: Emily Parsons

WHY OUR DRUG LAWS HAVE FAILED AND WHAT WE CAN DO ABOUT IT: A JUDICIAL 
INDICTMENT OF THE WAR ON DRUGS

By Judge James P. Gray. Temple
University Press, 272 pages, $19.95

One day about eight years ago, Judge James P. Gray held a press 
conference on the steps of the Santa Ana courthouse where he served 
and still serves as a California superior-court trial judge.

He spoke out that day against U.S. drug policy, referring to the war 
on drugs as "our biggest failure" and calling for the legalization of 
marijuana, cocaine, and heroin.

Many in his community, from the sheriff ("What was this guy 
smoking?") to the deputy district attorney ("Did he seem to be in his 
right mind?") expressed outrage.

Some questioned the judge's integrity, and Gray conceded that his 
speaking out would probably keep him from being considered for future 
judicial appointments. But he had seen too much; he felt compelled to 
take a stand.

And his war on the war on drugs continues: The judge has now issued a 
"judicial indictment" in Why Our Drug Laws Have Failed and What We 
Can Do about It. Gray, a Republican, allies himself with other 
conservatives, such as William F. Buckley, Jr., and former Secretary 
of State George P. Shultz, who have called for a wider debate on 
America's antidrug policies. And he quotes letters written by nearly 
two dozen other judges who he says have "seen firsthand that we [are] 
wasting unimaginable amounts of our tax dollars, increasing crime and 
despair, and severely and unnecessarily harming people's lives by our 
failed drug polic[ies]."

Those policies, writes Gray, are a "program of massive prisons, 
demonization of drug users, and prohibition of debate about our 
options." Making drugs illegal, he argues, amounts to an attempt "to 
repeal the law of supply and demand," an impossible task. The 
prohibition raises the price of the goods, and with so much money to 
be made, peasants abroad grow poppy or coca because it is their most 
profitable crop; dealers risk their lives to sell drugs for huge 
profits; and prisons are built to house more criminals.

And prison construction and inmate upkeep turn out to be big 
business, too. Citing California's experience, Gray notes that longer 
sentences and skyrocketing construction rates combine to mean higher 
costs to the taxpayer. He recalls a startling moment that occurred 
after one of his lectures.

An accountant in the audience told me that he had penciled out the 
figures I gave on prison expansion.

His arithmetic revealed that if the rate of imprisonment of the past 
twenty years were to continue, by the year 2020 literally everyone in 
California would be either in prison or running one. And California 
ranks only twelfth nationally in prison incarceration rates.

Gray also decries the way that antidrug efforts have led to an 
erosion of civil liberties and due process over the last 30 years.

For example, asset-forfeiture laws allow police to confiscate 
property or money from criminals in order to obstruct further 
criminal activity.

But in practice, 80 percent of people whose assets are taken by the 
authorities aren't charged with a crime.

Most of the $590 million seized in California between 1986 and 1993 
came from citizens who, according to Gray, were "never intended by 
Congress to be the subjects of these actions." He tells the story of 
a couple who lost their home because their grandson was caught on the 
premises with marijuana and cocaine.

A judge told them: "You are probably only guilty of being too 
tolerant of a criminal grandson." Asset forfeiture also creates a 
stream of unchecked income for law enforcement. Gray cites alarming 
cases of "secret bank accounts," cars seized for personal use, and 
even diverted funds that were used to settle a sexual-harassment suit 
against police detectives. "The fact remains," writes Gray, "that 
large amounts of cash inevitably corrupt." In the second half of the 
book, Gray takes on the harder question: What to do about it? 
Moderating his stance from arguments that he's made in public, Gray 
does not call explicitly for drug legalization. He notes that a 
change in the drug laws could have unexpected consequences, including 
an increase in drug use. But he sees no hope in "zero tolerance" 
approaches. He argues that "there are numbers of distinct and very 
workable options to the extremes of zero tolerance on the one hand 
and drug legalization on the other." And a potential increase in drug 
use, he says, "would be more than counterbalanced by the enormous 
benefits we would see in health, crime reduction, tax savings, and 
international goodwill" if drug policies were liberalized. Engaging 
in a wider debate about drug laws, Gray writes, "does not mean that 
we condone drug use or abuse." He recognizes the need to confront 
drug abuse as a health problem and a social ill. Rehabilitation 
programs are an obvious need; Gray also discusses drug maintenance 
(allowing addicts a monitored drug intake that neither gets them high 
nor forces them to suffer withdrawal) and controlled distribution (in 
which government-regulated drugs are sold like a bottle of bourbon). 
And he maintains that any U.S. drug policy needs to include "a major 
educational component."

What would a government-regulated market for marijuana, cocaine, and 
heroin look like? Judge Gray suggests that generically packaged drugs 
could be sold by pharmacists, with a steep tax that would fund 
rehabilitation programs and drug education.

In Holland, where drugs are decriminalized, the use of hard drugs 
fell significantly between 1979 and 1994, according to Gray. His 
point is that "it is much easier to control, regulate, and police a 
legal market than an illegal one. In the short term, no one knows 
just which policies will work best. Why not consider getting the 
federal government out of drug policy and let states make their own 
laws? "All of our federal agencies are addicted to the funding 
provided by the War on Drugs, and they do not want to give up that 
money," Gray says. "I have learned over twenty years of experience 
that although the War on Drugs makes for good politics, it makes for 
terrible government. The War on Drugs is about a lot of things, but 
only rarely is it really about drugs."

With the current war on terrorism, the politics surrounding drug 
enforcement have become more complicated. Many U.S. officials are 
arguing to step up the war on both fronts. "Drugs and terrorism go 
hand in hand," a former Drug Enforcement Administration (DEA) 
official said recently. "Anyone who uses drugs is absolutely funding 
terrorists, enabling them to carry out horrific crimes against 
innocent and defenseless human beings." The National Family 
Partnership held its annual antidrug event in October with the theme 
"Saying NO to drugs is saying NO to terrorism." But if one accepts 
the economic argument of Gray and others that the best way to destroy 
the drug rackets is to remove the huge profit incentives, the link 
between the two wars doesn't hold. Also, legitimate questions can be 
raised about the cost of maintaining both efforts.

The federal government spends $19.2 billion a year fighting drugs.

It shouldn't be a hard sell that some of that money might be better 
spent fighting terrorist networks directly.

Certainly, Gray is right in suggesting it could be better spent in 
drug rehabilitation programs than in the never-ending drive for 
interdiction.

This fall, the Justice Department instructed the DEA to investigate 
physicians practicing euthanasia in Oregon and clinics that provide 
marijuana to AIDS and cancer patients in California; both practices 
were approved in state ballots.

Abandoning what Gray calls the "one-size-fits-all approach" to drug 
policy would mean allowing drug laws to vary from state to state. "It 
is clear after all these many years that our federal government does 
not have the right answers," writes Gray. "It is time for other, more 
local governments to retake command."
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