Just Say No

Our drug laws have failed. We’ve lost the so-called War on Drugs, and now it is time for a coherent and common-sense approach to the drug problem.

I say this not as an ivory-tower idealist but based on my experience as a former federal prosecutor in Los Angeles, a criminal defense attorney in Navy’s Judge Advocate General Corps, and a trial judge in Orange County since 1983. Because my judicial duties have required me to enforce this failed system, I eventually could not keep quiet about it any longer.

Since 1992 I’ve been speaking out publicly, not only about our failed policy but also about the fact that we have viable alternatives to it. Street drugs are clearly harmful; however, we must stop increasing the harm they do.

Therefore, I propose we must, as a country, investigate the possibility of change and be mindful of the following five points:

First, just because people discuss alternatives to our current drug policy, or even because they believe we should adopt one or more of these options, does not mean that they condone drug use or abuse.

Second, there is no such thing as having both a free society, and a drug-free society. Put another way, dangerous as they are, these drugs are here to stay, and we should work to discover how best to reduce the harm they will cause in our communities.

Third, the failure of our present drug laws is not the fault of law enforcement. These dedicated people have an extremely difficult and dangerous job, and they are doing it much better that any of us have a right to expect. Law enforcement is no more at fault for the failure of drug prohibition than was Elliott Ness at fault for the failure of alcohol prohibition.

Fourth, it is far easier and more effective to control a legal market than an illegal one. Under our current policy the only laws that are enforced about the use and sale of illicit drugs are those imposed by the drug traffickers. As such, we have seen a collapse of the rule of law with regard to quality control, sales to minors, and regulations of the marketplace. The better approach would be to bring these dangerous drugs back under the law.

And fifth, no matter what options we utilize, they will have some problems.

Drug prohibition has its own unique and harmful consequences as well. For example, when drug dealers shoot police officers, witnesses, innocent bystanders, or even each other, that is a drug prohibition problem rather than a drug problem. Today, when the distributors of Coors and Budweiser have a problem with each other, they take it to court, but the distributors of illicit substances take their problems to the streets. Similarly, when drug users are forced to prostitute themselves or steal to get money to buy artificially expensive illicit drugs from the criminal underworld, that is a drug-prohibition problem much more that a drug problem. So, too, is the diversion of billions of dollars from the prosecution of violent street crime and fraud to the prosecution of hundreds of thousands of non-violent drug sellers and millions of drug users a distinct problem of drug prohibition. And this does not even begin to address the violence and corruption inflicted on countries such as Colombia and Mexico as a direct result of the obscene quantities of money gathered from the sale of illicit drugs.

Unfortunately, it is easy to become a demagogue about the issue of drug policy, “standing up for our children” by advocating ever more strict criminal sentences for drug dealers. It is also easy to denigrate everyone who attempts to explore alternatives to the War on Drugs as a “drug legalizer” who doesn’t care if a twelve-year-old child buys cocaine in a vending machine across the street from his or her junior high school. However, the benefits of drug treatment, as well as the corruption and other major harmful effects directly inflicted on our society by illegal drug money, drug impurities, and requiring people to associate with criminals instead of medical professionals to maintain their drug habits, takes much longer to discuss. And anyone who attempts to do so in a 20-second sound bite sounds like a wimp.

Fortunately, many people are beginning to agree that our War on Drugs is not working, but still they feel a deep frustration that no viable options have presented themselves. Former Secretary of State George Shultz succinctly voices this view when he says, “I have a zero tolerance attitude, but I am still searching for the best way of implementing it.” Well, there’s some good news: We have viable choices between the two extremes of zero tolerance on the one hand and drug legalization, on the other, and many of these options are working quite successfully in other countries.

These options include various forms of drug treatment, such as rehabilitation, both voluntary and involuntary, public and private. Other options include medicalization, which fundamentally puts drug-using people under the supervision of a medical doctor and his or her staff; using needle exchange programs, which exchange without charge dirty needles for clean ones; drug maintenance, which allows prescriptions for an addict’s drug of choice to be filled at a medical clinic so that the subject neither gets high nor goes through withdrawal but is maintained at an equilibrium level until he or she is ready to attempt to be drug free (this program is working very well today in Switzerland); and drug substitution, which substitutes one drug, such as methadone, for the subject’s drug of choice, such as heroin. Many countries in Western Europe, which are not as concerned as we are with puritan morality, take a much more practical, harm-reduction approach to their drug problems by combining these alternative methods – with successful results.

Another option, of course, is an even more strictly administered War on Drugs, zero tolerance – “only this time we will really get tough!” Unfortunately, we have been getting tougher and tougher for the last several decades, and yet every time we have done so it has made our problems worse. In fact, in my view, our current policy of zero tolerance has brought us the worst of all worlds: We have filled our prisons with less-violent and less-organized drug sellers, thereby leaving this enormously lucrative market to those who are more violent and more organized. The result has been that the availability and purity of drugs have increased dramatically while the price has gone down. We couldn’t have created a worse situation if we had tried.

The best option we have is federalism, the principle that guided the repeal of alcohol prohibition in 1933. When alcohol prohibition was repealed, each state pursued the policy that best met its needs, and the federal government was eventually limited to helping each state enforce its own laws.

Of course, whatever option or combination of options we eventually pursue must and will include a major component for drug education. The need for education about drugs and drug abuse is almost universally agreed on, and many people believe that this is the only component of our current policy that is actually working.

Finally, we must explore various methods of “de-profitizing,” or taking the money out of selling these dangerous drugs. Of course these drugs are dangerous, but it is drug money that is causing the most significant harm. Methods to reduce the provitability of the drug trade include decriminalization, which basically means that, although the drugs remain illegal, as long as people stay within very clear guidelines, the police will leave them alone (this program is working quite well today in Holland, where drug use for both adults and teenagers is about half of what it is in the United States); regulated distribution, which is the strictly controlled and regulated sale to adults of designated drugs, similar to the way alcohol is sold in most states; and legalization, which basically leaves the distribution of drugs to the marketplace, with all of its protections under the civil justice system, and uses the criminal justice system to govern people’s behavior. Almost no one I have heard of actually favors the extreme system of the legalizing drugs, and I certainly do not.

Voters appear to be well ahead of politicians in the area of drug policy. Why? Because politicians perceive that they would be labeled soft on crime if they take a more moderate approach. Even President Clinton did not talk about a possible change in drug policy until the final weeks of his term. Whose fault is this? We have no one to blame but ourselves. It is our government, and it is our responsibility to show our elected officials that it is all right to talk about the possibility of change.

To some degree, this is beginning to happen. When presented with initiatives about making marijuana available for medical purposes, voters in nine states as well as the District of Columbia have said yes, in overwhelming numbers. The same is true regarding asset-forfeiture reform. And all of this has occurred despite the vocal opposition of the federal government and its use of our tax money to argue against the initiatives. That was certainly what happened in California with regard to Proposition 215 for medical marijuana, and also Proposition 36, which mandates treatment instead of incarceration for first- and second-time drug users.

Progress has also been made in other areas. In the past ten years we have seen a positive revolution in the way the criminal justice system treats non-violent offenders who take mind-altering drugs. This is, of course, our drug courts, where drug users are treated compassionately as human beings who have a problem. But they are also held strictly accountable to satisfy the demands of the court’s drug-treatment program. In many cases the results have been gratifying.

Prop. 36 is certainly not perfect by any means. For example, it should not have left the funding of drug testing to chance. But it should be supported, not only because it is the law but also because it provides an opportunity to remove from the criminal justice system those people who are not problem drug users, leaving their drug-use habits to be addressed by health-care professionals. (For example, does anyone seriously believe that it is any more helpful to put actor Robert Downey, Jr. in jail for his drug abuse than it would have been to put Betty Ford in jail for her alcohol abuse?) This will allow drug courts, with their scarce resources, to focus on the problem drug users – and we all know that there are certainly enough of them to go around.

We did that in the Central Municipal Court in Orange County in 1984 with problem alcohol users, and our program was encouragingly successful. Even though it is not illegal for adults to buy, possess or use alcohol, we were able to use the sanctions of the criminal justice system to hold problem users accountable for the crimes they committed, such as driving under the influence, assaults, spousal abuse, and probation violations for failure to make child-support payments, and at the same time get them off alcohol. We were able to replace a drunk driver with a sober one. In other words, we operated a successful drug court. We proved that a substance does not have to be illegal in order to hold the problem users accountable for their actions, both by punishing them for their offenses and by effectively steering them into “voluntary” treatment. What was true for the dangerous and sometimes addicting drug of alcohol is also true for these other dangerous and sometimes addicting drugs. Since problem drug users will find their way into our criminal courts anyway, why are we persisting with our failed policy of drug prohibition and punishment?

With the mandate of the voters, Prop. 36 has given us a magnificent opportunity to turn away from the failed policies of the War on Drugs, with its needless and expensive prosecution and incarceration of nonproblem drug users – at a cost of about $25,000 per person per year. In its place, it gives us a chance to use the sanctions of the courts to address the criminal actions of people who use drugs.

Consequently, it is up to us as caring citizens, voters, and taxpayers to continue to make the government move toward a more rational, workable, and, as good fortune would have it, vastly less expensive national drug policy. This can be done simply by recognizing that we have viable alternatives to our failed War on Drugs. Waiting for those who have vested interests in the status quo to come around simply will not work. Politicians will continue to talk tough until voters show them that such talk will no longer get them elected. Entire agencies within our various governments, and legions of private enterprises as well, are addicted to the enormous amounts of drug-war funding. For us to ask these people if we should continue with all of this spending is like asking a barber if you need a haircut.

In my opinion, drug policy is the single most important issue facing our country today. But we can all help to effect a positive change by simply recognizing that we have alternatives to our failed drug policies. Demand for dangerous drugs can be reduced through education, drug treatment, bringing the users closer to medical professionals, reducing incentives by taking the profit out of trafficking in drugs, and, very importantly, holding people accountable for their actions in the same way we do for people who cause harm by their use or abuse of alcohol. The best way to start is to remember – and to remind others – that just because we discuss or even use these other options does not mean that we condone drug use or abuse.

Pubdate: April 2001, pages 52 to 55
Source: California Lawyer
Author: James P. Gray