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No, We Must Reassess Our Drug Policy
By Judge James P. Gray

James P. Gray is a former federal prosecutor in Los Angeles and criminal defense attorney in the United States Navy, and is now a trial judge in the Orange County Superior Court.
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On April 8,1992, 1 did something unusual for a trial judge: I held a news conference in the plaza behind the Santa Ana Courthouse. At that time, I publicly set forth my conclusions that what we are doing through the Criminal Justice System with regard to our attempts to combat drug use and abuse in our society, and all of the crime and misery that accompany them, is not working.

Since that time, I have discussed this subject with many different groups of people, and when I do, I always ask for a show of hands as to how many people feel that our country Is In a better condition today with regard to this critical problem then we were five years ago. Almost never do any people raise their hands. Then I remind them that if this is true, and if we continue to pursue the same approach. no one can reasonably expect that we will be in a better condition next year than we are in today.

Fortunately, however, we have options. So now we must simply investigate our options and come up with a more workable and effective approach.

Before I begin my general discussion of this matter, however, I would like to address nine threshold points so that we can better understand each other

1. All of us are on the same side on this issue, we all are trying to reduce drug use and abuse, and all of the crime and misery that accompany them. We may simply disagree upon the best option to accomplish that goal.

2. We must have more responsibility and accountability in our society, not less; and the courts, the police and-the prison system have an important part to play in bringing these back to our society.

3. Without a doubt, heroin and cocaine are dangerous and sometimes addicting drugs. But so also are alcohol and tobacco dangerous and sometimes addicting drugs, and virtually everyone agrees that we would only compound their haffn by making them illegal.

4. Just because people discuss various options about how best to combat drug use and abuse, or even because they believe that we should employ a different option, does not mean that these people condone drug use or abuse.

5. Education in this area is critically important and has definitely had some positive results; however, it will continue to be used effectively no matter which option we employ,

6. Law Enforcement has been doing a magnificent job in attempting to enforce our current approach. However, the problem is with the approach - not the police, the courts and the rest of the Criminal Justice System.

7. We have never had a drug-free society, and we never will. Recognizing this fact, we should try to employ an approach which will reduce the overall harm that flows from drug use and abuse.

8. No matter which option we employ, there will always be an important role to be played in it by the Criminal Justice System.

9. This is a complex and multifaceted problem area, and does not beneficially lend itself to little sound bites and slogans. However, If we adopt a slogan, we should use something like: "if you want to keep gettin'what you're gettin', keep doin' what you're doin'.

Well, what have we been doin' in our country with regard to drug use and abuse? For the past decades, we have been attempting to combat this critical problem with a program of massive incarceration of our people. However, it is becoming increasingly clear to everyone that this program has been and is a massive failure. And we have gone broke in the process. We have built 12 new state prisons in the State of California in the past 10 years, at the cost of hundreds of millions of dollars. Yet even so, today our jails and prisons are well beyond being overcrowded. Now, an additional 12 new state prisons are on the drawing board, with many of them scheduled to be completed by the turn of the century. This has already been shown not to work. Some people say that we can just as effectively address crime by building new prisons as we can effectively address a fatal disease by building new graveyards. In so many ways they are right.

Today, almost one in every five people who work for the State of California works for the Department of Corrections. We are cutting back upon our education, closing many of our libraries, and denying medical treatment for drug addiction to large numbers of our people who desire and need it. At the same time we are using our scarce resources to incarcerate people who use and sell drugs at the cost of about $25,000 per year per person. One accountant recently calculated that if we continue on the same course in the future as we have for the last twenty years, by the year 2020, literally everyone in the State of California will either be in prison, or running one.

In addition, by pursuing this approach, we have made cocaine the most lucrative product in the history of the world. We have also made marijuana the most lucrative crop in the State of California, easily outdistancing the number two crop, which is corn. Make no mistake, any people who traffic In human misery by selling these drugs for their own profit should be sent to prison. However, would it not be better to have a system that did not so strongly encourage this activfty?

On February 26, 1993, 1 was one of a group of nineteen concerned cftlzens that met at the Hoover Institution on the campus of Stanford University and unanimously passed a resolution which recommends that our country investigate the possibility of change In the way we choose to combat our drug problems. The Resolution, which recommends that these medical and social problems be treated with medical and social solutions, is printed separately herein. It further recommends that one final blue ribbon commission be immediately empowered by the President and Congress to conduct this investigation as publicly and fully as possible, and then to recommend revisions of the drug laws of these United States in order to reduce the harm being caused by out current policies.

The original signers of the Resolution include Dr. Milton Friedman, the Nobel laureate professor of economics; Dr. Joseph K. McNamara, author and former Chief of Police of San Jose; George Shultz, former Secretary of State; Kurt L. Schmoke, Mayor of the City of Baltimore; Reverends Leonard B. Jackson and J. D. Moore of the First A.M.E. Church of South Central Los Angeles; a former high school principal from the Oakland area, and several medical doctors.

Since that meeting, the Resolution has been signed by numbers of judges and justices in California as well as other state and federal judges around the country; the Mayors of San Francisco, Oakland, Upland and San Jose; the Chiefs of Police of San Francisco, Oakland and San Jose; State Senators Marion Berguson and Robert Presley; Orange County Supervisors Harriet Wieder and Thomas Riley; the Sheriff of San Francisco; the Board of Supervisors of Mendocino County; the Central Conference of American Rabbis; Stanley Marcus, co-founder of Neiman-Marcus Stores; the Board of Directors of the California Academy of Family Physicians; Abigail Van Buren ("Dear AW; all 23 chaplains at RlkeFs Island Prison in Now York City; and thousands of other members of the legal, medical, law enforcement, entertainment, business and education communities and concerned citizens and taxpayers.

The credibility of this neutral Commission is a matter of considerable importance. Its members should include representatives from law enforcement, medical and drug treatment professionals, former addicts, members of the clergy, university scholars, etc. Hopefully the Commission would be chaired by someone like General Colin Powell, former Surgeon General C. Everett Koop, or someone of similar stature.

This is obviously a large area of inquiry, and many of the issues are interrelated. However, the Commission should address historically how our country chose to employ our present approach. Professors Charles H. Whitebread and Richard J. Bonnie published an extensive Inquiry into the legal history of American marijuana prohibition in the October 1970 Issue of the Virginia Law Review. As a judge, I am embarrassed to read of citations to the Congressional Record that show that issues of public health and public safety were not even considered by Congress in making this substance illegal. Instead, the motivation appears to have been racism and fear of economic competition. The Commission should consider and publish these facts.

The Commission should also investigate what we have done in our country that has been successful and not successful - and what other countries around the world have done as well. It should inquire into what has caused the upsurge in drug usage, crime, and court and prison overcrowding in our country that has not been present to such a degree in other countries. It should Investigate the fact that between 1980 and 1993, the number of women imprisoned in Calffomia Increased 450%, from 1316 to 7232, with a large majority being non-violent drug offenders, and 80% of whom have children under the age of six years old. Then it should consider the effect this incarceration has had upon the upbringing of these children.

There are so many other areas in which our present approach has impacted upon all of our people which we have not focussed upon. By follovang our present policies, we have funneled about 70 billion dollars per year of untaxed revenue Into organized crime. We have undermined the work ethic in our society by making the trafficking of these drugs the most lucrative activity in which most of our people can engage. This has directly resulted in our youths, both in our inner cities and everywhere else, having drug sellers as their role models instead of people who work hard and pursue an education. Our approach has also directly msufted in the continual deterioration of the relationship between the police and the communities they are attempting to serve.

The 'War on Drugs' in our country in many ways has become a war upon our own people, especially our minorities, who have been incarcerated in vastly disproportionate numbers. Our present approach has directly resulted in the exportation of mom money from our shores than any other single cause, except for oil. Indeed, as a result of this drug money, we have actually exported narco-terrorism to the rest of the world. Our approach has also resulted in a crime being committed upon our people by depriving clean needles to those who are drug addicted - thus exacerbaflng the AIDS epidemic. And our approach has materially and demonstrably resulted In the erosion of our civil liberties set forth in the Bill of Rights.

By our history over the last several decades, we have proved that there is a sheer impossibility of preventing consenting adults in a free society from selling small amounts of drugs for large amounts of money. The Criminal Justice System simply cannot prevail against this reality. Even though these street drugs are today as illegal as we can make them under our statutes and our Constitution, they are fully available in any quantity, governed only by price. It truly Is time for us to investigate the possibility of changing away from this failed approach.

Some people raise a legitimate concern that if we were to go to a different system then large numbers of additional people would become addicted to drugs. This very Issue has been researched before by numerous neutral Investigative groups, such as New York Mayor La Guardia Committee in 1944; President Nixon's National Commission on Marijuana and Drug Abuse in 1973; California Attomey General Van de Kamp's Research Advisory Panel in 1989; as well as an in-depth book entitled Licit and Illicit Drugs which was published by the editors of Consumer Reports Magazine in 1972. None of these neutral bodies felt that there would be a material increase In usage, and they further went on to say that even if there might be, we still should go away from the Criminal Justice System approach because of the enormous benefits that our society would receive.

In addition, on June 13, 1994. the RAND Corporation released a study about the most effective way to reduce cocaine use in the nation. According to this highly-regarded think tank, drug treatment programs are seven times more cost effective in reducing cocaine use than law enforcement efforts. It also stated that drug treatment is 11 times more effective than attempting to interdict the drug at our borders, and 23 times more effective than attempting to control the drug supply overseas. The evidence is all around us. The only real question remaining is, is anybody reading it?

So where do we go from here? Today the political reality still is that our "leaders" do not believe there are enough votes for the investigation of possible change. However, this political reality is changing. Several years ago, the San Francisco Chronicle aptly editorialized that with regard to our nation's drug problem, "the cure is worse than the disease". On April 26, 1993, U.S. News and World Report published an editorial by Its edftor-in-chief, entitled mfighting the Right Drug War. It concludes with the following statement:

"If President Clinton lacks the political courage to change the old failed program and needs protective cover, let him at least appoint an independent commission charged with investigating prevention and treatment and instituting a sweeping new program. Dr. Kildare, rather than Eliot Ness, is the role model for banishing our deepest sickness."

On May 11, 1993, the Los Angeles Times editorialized that "Perhaps the political climate is becoming more receptive to a now approach. Certainly the new Administration in Washington should seize the moment for a fresh and comprehensive look at the drug laws." Similariy, in the July/August 1993 issue of American Jails. which is the magazine of the American Jail Association, San Francisco Sheriff Michael Hennessey wrote a feature article which decries the fact that our nation has, for no beneficial purpose, become "hopelessly addicted" to the ever-increasing incarceration of drug offenders. He made comparisons to alcohol prohibition and to the war in Vietnam, and then said that "We have once again committed ourselves to a costly, unvanable war which is tearing the fabric of society to shreds."

Even Dear Abby has stated publicly in her column on May 3, 1994 that "Just as bootleggers were forced out of business In 1933 when Prohibition was repealed, making the sale of liquor legal (thus eliminating racketeering), the legalization of drugs would put drug dealers out of business. It also would guarantee govemment approved quality, and the tax on drugs would provide an ongoing source of revenue for drug-education programs. An added plus, There would be far less crowding in our prisons due to dnig-miated crimes. lrs something to consider."

Attomey General Janet Reno was quoted awhile ago as acknolwedging that the Government would have to seize 70% of the illegal drugs in this country before a program of drug interdiction would be successful. However, no one seriously suggests that we actually interdict more than 10% of these drugs, and a more realistic assessment tells us that the number is closer to about 5%. Accordingly, for every ton on cocaine we seize, we easily fail to seize somewhere between 9 and 19 other tons - and the seizure rate for drug monies is even lower. As a result. all of our efforts merely represent an acceptable "cost of doing business for organized crime. Food markets accept higher rates of spoilage for fruits and vegetables.

What we are doing is not working. As judges, we are at the helm of a sinking ship, and out citizens are really still not aware of the hopelessness of the situation. Our group requests our leaders and citizens who are aware of the magnitude of the problem to sign the Resolution and go on record as recommending the investigation of viable aftematives to the failed "War on Drugs". There must be and is a better way. This fact is so clear, that I make two promises without hesitation. The first is that our country will adopt a materially different approach in order to combat this critical problem, because what we are doing now is so clearly not working. It is only a question of when this important change will be made. The second promise is that five years after we have adopted this different approach, we will all look back with shock and dismay that we could have stayed with our present failed system for so long. It is time we get started.

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