Judge Jim Gray - Articles 2

Regulate marijuana like wine - by Judge Jim Gray

SUNDAY, APRIL 10, 2011

In my public discussions about our nation's failed and hopeless policy of marijuana prohibition, I often say that Proposition 19 actually won the election last November, but we will simply be delaying implementation for two years.

I say that for two reasons. First, Proposition 19 was so successful in legitimizing the discussion about the failure of marijuana prohibition both statewide and nationwide, and even worldwide, that people for the first time have actually started to think seriously about the issue. And that is really all we need, because what we are doing today simply doesn't make sense.

Second, in some of my debates on Proposition 19, numbers of people, including several chiefs of police, stated publicly that they had no problem treating marijuana like alcohol, but they did not like some specific provisions of Proposition 19 and therefore opposed it. Many voters felt exactly the same way.

So since November, quite a few people involved in marijuana drug law reform have been working to craft a new initiative, the Regulate Marijuana like Wine Act of 2012, and its basic provisions are as follows:

All California laws that prohibit marijuana possession, use, sales, distribution, cultivation, etc. by people who are 21 and older would be repealed, except for those pertaining to driving a motor vehicle under the influence of marijuana; using or being impaired by marijuana in public or in the workplace; the use, possession, sales, etc. of marijuana by people younger than 21; providing, transferring or selling marijuana to a person younger than 21; or any laws or regulations regarding medical marijuana as set forth by Proposition 215 and its related statutes. All of those laws and regulations would expressly remain in effect.

The proposal then breaks down what we now call marijuana into two classifications. The first is marijuana with a THC or "potency" level of 3% or higher, which would be governed by regulations, taxes and fees that use the wine industry as a model. But, importantly enough, the act would not permit state, county or city governments to use their taxing, zoning or licensing authority as a means to thwart the provisions of the initiative, unless those regulations would also be applicable to the wine industry.

Marijuana with a THC level of less than 3%. would be classified as hemp, and would be governed by the same regulations, taxes and fees that use the cotton industry as a model. Of course the hemp industry goes back thousands of years, such that in ancient Greek the word for "canvas" was the same word as "cannabis," or marijuana. Similarly, the plantations owned by George Washington, Thomas Jefferson and many other planters grew large crops of hemp, which were used for things like rope, gunny sacks and coarse cloth.

Since the colonial period the uses of hemp have been greatly expanded. For example, today manufacturers can get four times the amount of paper pulp from an acre of hemp as they can from an acre of trees. Furthermore, the hemp crop can be raised in one season of about eight months, while it takes about 20 years to grow the trees. This means that the paper pulp industry in the northwest United States could be reclaimed, along with all of the jobs, revenues and taxes that this would entail.

The proposal would also prohibit all commercial advertising of the sales, distribution and use of marijuana, except for medical marijuana and products made from industrial hemp. This would go a long way in taking the glamour out of marijuana, especially for children.

After Holland decriminalized marijuana back in the 1970s, its minister of health stated that they had only half the marijuana usage per capita in their country as we do in ours - for both adults and for teenagers! And he went on to explain why by saying that "we have succeeded in making pot boring." A system in which marijuana is no longer sold illegally and also is not advertised commercially will achieve the same results.

Another main purpose of the initiative would be to deprive Mexican drug cartels, juvenile street gangs and other thugs of large amounts of money, while at the same time providing significant amounts of tax revenues to city, county and state governments to use for things like fixing potholes and educating children.

In addition, many medical and legal professionals believe that in many ways marijuana is actually less harmful than my drug of choice, alcohol. So if adults choose to use marijuana instead of alcohol, the governments, as a matter of freedom and liberty, should not be able to prohibit them from doing so.

Yes, the use, possession, growing and sale of marijuana and hemp would still be illegal under federal law, and the proposal recognizes that fact. But if the federal government still wants to enforce its laws of marijuana prohibition it will be forced to do so alone, because the proposal would prohibit anyone working for or contracting with any of our state, county or city governments from cooperating with any such investigations, prosecutions, punishments or forfeitures, as long as the subjects were acting within the provisions of the proposal.

So what are your thoughts? This proposal is still only in draft form, so give it some consideration. We would both appreciate and benefit from your suggestions and comments.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Why Our Drug Laws Have Failed and What We Can Do About It: A Judicial Indictment of the War on Drugs" (Temple University Press, 2001), and can be contacted at JudgeJimGray@sbcglobal.net or http://www.JudgeJimGray.com.

Interview - Judge James P. Gray - The Newport Beach resident talks about America's War on Drugs
By Jim Wood

Pubdate: June , 2001 Vol.10 No7
Source: Coast Magazine Author: Jim Wood

Judge Jim Gray Press Confrence

As America's War on Drugs is increasingly being questioned, few have been doubting its effectiveness longer, or with greater insight, than Newport Beach resident Judge James P. Gray. Now journalists from Walter Cronkite to Arianna Huffington are praising his new book Why Our Drug Laws Have Failed and What You Can Do About It - A Judicial Indictment of the War on Drugs. Judge Gray was appointed to the Orange County trial court by Governor George Deukmejian in 1983. In 1998, he was a candidate for congress in the Republican primary but was defeated by former-Congressman Robert Dornan, who in turn lost to Democratic Rep. Loretta Sanchez.
First, what is your evidence that America's drug laws are failing?
Whenever I give a talk on the subject - and I've given hundreds of them here in Orange County - I start with a simple question and ask for a show of hands: "Regarding the War on Drugs, are we in better shape now than five years ago?" Rarely do any hands go up, and if they do it's usually because of the increased emphasis on education and rehabilitation. Then I ask if anyone expects things to improve over the next five years. And again, few if any hands go up. Would any business continue to spend tens of billions of dollars in an effort most agree is futile? Especially when there are proven alternatives out there? The War on Drugs is failing and we're not looking at alternatives.

What are those alternatives?

First of all, a Blue Ribbon commission should be established at the national level with people from all sides of the issue contribution. Among other issues, this commission might evaluate the drug maintenance program that Switzerland has undertaken.

Which is?

In six pilot cities, a doctor, a nurse and a social worker went into high-use areas and literally administered a "maintenance-level" dose of pharmacy-quality heroin to chronic users at a low price. Soon changes started occurring. Crime rates plummeted because there was no need for thefts, prostitution or mugging to support a habit. Usage also went down. Fewer users were selling to support their habit. In addition, because of the carefully-monitored program, reductions were also noted in the rates of HIV, hepatitis and overdosing. Meanwhile, employment rates for these people in the six areas increased. When the program was expanded to 20 cities, a group of moralists forced a plebiscite. The result was the drug maintenance program was approved by more that 70% of the voters.

As it stands now, what is our nation's policy toward drugs?

One, massive prisons. We have more people incarcerated than any other nation; and it's very expensive. It's an industry in itself. Two, we "demonize" those who use drugs and this is wrong. Many who fall into a drug habit can be reached. Sending Robert Downey, Jr. to prison for drug use makes no more sense than locking up Betty Ford for using alcohol. Now if it's Darryl Strawberry and he uses drugs while driving, that's a different matter; he should do time. A third policy America seems to have is to prohibit discussion of its failing War on Drugs. Too often, the reaction is, "Oh, you are in favor of legalizing drugs." And that's absurd. No one, absolutely no one is even remotely talking of increasing young people's access to harmful drugs. But what we are doing simply isn't working. The was things are now, young people tell me it's easier for them to find marijuana or cocaine that it is alcohol.

From your experience, what stands between America's War on Drugs and a rational drug policy?

Simple, it's economics. It's not only the Drug Enforcement Administration's nearly $20 billion annual budget but government agencies of every kind receive extra funding for drug enforcement - from the Bureau of Land Management to the Bureau of Indian Affairs. The War on Drugs isn't winnable, but it's fundable. And these agencies are addicted to the money. Until Congress sees that the votes are there, nothing is going to change. And things must change; it is impossible to have both a free society and a drug-free society. We will have drugs; either with drug lords or without them. The answer is to hold people accountable for their actions, as we do with alcohol. And let's get rid of this enormous and expensive bureaucracy. If you really thing about it, most drug related problems stem from drug prohibition; not drug use. The tragedy of the plane shot down in Peru was a result of our frantic effort to prohibit drugs; not their use.

But by voting in favor of propositions 215 (Medical Marijuana) and 36, didn't California and nine other states say it was time for at least some change in the War on Drugs?

Yes, but many laws relating to drugs are federally, not state enforced. And while that show that the people are ahead of the politicians, it also indicates that powerful lobbies and other forces have so far been able to block the will of the people. For example, when President Clinton's "Drug Czar" Gen. Barry McCaffrey was in Orange County I offered to debate him. His reply was that he didn't have time to debate, just give a talk. So I went to his speech and asked him why California's vote in favor of medical marijuana was still being outlawed. His answer was that he didn't believe in it and he would "continue to use federal law to prohibit its use."

When you speak of "powerful lobbies and other forces," are you implying corruption; that our governments is in collusion with foreign drug cartels?

I'm definitely not a conspiritorist, but we've got to realize that a small amount of drugs produces a large amount of money. Millions, billions of dollars are involved in that sale of this stuff. And how much corruption can a million dollars buy? Lots. We've all read of corrupt border guards, police departments; even the lives of children are corrupted by the, as I say, small amounts of drugs that bring large amounts of money. Certainly the governments of Columbia, Bolivia and Peru have all been corrupted by the market for illegal drugs. And Mexico is close to corruption.

So what can an ordinary citizen do to alter America's drug policy?

The obvious is to open minds as to alternatives. Also, carefully monitor media reports; are drug problems the result of use - or from prohibition? To consider an alternative drug policy doesn't imply someone condones drug use. The list of those wanting change includes former Secretary of State George Shultz, economist Dr. Milton Friedman, conservative columnist William F. Buckley, Jr., and veteran CBS journalist Walter Cronkite. We must discuss the alternatives; learn about them and write our Congressmen. When our representatives know that votes are there, they'll act. A sample letter is in the back of my book. Most definitely, there is still a long way to go before changes will occur. But I know someday they'll happen. Something this wrong, this counterproductive and this expensive can't continue much longer. It's like the young man who boasted that his grandmother started walking five miles a day at age 70. But regretfully, when she turned 77, he hadn't the faintest idea where she was. Likewise, America has passed drug laws, spend billions of dollars, lost numerous civil liberties, 20 years later, we haven't the faintest idea of where we are. There is definitely a better way of dealing with this problem.

What is your reaction to the Supreme Court's recent decision regarding medical marijuana?

This problem could be resolved by a single stroke of President George W. Bush's pen: Even in light of the decision, he could make marijuana a Schedule II drug which would allow medical doctors to prescribe it to their patients. Cocaine and morphine are already Schedule II drugs. Why not marijuana? This is absurd. In reality, the Supreme Court's decision had little to say about the effectiveness of a certain drug, namely marijuana. It dealt mostly with legalities - it over state law, and denied a "medical necessity" defense to sick people who believe marijuana is an effective medicine.

What about the "As for nomination of John Walters as the federal government's Drug Czar?

I consider it a gigantic step backward. His history is one of opposing drug treatment - which has been shown to work - and instead he favors more incarceration and increased interdiction at our borders - which have been proven not to work. Unfortunately, America is in for more of the same in regard to the War on Drugs unless we the people make our intentions known to our Congressmen as clearly as possible.

Judge James Gray's book, Why Our Drug Laws Have Failed and What We Can Do About it - A Judicial Indictment of the War on Drugs, is available for order from Temple University Press through leading bookstores and online sources, including Amazon.com

Austin American-Statesman

Austin American-Statesman - Sunday, May 6, 2001

Drug war needs a new direction

Has the drug war made the nation's substance-abuse problem better than five years ago? Asked by a visiting drug-policy reformer to raise hands if they thought so, a local crowd didn't move a muscle.

That's the response wherever he speaks, said California Superior Court Judge James Gray, a self-labeled conservative Republican doing battle with the drug war's most obvious follies. He finds a clear message in the silence.

For 30 years, the nation has ineptly warred against substance abuse, only to watch the problem explode. Drugs have never been cheaper, stronger or more readily available. Gray says the average teen-ager can buy a pharmacopia of illegal drugs more easily than a six-pack of beer. Missionaries have become "collateral damage" in battles fought over Peru. Colombia and Mexico writhe in the throes of what Gray calls their "drug money problem." And just when you think it can't get worse, it gets worse.

As Gray spoke in Austin to the Drug Policy Forum of Texas, the Bush administration was searching for a drug czar to replace Gen. Barry McCaffrey. The rumored choice is John Walters, a drug warrior from the previous Bush presidency.

Walters is an old-school hard-liner. He unabashedly favors military solutions over therapeutic ones, opposes aid for infection-containment measures such as needle exchanges and thinks the costly drug war has suffered from "indifference and neglect." He contends that the battle he once knew has transmogrified into "a war on punishment and prisons."

Reformers like Gray, and other who advocate digging at root causes of drug use, draw sneer from Walters. "The therapy-only lobby is alive and well and more dogmatic than ever." wrote Walters, a former deputy director of the Office of National Drug Control Policy. He now heads the Philanthropic Foundation of voluntary action against social problems.
Gray's solutions, based largely on research done in Europe and by the Rand research group, are likely to sound sensible to many and find little favor with Walters. The approach he outlined at the Hyatt Regency late last month focused on three points.

1) Forget "zero tolerance" and recognize that for a tiny percentage of the population, drug use will persist. Offer drug treatment to users who want it. Stress prevention. And don't use prisons (where drug use is a nagging problem) to punish addiction. The "prision industrial complex" will oppose this view, said Gray, a former prosecutor.

2) Forget the "tough-on-crime sound bites" and use the power of the purse. The federal government could withhold funds from states that fail to address drug problems. The process would resemble the "decertification" of countries that abet drug importation. Taxation, too, could be used to reduce the power of drug cartels.

3) Don't wage war on children. Make sure that from early on, children grasp the dangers of drug use, but teach them that if they're in trouble, they can count on adults to help. Don't set up a system that encourages adults to use children as couriers and sales agents or that makes drug selling the most lucrative work available for young people.

Judge James P. Gray is the author of "Why Our Drug Laws Have Failed and What We Can Do About It," from Temple University Press. Additional information on drug policy reform is available from the Drug Policy Forum of Texas in Houston ( www.dpft.org) and the Stepping Stones Coalition of Austin, (512) 303-3348

Brown declines to welcome judge

Newshawk: Al Robison
Pubdate: Wed., April 11, 2001
Source: Houston Chronicle (TX)
Author: Thom Marshall

Judge Jim Gray

This is about a couple of former drug warriors who now hold down jobs they got elected to -- a judge in California and a mayor in Texas -- and how only one of them listened to what the other had to say.
James Gray has been a judge in Orange County for the past 16 years. Before that, he was a federal prosecutor who, for awhile, held the record for the nation's largest heroin bust. But nine years ago he came out publicly against the drug war and all the damage he has seen it cause.
He will be coming to our town in a couple of weeks to speak at a lunch sponsored by the Drug Policy Forum of Texas, and he is the author of a new book due to hit stores this month, Why Our Drug Laws Have Failed and What We Can Do About It: A Judicial Indictment of the War on Drugs.
Lee Brown is the mayor of Houston, where he also was police chief a few years ago. In between those two jobs he worked for a little while as drug
czar, top banana of the drug war being waged by this Great Land.

As mayor, many of his duties are ceremonial. He generally is considered a logical choice to welcome distinguished visitors to the city. And so DPFT officials extended Brown an invitation to sit at the head table and to welcome and introduce Gray at that lunch meeting on April 26.

Brown doesn't stick around

Last time Brown and Gray both appeared at a public meeting regarding drug policy issues was seven years ago in Cambridge, Mass. Brown was keynote speaker at an event billed as "Crime, Drugs, Health & Prohibition II: The Great Harvard Drug Debate."

It was a speech that hit all the traditional drug-war buttons and at one point, Brown declared: "to me and to the Clinton Administration, drug use is
among the important domestic issues that our nation faces."

So it must have seemed a bit odd when he didn't stick around at such a prestigious gathering to defend the drug war.

"I am truly filled with sorrow," Gray said when starting his response to Brown's remarks, "that we were not able to engage in a dialogue with Dr.
Brown. 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."

Gray noted that it was difficult to find people to debate in favor of the drug war and said he had not heard the position "expressed as eloquently" as Brown had expressed it in the preceding minutes that day.

"And so," Gray said, "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."

You can find the speech made by Brown at this Harvard Law School event, as well as the comments Gray made that Brown wasn't there to hear by going on an Internet search engine and asking for Darkening Shades of the Drug War:
Brown vs. Gray.

Drug-war debates avoided

In the seven years since that event, the drug war has filled a great many new prisons with users and dealers and yet drugs remain plentiful and
profitable. Increasing numbers of people are becoming convinced the drug war is lost and must end.

Meanwhile, former drug czar Mayor Brown has maintained a low profile on drug issues and other officials known to favor continuing the drug war still avoid debate.

But public awareness has been advanced by other means, most recently by the hit movie Traffic. And also by books.

In a phone conversation the other day, Gray said his book differs from others written about the nation's failed drug war in that he discusses
viable options for combatting drug use problems. And his book also contains comments from some 40 other judges around the country who concur the war must end.

Gray said people whose names you will recognize have endorsed his book, including Houston native and retired national TV news anchor Walter
Cronkite, former U.S. Secretary of State George Shultz, and Nobel laureate economist Milton Friedman.

A DPFT official said Tuesday that Mayor Brown, due to prior commitments, will be unable to accept the invitation to welcome Judge Gray.

The Cronkite Report: The Drug Dilemma - War or Peace

(Epilogue/Proposal by Walter Cronkite.)

Walter Cronkite

Every American was shocked when Robert McNamara, one of the master architects of the Vietnam War, acknowledged that not only did he believe the war was, "wrong, terribly wrong", but that he thought so at the very time he was helping to wage it. That's a mistake we must not make in this 10th year of America's all-out War on Drugs.
It's surely time for this nation to stop flying blind, stop accepting the assurances of politicians and other officials, that if we only keep doing what we are doing, -- add a little more cash, break down a few more doors,lock up a few more Jan Warrens and Nicole Richardsons -- then we will see the light at the end of the tunnel. Victory will be ours.
Tonight we have seen a war that in it's broad outline is not working. And we've seen some less war-like ideas that appear to hold promise. We've raised more questions than we've answered, because that's where the Drug War stands today. We're a confused people, desperately in need of answers and leadership.Legalization seems to many like too dangerous an experiment. To others, the War on Drugs, as is now conducted, seems inhumane and too costly. Is there a middle ground?
Well, it seems to this reporter, that the time has come for President Clinton to do what President Hoover did when Prohibition was tearing the nation apart: Appoint a bipartisan commission of distinguished citizens,perhaps including some of the people we heard tonight -- a blue-ribbon panel to reappraise our drug policy right down to its very core, a commission with full investigative authority and the prestige and power to override bureaucratic concerns and political considerations.
Such a commission could help us focus our thinking, escape the clichés of the Drug War in favor of scientific fact, more rationally analyze the real scope of the problem, answer the questions that bedevil us, and present a comprehensive drug policy for the future.
We cannot go into tomorrow with the same formulas that are failing today. We must not blindly add to the body count and the terrible cost of the War on Drugs, only to learn from another Robert McNamara thirty years from now that what we've been doing is, "wrong, terribly wrong."

Walter Cronkite
June 20, 1995

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

Judge Jim 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.
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 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 harm 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 California 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 focused upon. By following 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 resulted 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 more 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. 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 them 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 Attorney 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 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 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." Similarly, 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, unwinnable war which is tearing the fabric of society to shreds."

Attorney General Janet Reno was quoted awhile ago as acknowledging 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 of 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 our 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 altematives 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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