Pubdate: Sun, 5 Oct 2008
Source: Daily Pilot (Costa Mesa, CA)
Column: It's A Gray Area
Copyright: 2008 Daily Pilot
Author: James P. Gray
Note: James P. Gray is a judge of the Orange County Superior Court, 
the author of Wearing the Robe - the Art and Responsibilities of 
Judging in Today's Courts (Square One Press, 2008)
Referenced: Editorial: Prison Is For Drug Dealers, Not Customers
Bookmark: (Drug Courts)
Bookmark: (Treatment)


I was gratified to see that the editorial board of the Daily Pilot
endorsed Proposition 5, which is the Non-Violent Offender's
Rehabilitation Act, with the headline "Prison is for drug dealers, not

They are right, and I commend them for their insight and

As I have said in previous columns, it makes as much sense to me to
put the gifted actor Robert Downey Jr. in jail for his cocaine
addiction, and he certainly seems to have one, as it would to have put
Betty Ford in jail for her addiction to alcohol.

Drug addictions are medical problems, and they are better addressed by
health-care professionals than by policemen.

But if Robert Downey Jr., Betty Ford, or you or I drive a motor
vehicle while impaired by any of these drugs, or engage in any other
offense while under the influence, bring them to the criminal justice

What's the difference?

Because now by their actions these people are putting our safety at
risk. So the answer is to hold people accountable for what they do,
but not for what they put into their bodies.

In my mind, most of the people who support Proposition 5 on the ballot
this November agree with that fundamental concept.

Face it: You or I could come home any evening and drink 10 martinis
and, if we are 21 or older, we would not be violating the law.

Obviously this would not be a healthy thing for us to do, but as long
as we are not putting anyone else's safety at risk, society wisely has
left those problems to be addressed by drug education and treatment.

Why have we not done the same thing with regard to people who use
other mind-altering and sometimes addictive substances?

Our great country now leads the world in the incarceration of its

And a large number of them are in custody only because they either
possessed or were under the influence of some illicit drug.

In fact, a ridiculously high number of people are put back into
custody only because they were found to have been possessing or using
drugs while on parole.

That is an enormous waste of time, tax money and lives.

And it doesn't begin to address the many families who are placed onto
welfare or children into foster care because their parents and
breadwinners are taken away for such things as smoking marijuana or
using other drugs.

Proposition 5 will go a long way in giving us judges more discretion
to place these people into treatment programs instead of jail.
Honestly, they should not be in court or jail in the first place
simply for the usage of drugs.

Former arch-conservative Republican Assemblyman Pat Nolan from
Glendale used to favor putting lots of people in prison for all kinds
of reasons until he was himself convicted of an election fraud and
sentenced to prison.

But now he is quoted as saying that there are many too many people in
prison who should not be there.

And then he goes on to say that "We should reserve our prison space
for people we are afraid of, not people we're mad at."

Our jails and prisons are hugely expensive, and all are seriously
overcrowded, so I suggest we listen to people like Nolan.

So who is opposed to Proposition 5?

Many good people who have been led to believe incarceration is the
answer to these problems.

We all need to take it upon ourselves to spread the word that this
approach simply doesn't work.

Of course, people who are in the prison construction business, and
people who are in the prison guard's union are also against
Proposition 5, but that opposition is logically governed by their own
economic self-interest.

And I acknowledge that some of my fellow judges are also against
Proposition 5 as well.

But for the most part they are still of the belief that drug abuse is
a problem that should be first addressed by the police, and then the
abusers should be forced into treatment after being placed into one of
our drug courts.

So for various reasons they do not want to give up that power over
non-violent offenders.

But since drug courts are really expensive to administer, wouldn't it
be better to spend these scarce resources on the drug-addicted people
who are actually causing harm to others, and leave those who aren't
harming anybody else alone?

But there is another group that has formally expressed opposition that
I hope will, upon reflection, reconsider its point of view. And that
is the City Council of Newport Beach.

As best I understand it, the council members are fearful that if
Proposition 5 passes then more non-violent drug offenders might
possibly come to their city for treatment. I request them to look
inward and see if they would really trade having people actually lose
their liberty and be sent to prison on the off chance that they might
otherwise wind up in a sober-living facility in Newport. That is not
to say that there should not be a limit to the numbers of people in
treatment in any particular location, but do they really feel that
this is the right way to keep those numbers down?

So I encourage you to support Proposition 5. It provides additional
funding and other resources for drug treatment. It will reduce the
number of non-violent drug offenders in our jails and prisons, and it
also give judges more discretion to "call the shots" in determining
how these drug users should be handled. And, yes, it will reduce the
penalties for the possession of less than an ounce of marijuana.

But most importantly, it will also help judges and other health-care
professionals to attack the disease of addiction head on, and thereby
reduce crime and the expenses to the taxpayer. And along the way it
will also allow us to devote more money and prosecutorial attention to
address the actions of the violent offenders who are causing so much
harm to us all.
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