The Other War at Home

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."