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."