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October 1, 2007 - Daily Pilot (CA)

OpEd: It's A Gray Area: Current Drug Policies Inefficient

By James P. Gray, Orange County Superior Court judge

Let us face facts and let us not mince words: Our nation's policy of drug prohibition is not working.

This policy is actually causing much more harm than the prohibited drugs themselves would ever be causing on their own -- here and everywhere else around the world.

And the irony is that we could literally bulldoze the entire country of Colombia, even taking Ecuador and Peru with it, and that would not make the slightest difference with our drug problems in our country.


Because if the demand is here, the demand will be met. And if the demand is not met by drugs from Colombia, Ecuador or Peru, it will be met by drugs from Afghanistan, Nigeria or Thailand. Or even here in California!

Today, marijuana is the No. 1 crop in California (number two is grapes, if you care). In other words, we have failed to repeal the law of supply and demand, and amazingly enough continue to express surprise at that result. And what is worse, we do not even let ourselves discuss the subject!

In normal life if something does not work, we recognize that reality, explore our options and try something different.

But even though virtually no one will say that our war on drugs is working, we continue to spend ever more money and other resources on something that has been proven not to work. "If spending lots of money didn't work, we'll just have to spend much more" seems to be the philosophy.

The evidence of the failure of the war on drugs is all around us. Today, illicit drugs almost literally could not be made more available if we tried.

Look at it this way: People in prison can get all of the drugs they want. It costs more money, but they are fully available.

For example, Charles Manson was transferred from Corcoran State Prison in California to a different facility a few years ago because he was found to be selling drugs from his prison cell. And he was in solitary confinement!

So if we cannot keep drugs out of our prisons, what makes us think that we can keep them off the streets of any of our towns or cities?

Every day in our nation's newspapers there are articles about violent deaths being caused not by drugs, but by drug money. With great fanfare we destroyed the Medellin Cartel. But did it make any difference? No, within just a few months the Cali Cartel was up and running. Now we have destroyed the Cali Cartel. Has it made any difference? Again the answer is no. Illicit drugs are just as big and successful a business as ever.

As an example, just a few years ago the head of the United States Drug Enforcement Administration was quoted as saying that at any one time about 200 tons of cocaine are being warehoused in Mexico within three miles of the U.S. border just waiting to be smuggled into our country to any place where there happens to be a shortage.

In addition, even though our government has spent about $470 billion on "Plan Colombia" with our military actions and spraying of herbicides in rural areas, the cost of Colombian cocaine in our country today is only about one-third of what is was in the 1980s. Of course, we are also seeing the same results in Afghanistan with heroin. And in case you have not noticed, violence if not actual warfare caused by drug money has broken out in Mexico along our border, and has literally spilled over the border into the southwest United States.

Even when the police are successful in seizing a large quantity of drugs, that only temporarily reduces the supply, which increases the price of the drugs and in turn increases the incentives for people to sell them. The end result of this economic reality is that the policy of drug prohibition is doomed to failure, which means that "victory" increasingly is simply being defined as slowing down the pace of defeat.

When I discuss this issue publicly, the biggest argument I hear in favor of maintaining our policy of drug prohibition, "with all of its defects," is that changing it would "send the wrong message to our children."

So what about our children?

Actually, our policy of drug prohibition is literally putting our children in harm's way for each of two deeply disturbing reasons. Firstly, it is easier today for children to obtain any illicit drug, if they want to, than it is alcohol. Why? Because illicit drug dealers make money by furnishing it to them.

You might say that no one wants teenage children to become addicted to cocaine, but some people make a great deal of money if that happens.

As a result, lots of drug dealers offer free samples of illicit drugs to our children, even on their school campuses. Of course, that does not happen with regard to other sometimes dangerous and addicting drugs like alcohol and tobacco.


Because when we make drugs illegal, we give up all of our ability to regulate and control them. That means that by default the strength, quantities and purity levels of the drugs that are being sold and the age restrictions for the buyers are exclusively controlled by the illicit drug dealers, and they don't ask for ID.

Secondly, and I saw this happen continually when I was a federal prosecutor, and later when I was presiding over a juvenile court calendar, every day adult drug sellers recruit our children to help them in their scurrilous business.

For a relatively small amount of money and the threat of violence, adult drug dealers can have all the young people they want to use as "go-fers," lookouts and couriers, etc.

And then just as night follows day, as soon as the reliability of the young people has been established, the adults trust them to sell small amounts of drugs in their communities.

They do this so that the youngsters make more money, and so do the adults. So then ask yourself this question: When teenagers sell drugs in their communities, to whom do they sell? Us? No, they will naturally sell to their teenage peers, thus recruiting more and more young people to a lifestyle of drug usage and drug selling. It is not a pretty sight, and it is all directly caused by our failed and hopeless policy of Drug Prohibition.

Yes, once we finally came to our senses and repealed alcohol prohibition we were still left with problems of alcohol misuse, abuse and addiction. But at least we were no longer plagued with the Al Capones and their violence and corruption, as well as the medical problems presented by the lack of quality control for the "bathtub gin."

What should be our plan instead? In my view, we should resume using the criminal justice system in the way it was designed: to hold people accountable for what they do, instead of what they put into their bodies. Along those lines, it makes as much sense to me to put that 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 alcohol addiction.

It is the same thing; it is a medical problem. But if Robert Downey, Jr., Betty Ford or you or I drive a motor vehicle while under the influence of any of these mind-altering drugs, that will still be an offense. Why is that? Because now those people would by their actions be putting the safety of other people at risk. When we finally are able to make that distinction in our approach, we will begin to make real progress in this area.

So what action should we take now? The first thing to do is for our president to appoint a blue-ribbon commission to investigate the possibility of change -- as publicly as possible. Then in my view the first substantive action we should take is to treat marijuana like alcohol. What would happen if we were to do that? Three things, and all of them positive. Firstly, we taxpayers in California would literally save about a billion dollars every year that we now spend in a futile effort to eradicate marijuana, and to prosecute and incarcerate non-violent marijuana users.

Secondly, we could tax the stuff, and raise about $1.5 billion every year for the state coffers. So those two things alone would change the budget deficit in California by about $2.5 billion every year. And that is money that we should use for drug education and drug treatment, which will result in decreased problem usage of all drugs. But the third thing would be more important than the first two combined, because this we would be making marijuana less available for our children than it is today, as we have already discussed.

So what is not to like?

Eighteenth-century English jurist William Blackstone said that "The law is the embodiment of the moral sentiment of the people," and I certainly agree with him.

But just because we change our approach to this serious problem does not at all mean we condone drug abuse, and our children will understand that concept. There are better ways of accomplishing our goals of reducing drug abuse and all of the crime, misery and corruption that accompany it. In fact, we will discuss some of the programs that are actually working in other countries around the world in this column next week. So stay tuned.

In the meantime, let us take off our muzzles, and give ourselves permission to discuss the subject of drug policy openly, fully and honestly. We have nowhere to go but forward.

James P. Gray is an Orange County Superior Court judge and author of the book, "Why Our Drug Laws Have Failed and What We Can Do About It -- A Judicial Indictment Of The War On Drugs."

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