DARKENING SHADES OF THE DRUG WAR: BROWN VS. GRAY

Address of The Honorable James P. Gray

Orange County Superior Court Judge, State of California, at the Crime, Drugs, Health & Prohibition II Conference

Harvard Law School, May 21, 1994

I don't always get such a nice introduction. Actually, it reminds me of one I received a little while ago -- which was a lot shorter -- and basically was along the lines of: "I know you all want to hear the latest dope from the courthouse, so here's Judge Gray". [Laughter.]

But I am here speaking from my own personal standpoint with much appreciation of what has happened so far today as well as, I confess, a great deal of sorrow and some invigoration. I am appreciative of the Clinton Administration allowing Dr. Brown to come and share some thoughts with us. And I think that is very important and it's certainly clearly important to get and maintain a dialogue from all facets of this very multifaceted, difficult and complex problem.

I am truly filled with sorrow, however, that we were not able to engage in a dialogue with Dr. Brown. [applause.] He left -- he came here and spoke with us and he listed his thoughts -- which I would like to address in a moment -- and then regretfully was not able to stay and respond to, I think, some very legitimate questions. Because he listed eight myths, as he called them, and I believe that all eight are...easily rebutted. [Applause.] And so I am invigorated feeling the way I do -- a person who is in an elected position in Orange County -- again a fairly conservative area -- I'm up for election in 1996 and I'm ready for it. But I have heard lots of arguments. I have heard people say we should have debates and actually now, in my county, I'm having a great deal of difficulty finding anyone to come and take the alternative position. And in the last two years, I have not -- myself -- heard the alternative position expressed as eloquently as I heard it today. And so I am invigorated to believe that we're going to be successful, because that's the best they can do and there simply is a response to everything they bring up. [Applause.]

What is it? What is it that are these eight myths? Well, the first is, as you recall: Nothing is getting better -- and he says that is a myth. The problem with that is it's just the focus on the wrong area. He is right if he's talking about education, because we are making progress with regard to education. So it is a myth that nothing is getting better. The problem is the education is not married to [our] present system...which is, in effect, prisons. Whichever option we choose, everyone agrees we will continue to utilize education as a part of it.

He did not, however, ask the real question and that is: How many people here feel that we, in our beloved country, are in better shape today, with regard to this critical issue of drug use and abuse and all of the crime and misery that goes with it, than we were five years ago? How many people feel that way? I never get anybody raising their hands. We all know that we are not in better shape today. And if that's true -- and I fully believe that you will agree with me, that it's true -- we have no legitimate expectation of being in better shape next year than we are in today, unless we change our approach. So the correct question is: Are we in better shape today than we were five years ago? And had he asked that question, I think that we could have been on our way to a legitimate discussion.

Number two. He said [it was a myth] that current drug policy is making things worse...He then said we have to address violence and HIV areas, but he went on to talk about, very generally, families, less productivity, the community issues and the rest of that. Let's address those and talk about, for example, who the role models in today's society -- in our inner cities and probably everywhere else. And this can be addressed because the role models -- as I'm sure we all know -- are not people who work all day, go to school at night in order to attempt to better him or herself. The role models for our inner city youth, and probably everywhere else, are who? Are sellers of drugs. And that is something that is truly challenging and damaging our very fabric: our families, our employment, communities.

And if we are telling our people -- which we are, today -- you probably can do nothing in your life that will bring you as much money as you can get, by selling drugs, that is corruptive. It is simply undercutting our work ethic. It is undercutting our communities. These are the questions that we need to ask and not just the mundane, quickly once-over: "Let's talk about our families and crack babies". Because every crack baby that is born in the country today -- and there are lots of them -- are born under our present system. And we need to look at that as well. In fact, let's really look at prisons -- which is the issue in our society today. And what are we doing? The San Francisco Chronicle published an article on May 4, saying that we have 286 percent greater numbers of women in the California state prison system today than we did ten years ago. I am in the juvenile court now, in Orange County. I deal, on a daily basis, with children that are abused and neglected. About a quarter to 30 percent of these babies are there because their mothers are in prison. Every time we arrest a woman, 80 percent of those are either pregnant or have small children. So we are taking the children to the state. We are paying the money for that and we are disrupting the family. These are issues that we must address, and I don't hear people talking about that. It's time that we focus attention upon it.

Number three. The myth, supposedly, is that enforcement adds to the problem. Does enforcement add to the problem? Without a doubt. We are slitting our wrists. [Dr. Brown] says that enforcement is reducing the supply and drives up the price -- and he's absolutely right, and that is part of the problem. The problem here is not the drugs: It is the money. The problem is the gangsters that are caused by the fact that these drugs bring in such a great amount of money. So it's time to address that. And instead of issuing a decree, supposedly to repeal the law of supply and demand, have we focused upon the fact that the very worst thing that could happen in the United States of America is to have us all of a sudden successful in closing off our borders?

The very worst thing that could happen to our country would be to close off our borders and keep all of this opium out of our country. Why? The law of supply and demand. The demand will remain the same and if the demand is there it will be met. How will it be met? Anybody that has a high school chemistry education can, in his garage or bathroom, manufacturer illicit chemical drugs, Ice and all of these other synthetic drugs that go along with it. And then we have no quality control whatsoever and will really be in trouble.

Has anybody ever seen a person who took one dose of a bad batch of synthetic drugs? It does enormous damage. The lucky ones die. These are the problems that we will visit upon ourselves. Every time we're successful in seizing another ton of cocaine, we raise the price and directly result in more burglaries, more purse snatchings, more damage to our society. And so, yes, in my view, the problem is not the police. The problem is the system. The system is not working, it's time to recognize it and look at our options.

Number four was: There was not massive support for change. It depends how you ask the question. He says that the Gallup Poll says -- and I'll take it at face value -- 80 percent of the people are not in favor of the legalization of drugs. There is a group in Orange County, they're called the Drug Use is Life Abuse -- very overstated, by the way. There's a lot of caffeine on this table here and that's being used -- I don't believe I am abusing my life to drink iced tea. But this group is out there, passing out polls. And two years ago, they came out with a poll asking just that: How many of you people feel that legalizing drugs is a good or not a good idea? 80 percent of the people said: No, legalizing drugs is not a good idea. We in Orange County, however, are discussing this issue. I'm speaking with Kiwanis clubs and all of the rest; and so are lots of other people discussing the area. One year after [the first poll], 63 percent of the people said: No, legalization of drugs is not a good idea. We made a 17 percent gain in public opinion in one year. If we were to pass that poll now, we'd be in the majority, with the same type of gain.

It's time that we address this and discuss it. And endemic in that, critically and fundamentally important -- is that we get across to our fellow citizens: It's OK to talk about this issue. Just because we discuss our options does not mean that we condone drug usage. If we can get that message alone across, we will have been successful, because everything else will fall. If we can only convince our people that just because we're discussing this issue, just because we would even employ a different option, does not mean that we condone drug abuse -- we will be successful. That's all we need to do.

Number five. Legalizing or decriminalizing drugs will eliminate violence -- and he says this is a myth. Of course it's a myth. It is a straw man. We will never be able to get rid of violence in our society. We have always had it, we always will. We will always have crime, certainly. We will always have drug abuse, certainly. But [Prohibition] contributes mightily to violence in our society. Are you aware, as Ethan Nadelmann will tell us: After the repeal of alcohol prohibition, what happened to violent crime in our society? It went down 65 percent in the next year and continued to go down for every year thereafter until the beginning of the Second World War. I am convinced the same thing will happen in our country, once we come to our senses and employ a different system. [Applause.]

Then, another straw man myth. Legalizing is free of costs. Of course not. Any system that we employ will have its problems. Any system that I can come up with -- you, we as a country can come up with -- will have some problems. Holland has realized that, and other harm reduction countries. They realize these drugs are harmful. I certainly believe that heroin, cocaine and marijuana are dangerous drugs. I believe that very strongly. I don't take them and I never will, regardless of what we do. But let's try to recognize that and reduce, minimize the harm that will necessarily flow from this. But let's not stand quiet when someone presents a straw man saying: "Aw, you're still going to have problems under your system". Because of course we are -- let's try to minimize those problems instead of simply setting up straw men.

Number seven? There are excellent foreign models -- and he called that a myth. Well, he mentions in Holland a problem with foreigners -- and he's right. At the last Drug Policy Foundation conference, a year ago last November, there were two men from the [Dutch] Ministry of Health who I cornered -- because I wanted to educate myself about the system that Holland is using -- and I said, after they explained to me their system -- which I was enormously impressed with -- I asked them: "What are the two biggest problems you have in Holland today?" They looked at me and said: "Number one is we are a small country, [and] about a third of the people that use drugs in Holland are foreigners. They come here to have a good time and we don't know what to do about it". [H]owever, to equate that with our country -- so much larger -- is simply silly. We will not have that problem if we were to go to a system like Holland's. By the way, the second largest problem they had really embarrassed me deeply. They'll embarrass you too. He looked me in the eye and said: "The second biggest problem we have is the government of the United States of America -- they will not leave us alone!" What difference does it make to us how Holland addresses this enormous problem domestically in their own internal affairs? We are heavy handed and we ought to behave ourselves. [Applause.] To be honest with you, I don't know what is happening in Italy today. And if anyone does, maybe we can all help each other. I do know that Italy changes -- it depends what time it is as to which system they have. But it's difficult to get statistics. But I think that that is something that we should educate ourselves about and try to help each other...

The eighth personal myth is that this is just a personal matter. Do I need to respond? Yes, it is a personal matter and if the government is going to eliminate everything that is wrong and harmful in our society, as we heard this morning, they will eliminate power tools, they certainly should eliminate donuts -- a very, very harmful substance -- and we can continue going on. Obviously, mother's milk is a gateway drug and there we go. [Laughter.]

So what we need to ask is: Are prisons a myth? We in the State of California have indeed added 13 new state prisons to our state prison system in the last ten years, reaching now to the number of 28. We have 13 more on the drawing boards, ten of [will have] their doors open by the turn of the century. Today one out of every six people that work today for the state of California, work for the Department of Corrections. It is a growing industry. An accountant came up to me a little while ago and said: "You know, if we continue going forward in the future -- as we have in the last twenty years in the state of California -- by the year 2020, literally everybody in the state of California will literally be in prison or running one." And he is absolutely right.

Finally, as we say, it is time to investigate the possibility of change. Mike mentioned the Hoover Resolution, which was founded back in February of last year by such flaming radicals as Milton Friedman, George Schultz, Joe McNamara -- the former police chief of San Jose -- numbers of medical doctors, an Oakland high school principal and others. The resolution says what I believe is irrefutable. Namely, what we're doing today under the criminal justice system is not working. We have substantial medical and social problems presented by the drug abuse in our society. It is time to address them with medical and social solutions. We beseech our president and congress to have, to empower one final neutral commission to investigate this from all aspects. Law enforcement, of course. From a religious standpoint, from a community standpoint, social, medical or anywhere else. We ask that you also sign the resolution, not necessarily today. If you want copies, this beautiful lady here in the green has some copies. Take them home with you, circulate them. If you don't have one, you can look in the present Drug Policy Foundation newsletter. It simply recommends that we investigate the possibility of change. If what we're doing is not working, it's time to look into change. There is a slogan that I believe is instructive, and that slogan is not: "Just say no" -- although I really buy into that, because "no" should be spelled K-N-O-W. [Laughter/applause.]

What I would do instead is utilize the following slogan: If you want to keep getting what you're getting, keep doing what you're doing. And what we're doing now isn't working and we're getting a whole lot of grief, and it's time to look into the possibility of change. If people are not interested in investigating our options -- be it legalization, decriminalization, medicalization, regulated distribution -- OK, fine and well. Then let's at least investigate what we are doing now, which is prohibition. Let's at least investigate prohibition. And if people do not even agree to investigate what we're doing now, I'm afraid I must ask: Why not? What do you have to be afraid of? It's time to look into this, to better ourselves and our beloved country. We can't do any worse. Thank you very much. [Applause.]