California Courts Commentary: Drugs and the Law

by James P. Gray

Orange County Superior Court

November, 1993

On April 8, 1992, I 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 to combat drug use and abuse in our society, and all of the crime and misery that accompany them, is not working. Fortunately, however, we have options.

On February 26, 1993, I was one of a group of nineteen concerned citizens 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 handle 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 to conduct this investigation as publicly and fully as possible, and then recommend revisions of the drug laws of these United States in order to reduce the harm being caused by our current policies.

The original signers of the Resolution include Dr. Milton Friedman, the Nobel laureate professor of economics; Dr. Joseph D. 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 high school principal 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 and San Jose: Orange County Supervisor Harriet M. Wieder; the Sheriff of San Francisco; the Central Conference of American Rabbis; the Board of Directors of the California Academy of Family Physicians; all 23 chaplains at Riker's Island Prison in New York City; and more than two thousand other members of the legal, medical, law enforcement, entertainment, business and education communities and concerned citizens and taxpayers.

By pursuing our present course, we have made cocaine the most lucrative crop in the history of the world. 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 or drugs the most lucrative activity that most of our people can engage in. 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 directly resulted in the continual deterioration of the relationship between the police and the communities that they are attempting to service.

The 'war on drugs' in our country in many ways has become war on our own people, especially our minorities. Our approach has directly resulted in the exportation of more money from our shores than any other single cause, except for oil. Indeed, as a result of this drug money, we have exported narco terrorism to the rest of the world.  Our approach has demonstrably resulted in the erosion of our civil liberties set forth in the Bill of Rights.

As judges, virtually all of us have our own stories of how corruption from drug monies has touched the Criminal Justice System. Over the last several decades, we have proved the sheer impossibility of preventing the sale of drugs for large amounts of money. The Criminal Justice System simply cannot prevail against this reality.

Even though street drugs are 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 changing this failed approach.

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 editor-in-chief, entitled 'Fighting 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 Elliot 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 new approach. Certainly the new Administration in Washington should seize the moment for a fresh and comprehensive look at the drug laws."

What we are doing is not working. As judges, we are at the helm of a sinking ship, and our citizens are not aware of the hopelessness of the situation. Our group requests that California's judges, who are aware of the magnitude of the problem, sign the Resolution and go on record as recommending the Investigation of viable alternatives to the failed "War on Drugs."