Perspective From the Bench:
Judge James P. Gray Takes on the War on Drugs

Interview by Jessica Clark

he failure of existing drug laws becomes more and more apparent each year. Despite steady drops in the level of crime nationwide, sentencing and incarceration rates rose dramatically throughout the 1990s, draining state coffers and leading to gross racial inequities in the criminal justice system. Today, the drug war continues, unabated. But now, many legal professionals, including those whose political sympathies place them in the conservative end of the political spectrum, are finding it ethically difficult to enforce the mandates of these laws.

In California, Judge James P. Gray, who presides over the civil trial calendar for the Superior Court of Orange County, has encouraged other judges to step up and make their dissenting positions known. The impact of the war on drugs, argues Judge Gray, has been a multifaceted one, and one which has dramatically compromised the integrity of the American criminal justice system. LiP's editor-at-large, Jessica Clark, spoke with Judge Gray about this campaign, and recent skirmishes in the ever-expanding War on Drugs.

It's been more than a year since the publication of your book, Why Our Drug Laws Have Failed and What We Can Do About It. How has the legal community responded to your call to repudiate current drug policies?

Judge Gray: For several reasons, the legal community has been responding slowly, far behind the voters and the communities at large with regard to the issue of drug policy. Every voters' referendum in every state in the last eight years dealing with treatment instead of incarceration, and allowing medical doctors to recommend marijuana to their patients, has passed by a large margin.

Judges, who are naturally reticent to call attention to themselves in this area, are beginning to be more vocal as well. I subtitled my book "A Judicial Indictment of the War on Drugs" because I was able to cite 40 judges from all around the country [who were], in some way, decrying our present drug policy. And half of these judges were speaking publicly on the issue through my book for the first time. Since the book was published, many more judges, as well as other public officials, have added their voices to this cry.

You've advocated the repeal of drug prohibitions as a method to cut off funding sources for terrorists like Osama bin Laden. This runs counter to the administration's attempts to link the "war on drugs" and the "war on terror." How have critics responded to your stance?

No one, to my knowledge, has countered my statement that our laws of drug prohibition are funding terrorists like Osama bin Laden, all around the world. The reason for this, in my view, is that the statement is coldly accurate. As long as the demand is here for these often dangerous drugs, the demand will be met by drug lords, and tens-of-thousands of other people who are willing to take some risks in selling small amounts of drugs for large amounts of money.

Our government is attempting to employ the same "Just Say No" approach in this area, but people everywhere are beginning to understand that that approach is a failure. If we want to destroy the "Golden Goose" of terrorism, we will work to de-profitize these drugs and bring them back under the law.

Does the RAVE Act of 2002, as it's phrased in pending legislation, violate the civil liberties of landlords and event organizers?

The Rave Act of 2002 is another in a series of attempts to fit the "square peg into the round hole." What we are doing with regard to drug prohibition is demonstrably not working, so our government continues in its attempts to come up with something even more radical to make it work.

These attempts always include the destruction of personal liberties by greater governmental intrusion into the lives of our people. Drug testing, eviction from public housing, driver's license forfeitures, so-called "zero tolerance" laws, increased government searches and snooping, asset forfeitures, and mandatory minimum sentences are additional examples.

Nevertheless, it is widely agreed that we are not in better shape today than we were five years ago with regard to the critical issue of drug use and abuse, and all of the crime and misery that accompany them. And, as I demonstrated in my book in the chapter on the erosion of civil liberties, the war on drugs has resulted in a greater loss of our civil liberties than anything else in our country's history.

If I were to rewrite that chapter, I would subtitle it "Where's Paul Revere?" Why is no one spreading the alarm?

In recent weeks and months, the fight to decriminalize marijuana in the US, UK, and Canada has intensified. What would it take to create "decriminalization zones" that would permit, with stipulations, the consumption of marijuana, but not violate federal law in this country?

Many countries in the world are decriminalizing marijuana, and even other drugs, because they are realizing that these drugs, dangerous as they can sometimes be, are made even more dangerous by being forced underground. Making the drugs illegal has not resulted in their becoming unavailable. We cannot even keep drugs out of our prisons, so how can we expect to keep them off the streets of our cities and towns?

In fact, the term "controlled substances" is the biggest oxymoron of our time. These drugs are less controlled than virtually any other commercial product one could name. However, to follow the lead of these "radical" countries, like England, Canada and Switzerland, and establish so-called "decriminalization zones," would still be a direct violation of our federal laws. What we really should do is what we did when we finally repealed alcohol prohibition, which was to allow each state to adopt a program that it feels would be best for its people; leaving the federal government only to assist each state to enforce its chosen laws. That would conform with the 9th and 10th Amendments of the US Constitution, as well as numbers of the Federalist Papers.

But in so doing, we would run directly counter to the best interests of an enormous federal bureaucracy. Do not look to the federal government for any leadership in this area.

How can activists from across the political spectrum work together to push through commensense reforms of current drug policy?

The issue of drug policy reform runs the entire length of the political spectrum. For example, I have received a standing ovation by giving basically the same speech to both the ACLU, on the one hand, and the Young Republicans of Orange County, on the other. This failed and hopeless policy has caused major and unnecessary harm in virtually every area one can imagine. But once people realize that it is okay to discuss drug policy, and that just because one does so, that person does not condone drug use and/or abuse, we will change away from our present policy.

People can help by organizing public forums in their religious organizations, chambers of commerce, service clubs, alumni groups, or anything else … Drug policy reform is the most critical issue facing our country today, but once we legitimize the discussion, we will change it. Any change would be better than what we are doing today.

08.24.02

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