The Drug War on Trial: Two Judges Speak Out

Well, thank you all. David, thank you for that. It’s a pleasure to be able to be with you. There is a trap that we can all fall into, because I’ll bet you that I’m probably not going to convince anyone here tonight, because you probably are already convinced of this subject. And the trap is that we sit around, and we talk about how smart we are, and how we have all of the answers, and then we go off on and about our business. And we have to do better because it is our government. This is a great country we’re in, and it is a pretty good government too.

But we, in a democracy, get the government that we deserve. And I’m afraid that I have to stand here tonight and share with you my thought that we’re not doing a particularly good job of that. And one of the biggest reasons, in fact, the most critical issue that we in our great country today are facing, is the issue of drug policy. What should we do instead of what we’re doing now? Because I can tell you that our present drug policy is the worst that we could ever come up with.

I could take the front of this room, you’re an intelligent looking group, and give you the task to stay with each other for the next week and design a worse drug policy than we have in our country, and you could not do it. And that’s a problem.

I’ve been talking about this since April 8, 1992. So that’s what, nine years and something. I forecast with my crystal ball, and I had all the answers. I held a press conference, an unusual thing to do for a sitting judge. But I held a press conference and said the obvious, namely, what we’re doing in our drug policy is not working. And then I forecast, saying that by the year 2000, folks, we’re going to have a materially different drug policy in our country. Well, I was in error. I’m shocked because I—it’s so obvious to me. I feel like going up to people and shaking them just saying, “Look, open your eyes; see what we’re doing; see what our options are. Let’s do something better.” And people still just don’t get it.

However, I’m in good company because back in the mid-1980s, the United States Congress passed a resolution by a resounding number, saying that we in the United States of America will be drug free by the year 1994. So their crystal ball is a little more cloudy than mine.

So I have gone around talking. I talk with any group that I can, consistent with getting my job done. And the introduction that you just heard from David was laudatory, and thank you, it was a little bit too long.

But it’s a lot better than one I can remember very strongly which was quite a bit shorter and was on the nature of, “I know you all want to hear the latest dope from the courthouse, so here’s Judge Gray.” But we’re making progress as we go.

Let me ask you good folks five questions. I’ll bet I know the answer, but let me ask them anyway. How many of you people, as taxpayers, care about how your tax money is spent? If you do, we must repeal drug prohibition, because we are squandering our resources badly.

I was in Orange County a year ago last July when then—“drug czar” (now retired, thankfully) McCaffrey, was in business. And he was touting, bragging that his budget, the Office of National Drug Control Policy, was increased from $17.8 billion the year before to $19.2 billion that year. That is an awful lot of money. Does anyone have any concept of how much money that is just for that one office of National Drug Control Policy?

You know that United Airlines had for a long time a bid to purchase U.S. Air. It’s since then fallen apart. Do you know how much that was for? $4.6 billion. That means that McCaffrey and his budget alone could have purchased four major airlines every year and had something on the order of $800 million left over. That’s how much money we’re throwing around here.

Politicians in Washington really do understand this issue. They really do understand that the war on drugs is not winnable, but it’s eminently fundable. And they love to spend money. They’re addicted to spending money, and it’s up to us as taxpayers, voters, and citizens to say no. So if you care about how your drug money or how your money in government is spent—I didn’t say that. [Laughter.] You know, come on folks. Fortunately there’s no court reporter here tonight. I was in voir dire just talking to a jury, trying to get a jury just yesterday morning, and I was talking about drinking a Chevrolet. So if I can do that, I can do anything.

But if we care about how our government money is spent, the answer is what? Repeal drug prohibition.

Let me ask you my second question. How many of you care about our civil liberties in our country? The Bill of Rights and all of those protections? We must care about these.

If I were to rewrite my book, because I have a chapter talking about the erosion of civil liberties in our country because of drug cases all before the United States Supreme Court. If I were to rewrite that chapter, the subheading would be, “Where’s Paul Revere?” Why aren’t we spreading this alarm that we are giving away our civil liberties to the intrusions of government—the Fourth Amendment—with search and seizure, and the Fifth Amendment, self-incrimination. It goes on and on. This is really disturbing to me.

So if you care about your civil liberties, the answer is what? Repeal drug prohibition because that is responsible for more loss of civil liberties in the United States of America than anything in the history of our country.

How many people would like to decrease the availability of these sometimes dangerous and sometimes addicting drugs to our children? Isn’t that what this is all about? Isn’t that what drug policy is really meant to do? To try to reduce drug usage and availability to our children. If you want that to happen, the answer is what? Repeal drug prohibition.

Ask your kids, ask any of our under age young people as I do, Can you get alcohol? I confess: I was under 21 for a while, I think you were too. And yes, we know we can get alcohol. But you’ve got to work at it. You’ve got to show some ingenuity, some effort, some thought, creativity even. It is easier for our young people to get methamphetamines, marijuana, cocaine, if they want them, than it is a six pack of beer.

Why? Because alcohol is regulated by the government and the illegal drugs are controlled by the mob. I would start to say, well, mob drug lords don’t care if your 16 year old daughter uses cocaine. But they do care. They want her to. They push it on her. And that is the problem that we are facing and exacerbating because of our present drug prohibition laws. Isn’t it?

See, if we care about our children, the answer is repeal drug prohibition. Isn’t it?

Another question, number four. We want to be able to control our own lives. We want to be able to make our own medical decisions and our own decisions as to what we will put into our bodies.

Pretty much every evening, I will confess to you openly, that I go home after work and I take a mind-altering, sometimes addicting drug. Namely, I have a glass of wine with dinner. Alcohol by far is a more dangerous drug than marijuana. I don’t think you’ll find anybody that disputes that question. [Applause.] But I don’t know, I never smoked marijuana. I don’t want to either. But, I don’t think that I need alcohol treatment. I really don’t think I do. So the answer is, make people accountable for their actions. Isn’t that what the government should be doing? Holding people accountable for what they do.

And of all people—I can say it in this group—Ronald Reagan stated it best. Ronald Reagan said, “It is the purpose of government, among other things, to protect us from each other.” And I think he’s right. But he went on to say that where government goes astray is when we try to protect us from ourselves. Government has no business protecting us from ourselves. I wish he had followed his own comment with regard to the war on drugs. But he’s right, isn’t he? So if you want to bring back individual responsibility in our society, individual accountability, the answer is repeal drug prohibition.

And finally, my question number five. There is such a thing, look it up, as the Ninth Amendment to the United States Constitution and the Tenth Amendment to the United States Constitution. It’s very unwidely read and discussed. But it’s gaining a little bit of prominence in Federal Court and the United States Supreme Court. What does it say? It says that except for certain specified powers of the federal government, the other powers are reserved for the states.

We have an enormously arrogant and all powerful federal government that is dictating to us what we will do with regard to drug policy. That power is misplaced. That power is appropriately brought back to local control. And, of course, the best example of that is medical marijuana.

I was—
you were mentioning Asa Hutchinson—I was actually on the “O’Reilly Factor.” That’s a fun experience. But it was on that show, I’ve been on twice, but it was about two weeks ago and Asa Hutchinson was on as well. He was the other guest.

And I spoke to him via great monitors in the sky, telling him I was very disappointed that he was appointed and confirmed as the new head of the DEA. He sat there smiling away. He has the best smile you’ve ever seen. Didn’t seem to phase him. But I asked him, I said, “Look, will you please commit, as the head of the DEA, to allowing a medical doctor to make a decision as to the right medicine for his or her patients? And if medical marijuana is a medical decision, should that power not be re-delegated from him as the head of the DEA, where it is now, as to whether this will be a schedule one, two, three or whatever drug? Should it not be re-delegated to the Surgeon General, who is a medical doctor?” And he actually agreed. And boy, I hope he does that. And I tell you, I’m going to try to keep reminding him, and please, I want you to remind him of that as well. We can do that and should. [Applause.]

But the real question here is, because we’re all on the same side, we must make sure that our fellow citizens, voters, taxpayers, etc., understand this. We’re all on the same side of this issue. We all want to decrease drug usage, harmful drug usage, the misery and the crime and the violence that go with all of this. That’s what we want to do, and drug policy should take a firm stand at trying to decrease all of that harm.

The answer, of course, and where we disagree is how best to accomplish that. We have options, but what we must do first is to legitimize the discussion. And if I’ve been able with privilege to sign any of your books tonight, and I’d love to sign whoever you would like, I will most of the time say on the inscription that we need good people, like are here in this room, to legitimize the discussion in this area, because once we accomplish that, we will change our nation’s drug policy, because it is so plain, so apparent that what we’re doing is not working, that we will change it as soon as we allow the light of day to shine upon this issue. And what we really then need to do beyond that is to understand that we have options.

Now with great labor, I have in the book, and I’m pleased that you have at least access to this, I’ll never make any money on it, that isn’t the idea. I want people to be using the book as a tool, because the book, I think, offers two areas that are so far unused in this entire subject.

One is, the subtitle of the book as you’ll notice is, “A Judicial Indictment of the War on Drugs.” And it’s not just me. I cite at least 40 judges from around the country who give their experience, their thoughts, their discussions about what has happened in this area. And that is a way that we can legitimize this discussion as well. And, of course, there are an awful lot more that are out there that either have commented or will in the future.

But the second thing is the options, the possibilities. These are not untried. These are not experimental. There are things going on today, for example, in the country of Switzerland, that you should be aware of, and if you would please, when you get the book, if you do, read about the medical maintenance programs on drugs in Switzerland going on today.

It started in Liverpool, England, and I don’t have time to go through it so much right now. But they are going into the communities and clinics, and finding heavy using narcotics addicts, mostly heroin. That seems to be the problem in Switzerland. And they’re bringing them what? Closer to the medical professionals that can help them. And when they do that, they do what you or I would do. They try to get them into some drug treatment because these drugs are harming them medically, physically, and in other ways. And they’re harming, of course, their families.

So they try to get them into drug treatment. But for one reason or another, most people don’t want to do it at this point. And so they give them another option. They will actually find out a maintenance dosage for the heroin of these people. That means that they can go to a particular clinic, they have access to pharmaceutical grade heroin at cost, which dirt cheap to grow, manufacture and come by—so that’s not an issue. Easily $10 a day takes care of all of these people per person. And they will find a maintenance dosage, which means that they won’t get any euphoria, they won’t get a jolt or a high on it, but they also won’t go through withdrawal. They’re maintained at their present level.

And you know what they have found out? They had an experimental program, a pilot program that began in the middle 1990s. It was supposed to go for three years in seven cities in Switzerland doing this with their addicted people. The Minister of Health in Switzerland held a press conference after one year and said, “This program is so successful, we’re not going to wait the full three years. We’re going to expand it to 20 cities now because we have seen wonderful results.”

What have we found? They found that crime in the neighborhoods surrounding these clinics noticeably went down. Why would that be? Just because you’re furnishing at cost, heroin, to some of these addicted people, why would that have an effect on crime? Well, that’s not hard at all to figure. What do I as an addict do in order to support my habit? I’ll burglarize your house, your car, I’ll hit you over the head at the ATM when you take some money out, or commit some form of check offenses. You know, the merchants in the neighborhoods surrounding the clinics, as I understand it in some of these places, experienced a seven-fold decrease in shoplifting because these people were no longer involved in crime to support their habits. That’s a good thing. And Switzerland agreed.

The second thing he found out was that drug usage in the neighborhoods surrounding these clinics also was noticeably reduced. Well, why would that be for heaven sake? These people are getting the heroin. They count in the equation. Why would drug usage go down? It went down noticeably. Why? Because what do I as an addict do now? Yes, I burglarize your house, and prostitute and the rest, but I also get larger amounts of drugs and push it on you, your neighbors and your children in order to support my habit. But if these people are arrested, they’re off the program, and they no longer have to do that because they’re getting access to these drugs through the medical community.

So drug usage declines, because they have fewer people pushing drugs in the communities. And then, of course, if the 12 of us here were taken on the program and we were heavy users, our suppliers would no longer have this market. They’d go off someplace else to other grounds. So as a result, fewer drugs come into the communities, fewer drugs are pushed on our people, and drug usage has gone down. That’s a good thing, isn’t it? Switzerland thought so.

You know what else they found out? Increased employability. The employment of these people went up by 50%. They were holding jobs, paying their taxes, supporting their children. They were not a drain on society. They were living pretty much productive lives. That was a good thing.

And lastly, of course, the health of these people went up drastically. Nobody encountered AIDS, nobody got hepatitis, nobody overdosed on unknown quantities of these drugs, etc. They had a plebiscite in Switzerland because some, what I would call moralists, said we shouldn’t do this for moral reasons. Boy, don’t fly on Southwest Airlines, they’ll get at you. For moral reasons, they said no, we shouldn’t do this program. And they had a plebiscite countrywide in Switzerland to disband this program. That plebiscite failed by more than 70% of the vote. It failed, and they still made these programs permanent in the country of Switzerland.

I can’t believe that Swiss parents care less about their children and love their children less than we do. Do you? But they have something that’s working, and this is something that, in my view, we should adopt in every city in our country and every community that needs it, that would support it.

Can anyone think of any reason at all why we should not do that? And the only reason when I’ve asked that question is, oh, we’re sending the wrong message to our children. That’s what I hear. That old tired, hackneyed, but emotional response. And my response to that is, nonsense. Don’t hide these programs from our children, take them there, expose our children to these people that are addicted to these drugs.

What are the people going to tell them? “Oh yeah, you should jam some cocaine up your nose and really make a mess of your life so you too can be on this program and get your pharmaceutical drugs at cost. Is that what they’re going to tell them”? Never. “Don’t do what I’ve done. It’s a hard life. Look at me. I’m a—I am in trouble medically. This is not something that you should do. You know how I got involved in these drugs? Well, somebody gave me a free sample of methamphetamines.” Whatever it is, they’ll tell their stories. It is good education for our children. It’s honest education and it will take.

Same thing with needle exchanges. Oh, we shouldn’t have needle exchanges? Here in San Francisco you’re leading the way in that, and hats off to you. It is a no-brainer. In fact, it is a crime on our people to deprive them of needle exchange. All of the studies show—San Francisco here, New Haven, Connecticut, other places—that it does not increase drug usage, but clearly reduces the incidents of AIDS, hepatitis, and these other things. That is an immoral thing, a damnable thing for us to deprive people of these needles, if, in fact, they’re going to use this stuff anyway.

If they are, I don’t care what we call them as a society. And I know what I call them, I call them drug addicted people that have medical problems. But you can call them moral degenerates if you want to. You certainly can call them criminals. They do not deserve to die of AIDS. They do not deserve to pass along AIDS to their loved ones, to their sexual partners and the rest. And if only for monetary reasons, we as taxpayers don’t want that to happen. If that’s what it comes to, that’s what we’ll talk about.

So all of these things are out there. We should expose our children to needle exchange programs too. Let them talk to those people. What are they going to tell them? “Oh yeah, this is fun life.” Never. That will not happen.

So these are things we need to do. It is a pleasure to be able to be with you. I believe in this so strongly. I hate these drugs passionately. I’m a former Federal Prosecutor, as David said. I held the record for the largest drug prosecution in the Central District of California back in about 1978. Seventy-five kilos of heroin. About 160 pounds. That’s a lot of heroin. Does anyone have any idea what the record drug prosecution now is in the Central District of California? Eighteen tons of cocaine in one transaction. Can you imagine? If we can’t keep these drugs out of prison, how in heaven’s name do we expect to keep them off the streets of Oakland, San Francisco or anywhere else? It just isn’t going to work. [Applause.]

So let’s recognize that and let me leave you with a story because it’s an honor to be able to be on a program with my friend Judge Vaughn Walker here. It’s an honor, by the way, I have friends here, Dr. Bob Loll that I have met from a while back. When I was younger, I was actually running for Congress, and he was helping me, and thank you, Bob, for that. Marsha over here is doing titan work. If you folks are unfamiliar with the Lindesmith Center-Drug Policy Foundation, you’re doing us all a disservice. This is the group, in my opinion, that is able to get the word out as an educational effort to talk openly and honestly in this area. And Marsha is here representing the Lindesmith Center and it’s nice to see you.

There are others, too, I can’t go into except for one, and that is my son, Bill. He’s over here. I have advertised to him that he is here working in the San Francisco area, working for AAA, and he’s the one keeping them productive. So you owe an awful lot to my son, Bill, who’s right here. Stand up William P. That’s a boy. I did him a dirty trick yesterday that maybe some of you know, but I couldn’t possibly repeat.

But it is a pleasure to be with you. Let me just end this, my discussion here and then maybe we can get into questions after Judge Walker has a chance at you. And that is that there was a man on his deathbed, very end of his life and he knew it, and at the very end he called his wife into his side and said, “Well, dear, before I leave this earth, I just have to get something off my chest. For a number of years now I’ve been having an affair with such and such a woman that lives across the street, and I’m sorry, but I think you had a right to know, and you had to hear it from me.” She thought for a moment, and then she said, “That’s OK, I know, that’s why I poisoned you.”

In such a similar way, we are poisoning ourselves by the way we have chosen to deal with this very difficult topic. It is an emotional topic. We must treat this as managers and not as moralists. We must understand that harmful as these drugs can be, although they’re just things, they also have some very useful properties as well.

But sometimes even with the harm, these drugs are here to stay. So let’s recognize that. Let’s try to reduce all of the harm that can and will be caused by their presence in our communities. The harm with regard to the misspending of our resources, the harm with regard to are the loss of our civil liberties, the loss of our innate ability to do what we want with our body and have our own responsibility for it. And the loss, in fact, the arrogance, the increased arrogance, with regard to the Federal Government supposedly having all of the answers and dictating to us as citizens what will happen. We can do better. We must do better. I guarantee that we will be successful in this. The question is when. I know that it can be done. I appreciate the opportunity to come and talk with you this evening. I look forward to your questions. Thank you all for being here. Thanks.

David Theroux

Thank you very much, Jim. Our next speaker is Vaughn Walker. Vaughn became U.S. District Judge for the Northern California district in February 1990. Judge Walker is a graduate of the University of Michigan. He studied law at the University of Chicago and received his JD from Stanford. He’s been a Woodrow Wilson Fellow with the University of California at Berkeley and has worked at the Securities and Exchange Commission. He earlier clerked for Judge Robert Kelleher of the U.S. District Court in Los Angeles and was a partner at Pillsbury, Madison and Sutro. Judge Walker is also Director of St. Francis Hospital Foundation, a member of the American Law Institute, a former member of the California Review Commission, President of the Lawyers Club in San Francisco, and Judicial Representative of the American Association Section of Antitrust Law. I’m very proud to introduce Judge Vaughn Walker.

Vaughn Walker

Well, I trust you all haven’t just wandered in from the Madonna concert. [Laughter.] I think, Jim, considering the competition, we’ve done pretty well with this crowd.

James P. Gray

We kept our clothes on too. [Laughter.]

Vaughn Walker

Well, that never was a temptation as far as I was concerned. [Laughter.] And I can assure you if the audience had thought that was a possibility, it wouldn’t have been a temptation for them either.

I’ll tell you, it’s a great pleasure to be on the same platform with Jim Gray. We’ve been on the same platform on this issue a couple of times in the past. Jim has done a great public service in the dedication that he has brought to this issue. And the work that has gone into this book is something that those of you who’ve not had the pleasure of reading it, should certainly get a copy and read it. It is chock-full of facts and figures and arguments, the kind that you’ve heard him present.

I spend most of my time off the bench speaking to audiences about class actions and securities litigation and issues of that kind, and those are big issues, without any question. But this is a really big issue, the drug war and what is happening to the United States, what is happening to the world as a result of the failed policies that are described in Jim’s book. And he has done great public service in bringing attention to the failures of our policies, articulating, as he has this evening, the problems associated with those policies and pointing the way toward some solutions.

He’s outlined for you the points of the indictment against the war on drugs. The fact that it has created interest groups that support this policy in a sort of a perpetual motion machine public policy. They fund one group after the other, and that group then provides political support for these policies. The prison guards’ union and the care providers that are supported by the appropriations, the various government agencies that receive money as a result of the war on drugs all are creating vested interest in the continuation of this policy.

Jim had quite rightly described it as the imminently fundable drug war and, indeed, it is. He described the erosion of our civil liberties that has gone with the policies that have been created. He’s described very graphically how the war on drugs policies have encouraged rather than discouraged the spread of drugs, and brought more and more people who would not otherwise have been exposed to drugs into exposure to them.

So I thought in light of his comments, and the thoughtful observations that he’s made in his book, I might spend just a few moments talking to you about how we got here, how we got to a position where our public policies were so wrongheaded, and spend a few moments on, as Jim did, on how we might get out of this morass, this mess.

And if you’ll pardon me a personal observation, I never, before I went on the bench, gave any serious sustained thought to the issue of drug policy. I had—
I will not, like Jim, disclaim never having used drugs. I don’t see how anybody who went through the 1960s at places like Berkeley and Chicago and the University of Michigan can possibly have gotten through that experience without exposure to some narcotic substances. But it wasn’t very much. And I didn’t much like it, and didn’t obviously find these were gateway drugs, which is, of course, one of the myths that is peddled. Marijuana is not a gateway drug to anything as far as I can determine except, in my case, not marijuana. I didn’t like it, and I didn’t respond very favorably to it.

But, indeed, with the exception of deciding that I didn’t like these substances, I had not given any sustained thought to the policies that we had until I went on the bench. And my first few trials, I had the reaction which I suppose anyone who had not been exposed to these policies would have, that people who were the defendants, the people that you found in court, were certainly not the most likeable kinds of people that typically you’d want to encounter. Most were not the kind of folks that you’d want to invite home for dinner. And so it just was something that was most unattractive, and of course, you would hear the evidence in these cases and it painted a dreary scene indeed.

Then I began to realize that one of the reasons this scene was so dreary is that everybody in the courtroom was one of these characters. The witnesses for the prosecution, by and large, were people who had been drug dealers, or people who were snitches of one kind or another, undercover agents or confidential informants, CIs, as they’re called in the trade.

And pretty soon the realization came to pass that there really was not a hell of a lot of difference between the good guys and the bad guys in these cases, which was driven forcefully home to me when I went down to the judges’ dining room in our courthouse one day and encountered Judge Snocky, who was then alive. Those lawyers here who may recall Judge Snocky would, I’m sure, never confuse Judge Snocky with a judge who was soft on crime. And he was a rather abrupt gentleman of many years. He became a great, good friend, and I thought was a fine jurist. But he could be taciturn at best.

And he said, “Well, what are you doing today?” And I said, “Well, I’m trying an armed bank robbery case.” “Well, how’s it going?” he said. “Well, it’s going just fine. As a matter of fact, I sure like this case a great deal better than these drug cases I’ve been trying.” [Well, of course,” he said, “because in an armed bank robbery case the witnesses are nice people.”

And so it is. In an armed bank robbery case, the witnesses are the bank teller, or the person who’s in the bank who’s putting money in, or taking money out, or a customer coming or going, or the guard and so forth. And they are people who suddenly find themselves in the middle of a bank robbery at the wrong end of a gun, or they’re witnessing some sort of a crime. They have no interest or incentive in the case, other than to tell the truth, to tell what happened as they saw it. They have no stake in the outcome other than to see that justice is done. So the witnesses in those kinds of cases, where there are those kinds of crimes charged, are nice people.

But a drug case is altogether different. A drug case is not self-revealing. What is going on is an activity that can’t possibly be prosecuted, except by surreptitious law enforcement. And as a consequence, it turns out, that in a drug case, unlike on our bank robbery case, the witnesses typically are not nice people. And the government has to deal with such individuals, has to spread money around, give favorable consideration of one kind, leniency or some other kind of favorable treatment, in order to secure testimony in those kinds of cases.

And so someone who’s never been exposed to these kinds of cases in the past, as I had not, begins to realize the character of the kind of law enforcement that is entailed in prosecuting drug cases.

And then you begin to realize, as you spend a little more time on the bench and you watch how the criminal laws operate, that law enforcement is very much as Thomas Edison said of invention. Recall, he said that invention is 99% perspiration and 1% inspiration. Well, you learn after being on the bench that law enforcement is 99% compliance and about 1% coercion. If you have laws that people are unwilling to obey, to comply with, then you’re going to have to resort to the kinds of law enforcement measures that you see in drug cases.

And the fact of the matter is, in our drug laws, that there is a segment of our population that simply is unwilling to comply with the aspirations that these laws represent. The laws’ hopes and aspirations exceed the population’s ability and willingness to grasp. And so to try to bring these things together, the government has to engage in undercover enforcement, coercive methods of law enforcement, and the kinds of policies and practices that have led to the bizarre and disturbing results that Jim Gray has described.

The history of drug law enforcement goes back a long way. The problem that we find ourselves in is not one of recent invention, and it’s not one that you can lay at the feet of one party or the other. You can’t lay it at the feet of liberals, or conservatives, or people of a particular political point of view. What you can lay at the foot of is an unwillingness of people to rise above themselves. Here’s what I mean.

The first narcotics law that was enacted in the United States was enacted in the good old liberal San Francisco in the middle of the 19th Century, when this area was bringing in, in increasing numbers, Asians to work primarily on the railroads and other public improvements. And naturally they brought in practices and customs of their homelands, which included the use of opium.

And it was thought by the good folks of San Francisco that this was corroding the morals of San Francisco, and we had to stamp out the opium dens of San Francisco, and an ordinance in that city was passed. And at the same time, the country was in the throws of trying to deal with the alcohol problem.

One of the interesting phenomena about alcohol is there is no substance that has a better track record than alcohol. The data series that’s available on consumption of alcohol in the United States far surpasses that of any other substance. The reason for that is if we attempted to tax that over such a long period of time.

And one of the interesting facts about alcohol consumption in the United States is that it reached a high point in the early-to-mid part of the 19th century. Alcohol consumption, on a per capita basis in the United States, reached its peak at the period between about 1820 and 1840. And we know this because of the data, which is available, and the population figures which are also available. The tax records that are available and the import data that are available.

And historians believe, and I think this makes a great deal of sense, that the reason for this is that at about that time in history, the country—
European settlers were crossing the Appalachians and Allegheny Mountains and settling in the rather broad, rich agricultural lands of Ohio, and Indiana, and somewhat later in Illinois. Land that was great for growing grain. But it was still hard to get grain from the grain producing regions of the country to the Atlantic seaboard, where the vast bulk of the population lived. If you had to ship grain in whole, you had to ship it all the way down the Ohio or Mississippi Rivers, down to New Orleans, and then around back up to the East Coast. Or alternatively, you could distill it into an alcoholic substance and ship it much more economically to the East Coast.

And so that, together with the fact that virtually every farm in the country in that area, that area west of the Allegheny and west of the Appalachians, had a still. Certainly any farm of any substance had a still. There was an abundance of low-priced corn liquor available, and alcohol was very widely consumed. And it was a problem, as it is a problem today.

We know the problems that attend alcohol addiction and alcohol abuse, and the same problems existed in the early-to-middle parts of the 19th Century. And that, of course, gave rise to the Temperance Movement and the Prohibition Movement.

Both of my grandmothers were members of the Women’s Christian Temperance Union, and lord knows what they would think of their grandson going around giving speeches on the subject that I am speaking on tonight. But one of them, and bless her heart, according to my mother, about 10:00 in the morning would have a little glass of sauterne wine, which she thought was very helpful in thinning her blood. But yet she would hitch up the wagon and go around the countryside rounding up people to vote to make sure that the county that she lived in remained dry.

But there was the Temperance Movement at that time. It was obviously directed to a real social problem, the problem of alcoholism. But it was also accompanied by the influx at that time of a large number of Irish immigrants into the country. Basically, a Protestant country at that time. The Irish were basically Catholic. And there was a great deal of feeling that there was an association between the influx of the Irish who were coming, and in the Irish who were coming in at that time were not the gentry of that country. They tended to be a little rougher around the edges than some of the old settlers thought. And they concentrated in the big cities, and many of the social phenomenon that we associate with urban concentrated populations existed with the influx of Irish immigrants in that part of the 19th century.

And there became kind of a tie between those or an association in the popular mind. A famous comment of James G. Blaine of “rum, Romanism and rebellion” linking these phenomenon. And so people associated a particular group, and a real social problem, and they began to respond. And that, of course, led to the increased Temperance Movement, which as we all know, peaked ultimately in the early part of this century with—the early part of the last century—the Prohibition, the legal Prohibition Movement.

And together in 1914 gave us the Harrison Act which was directed towards substances other than alcohol, the kinds of substances that are illegal today. An enactment during the Woodrow Wilson administration and vigorously enforced by the Woodrow Wilson administration who—an administration which engaged in that era’s war on drugs with the same enthusiasm that some of the later administrations have joined in.

And then the 1937 Anti Marijuana Act. A product of the Franklin Delano Roosevelt New Deal, motivated to a considerable degree by fear associated with the use of marijuana, which was associated with a tremendous influx at that time into the Southwest and the southern states of migrants from Mexico, who were thought to be bringing this scourge into good old America.

And then we’ve seen in more recent times, the tremendous increase in penalties associated with the distribution of crack cocaine or distilled cocaine as opposed to powdered cocaine. And that, as we know, in the popular mind, is an association between Blacks and this substance. The thought being that somehow or other this is a more lethal and more threatening form of the substance, and we associate that or people—
it’s been associated in the public minds with a particular segment of our population.

The fact, of course, the truth is that crack is a phenomenon of the drug wars. As the drug wars were making cocaine more expensive, lower income people were able to get more bang for the buck by distilling it, and developed means of doing that through the development of crack.

My point in describing this is not only to suggest that there is a racial or ethnic component with our drug laws, because I think there is, an unthinking association, a fear of the foreign, a fear of the minority that has given us the drug laws as they presently exist. I don’t think many of those who sincerely have supported these laws are themselves racist, or that the laws are at bottom racist in their intentions, but they certainly are disproportionately falling on foreign groups or minorities.

President Nixon in the 1960s and 1970s was certainly appealing to people’s fears of what was going on at that time. People’s fears that generations were going awry, that the morals of the country were somehow or other headed in the wrong direction. And we had to do something about it, and what he proposed is a public policy which would be a war on the popular explanation for these problems.

Well, the problems, of course, had their origins in much deeper phenomena than simply drugs, but drugs became a popular whipping boy for the politicians, and they continue to be a whipping boy for politicians and explain the kinds of comments that Judge Gray has referred to by former Congressman Hutchinson, in which he described the war on drugs, not as public policy, but as a crusade.

It is that mentality, it seems to me, that we need to address, to try to bring into a more rational focus, but it’s going to be a very long and hard row in order to accomplish that. There is, I think, no simple or easy answer. There isn’t a law that can be passed that’s going to solve the problem. There isn’t even a set of laws that’s going to solve the problem. It’s going to take more speeches by Jim Gray, it’s going to take more books by Jim Gray, it’s going to take more symposia such as this. It’s going to be a long, hard struggle. Marsha Rosenbaum, who Judge Gray mentioned, has been toiling in this vineyard for a long time and there is no end in sight.

I do think there is progress. I do think people have begun increasingly to appreciate the futility of the policies that we have pursued, and are beginning to understand the less noble motivations, or less noble fears that have driven these policies over the years, but we’re going to have to face the fact that this is a problem that’s going to be with us, or the set of problems is going to be with us for some long period of time.

And in the meantime, the policies that we have been pursuing are almost, seems to me, completely upside down. If you consider the adverse social effects of drugs or the drug war and the policies that we have, those policies exacerbate the problems to a considerable degree.

What we have attempted to do is to engage an in interdiction policy, to keep drugs out of the country, to focus our enforcement efforts on the drug kingpins, the big sellers of these commodities. And you sometimes hear people seeming to take a moderate position by saying we should focus on the big guys, the drug kingpins, but let the small users, the small dealers off the hook.

I must say that I think that is completely wrong, completely the opposite of what makes sense under these circumstances. If anything, the enemy is the drug dealer who is on the street corner, who’s corrupting kids on their way to school, who are peddling drugs in the schoolyards, who are doing the sorts of things that Judge Gray has talked about, of luring in more and more people into drug use, of creating the collateral violence associated with drug transactions on street corners and in neighborhoods throughout the country.

The problem is not that the country is awash in drugs. It already is awash in drugs. The problem is created by the fact that drugs are a profitable enterprise for these criminals to engage in, and the incentives to engage in the drug trade overwhelm the ability of many people to resist. And that’s why you have on the street corners of the country, and in the schoolyards of the country, all of these drugs being peddled. It would make much more sense to focus law enforcement efforts at the local level, and to turn away from trying to do the impossible in any event. And that is to keep drugs out of the country in the first place.

The problem is not unlike many other law enforcement problems which exist when the aspirations of the law exceed the grasp of society to comply. At some point or other in that situation, we all know it, law enforcement turns a blind eye. Law enforcement doesn’t really go after houses of prostitution in certain areas. They let them flourish. They confine prostitution to certain neighborhoods if they possibly can. They know they can’t pass more rational laws on the subject, and so over the years, we’ve accepted a kind of a compromise, in which we allow that activity, which is a harmful activity without any question and a problematic one, but nevertheless, one that is another area in which the aspirations of the law exceed the grasp of society to comply. And so we’ve adopted what is a much more rational approach. We allow it to go on in certain areas, under certain circumstances, as long as it’s confined.

And I suggest to you that until we can begin to have some of the longer range solutions that Judge Gray has outlines, a far more rational way for law enforcement to deal with the current narcotics problem, is to treat it as we treat similar activities in which our ability to comply with the laws does not live up to the aspirations of those laws.

Now David is trying to get me off, trying to shut me down. I want to say just one other thing. It’s always a great pleasure to be on the same platform with Judge Gray. I knew his father, who was a great jurist in Southern California, and I know what a splendid job Jim has done on this issue over the years, and it’s always an opportunity and a pleasure to see and be with David Theroux, and I know the great good works that he does.

But I must tell you what gives me greater pleasure than anything else tonight is the presence here of two individuals who have been real veterans in the war on drugs. I’m not going to point them out or mention them by name, but they’re two men who have appeared before me when I was wearing a black robe, who were defendants in drug cases, and in their cases, I tried to apply the law consistent with the oath that I took to apply the law fairly, and consistent with its intention, but also I hope with some understanding of the circumstances that they faced.

Judges increasingly find that hard to do. The laws that we have enacted constrain the ability of judges to apply the law in a humane way, a way that tries to recognize the circumstances and the characteristics of the offender, and the possibilities and potentials which those offenders have. Once in a while, with a little struggle, and an occasional reversal by the Court of Appeals, you can do that. And I must say that the presence of these two gentlemen, and they obviously know who they are and so forth, gives me the greatest pleasure to know that they have gone through this war. They are survivors, they are veterans, they have paid a terrific price. They both have straightened out their lives, and have straightened out what they’re doing in society, and their recognition by being here this evening is one of the greatest rewards that I could possibly have in the years that I’ve been on the bench. And so I thank them and I thank you for your patience and your attention.

David Theroux

So we have time for questions. Carl has a microphone, and if you would wait till he brings it to you because we’re recording this for our Website. And if you’d hold the microphone horizontally, that will help with interference. How about the gentleman right up here.

If you could please keep your comments to a question and indicate if it’s one or the other judges you’re addressing it to.

Audience Member #1

I don’t know which judge, but I’m interested in knowing not who the serious suppliers of the drugs are. We’ve talked about suppliers and the big drug dealers, but who are the serious users of drugs in our society? I haven’t heard any indication of where the money is coming from that’s flowing in a Niagara to Colombia. Where does that originate? Is it coming from the street corners or is it coming from the hills up in our affluent areas?

James P. Gray

Well, I think the answer to that is yes. [Laughter.] It is estimated probably very conservatively that there are 30 million people in our country that use illegal drugs on a regular basis. If any group uses or abuses drugs more than any other in our society, because I think pretty well the standard is that every racial, every socioeconomic group uses these drugs pretty much on a same level. But if any group uses it more than any other, it’s basically mine. It is Caucasian, upper middle class males that probably use drugs more than any other. And there’s a phenomenal amount of money in this.

The drugs are always in a society. There’s never been a society, maybe other than the Eskimos that can’t grow anything, that has never used a mind-altering drug. It just has never happened. So the secret is, number one, to bring it back under control, because we have experienced a total collapse of the rule of law in this area. And number two, to take the profit out of it so that people don’t have a vested interest in pushing it on our children and on the rest of us. So basically it is a problem that we are simply—
we have proved ourselves unable to incarcerate our way out of this problem. So let’s try something different. But it’s across the board.

David Theroux

Right behind you, Carl.

Audience Member #2

I think of the war on drugs as very analogous to the Vietnam War, which was, in my judgment, a terrible mistake, that the American people finally decided was a terrible mistake after many years of great suffering and great expense. And that came to an end mainly when the whole society woke up to the problem. But that was a problem that for some reason or other engaged everybody.

My question is, how do you get this problem out of this room, where everybody’s already converted, and get it in front of the nation, and get everybody to understand it, because I think when everybody does understand it, the solution is pretty obvious, we do something different. How do you get out of here and get to the American people?

James P. Gray

I just ask questions, and Vaughn Walker has all the answers. If we knew that we’d be doing it. This, in my view, is the ultimate of grassroots movements. There is so much bureaucracy, there is so much money, both legal and illegal, that is perpetuating the status quo, that we have an amazing situation in which the good guys and the bad guys have the same interests in perpetuating the status quo. So the only way we get around this is to get people, voters, tax payers aware in a grassroots movement.

And I’m really optimistic. Who would have predicted that the Berlin Wall fell two years before it did? And I didn’t hear anybody talking about that. I am convinced that this war on drugs will fall with the same rapidity that the Berlin Wall did. It’s just a question of getting and legitimizing this discussion, and the best way we can do it is to talk on radio shows and talk in groups like this. So let’s just keep at it. It’s the best answer I have.

David Theroux

How about the gentleman in the back.

Audience Member #3

Thank you. You talked about legitimizing the debate on this issue, and one of the problems in doing that is that, of those 30 million people who actually know the truth about drugs from personal experience, virtually all of them are afraid to speak up and tell their neighbors, because they’re afraid somebody like one of you will lock them in prison, will take away their home. Right, will get them fired from their job, for merely telling the truth about their own experience. How can you as judges, or we as citizens break, that vicious cycle to let the truth come out? [Applause.]

Vaughn Walker

Well, on this issue, the emperor has no clothes, and any time that you can expose the law enforcement machine that is driving these policies for what it really is, I think, you don’t have to preach to people, because the answer is quite obvious.

It’s the same phenomenon that I tried to illustrate by the comment of Judge Snocky that in a bank robbery case, the witnesses are nice people. If people were to see what drug prosecutions were, to watch them on Court TV, or if Judge Judy were to preside at a drug trial rather than the sorts of things that she presides at, people’s attitude about these cases might be altogether different. In fact, I think they would be different. And that would be a situation in which people who knew what was going on would be seen and would telling their tale, and pretty soon it would be obvious that it is not a question of a crusade, it’s not a question of black and white, right and wrong.

James P. Gray

There’s a good friend of mine who is a Federal judge in Orange County that teaches a class at the University of California at Irvine, and he talks about the drug war in this class, and he does something that is enormously creative in that. The first class, he brings over 10 recovering addicts to his class, and there are like 200 people in the class. He breaks them into 10 groups, and for an hour he has these groups of students go out and talk with these drug-addicted people. And you know, these 200 students will never be the same because they will for the rest of their lives see this as a human issue instead of an incarceration issue. We need to humanize it.

One of the Drug Policy Foundation conventions that they had brought in some recovering addicts, and some who were not recovering, and made this a human thing. There is a fledgling movement going on today that actually have people introducing themselves by taking out ads in newspapers saying, “Hello, I am Dale and Betty, we are your neighbors and we smoke marijuana, and we are responsible people, and we have this and we have that.”

That’s a very legally dangerous thing to do, I acknowledge it. But we need to bring people accountable for their actions instead of what they put into their bodies. I’m your neighbor and I drink that glass of wine. And it’s pretty much the same thing. But you bring up an extremely difficult issue because legally it is very dangerous to do.

Audience Member #4

I’d like an opinion as to why the Federal Government hasn’t mounted a stronger attack on the Proposition 215 Clubs?

Vaughn Walker

Well, they have. They’ve certainly taken the issue up in court. What do you mean have not launched a stronger attack?

Audience Member 4

There are plenty of clubs that are open, that are presumably operating in violation of Federal law, so why haven’t they moved in to shut them all down?

Vaughn Walker

Well, I think, it’s perhaps what I was suggesting might be done with this kind of problem. Law enforcement ignoring it, rising above it. I think more and more you will see that sort of thing. I think we see it on a local level already to some degree.

There, I think, will be places developing where people will be able to buy marijuana, and the police will know what’s going on, and they’ll follow it, and after all, that’s going to be a much more satisfactory outlet and source than the street corner. There will be some controls, they’ll be some monitoring, they’ll be some measures for quantification, and it’s a far more satisfactory situation so I would not view the perception that the Federal Government has not focused on the outlets for medical marijuana as a bad thing. It seems to me it’s very much of a good thing.

James P. Gray

Well, there is an ultimate reality here that those in the Federal system know, except some of the senators and politicians, and that is that the Federal criminal justice system is not equipped to do volume. They’re just not equipped to do street crime. That’s State stuff. So they can bluster, you hear General McCaffrey is the drug czar talking about we’re going to do this and do that, but they do not have the ability to go in and handle things in volume. They are structured to attack the drug lords and the bigger things. So even though they don’t like it, they are not equipped to be able to go in and prosecute them fortunately.

David Theroux

How about the lady right there in green.

Audience Member #5

Aside from foreigners and minorities in the 1960s, have either of you noticed more recently, examples of how the government targets specific cultures or subcultures to stop the use of a specific drug?

David Theroux

Native Americans is one.

Vaughn Walker

Native Americans, David suggested. What do you have in mind?

Audience Member #5

Yeah, for example, how they’re dealing with the increasing use of Ecstasy as far as all the publicity that’s going on with the rave scene.

Vaughn Walker

Judge Gray has an interesting observation about that in his book, and one that I must say I had never thought of. And that is let’s assume that the Federal Government’s interdiction policies were effective at stopping heroin and opiates and naturally-created narcotics from coming into the country. What would happen? We’d see a tremendous increase in the production of methamphetamines and other synthetic drugs. There’s always going to be a source for these drugs as long as there’s any demand for them.

And I think in many ways the synthetic drugs are more dangerous. They’re less reliably quantified, and their potency is less reliably determined, and the production often takes place in circumstances that are highly dangerous, both to those who are involved, and those who happen innocently to be in the neighborhood around. So the production of drugs is not going to stop until there is a diminution in the demand for those drugs.

David Theroux

One thing I might add as many of you may know, in countries like Peru, it’s legal to have a cup of coca tea, and it’s no more strong than a normal English cup of tea, and yet if you were to bring a single teabag of coca leaves back to the U.S. you’d hear about it. How about this gentleman right here?

Audience Member #6

This is for both judges. Do you think there’s a chance given that we see some incipient resistance among the judiciary, you included, in this movement against the war on drugs, that we may get some progress like the Netherlands did, where the judiciary itself without any legislation did, in effect, legalize marijuana?

James P. Gray

First of all, that is not my understanding of what happened in the Netherlands. I may be wrong, but that was a political decision that they made. The government instructed the police in the Netherlands, in writing, as long as people stayed within general guidelines of quantity and quality, that they were instructed not to arrest them.

I don’t think that it can be and should not be a judicial decision. Like Judge Walker was saying, we did take an oath to follow the law. I tell my juries all of the time that they have numbers of options if they do not agree with the law, they can run for Congress, they can support other legislators to change the law, they can pass another initiative. Their ability is not to decline to follow the law. Judges are required to follow the law. I do it, Judge Walker does it, and when we cannot do it, we should resign.

David Theroux

This lady right here.

Audience Member #7

Hi. I’ve heard both of you. Basically it seems like your position is that the prosecution of the war on drugs is more negative than the benefits. But my position, and I want to know how you guys react to this, is how about the right of someone to use a psychoactive substance that’s not alcohol? Of the estimated 30 million people who use drugs, I can tell you, I know quite a few in places like my law school, Harvard Law School, where people are doing recreational cocaine and marijuana and ecstasy, and why should we not have a right to use those substances simply because they’re not the predominant psychoactive substance used in this country? [Applause.]

Vaughn Walker

Well, personally, I have no difficulty with that. I would not, however, want to run for public office on that platform, and I don’t think anybody else would.

David Theroux

Gary Johnson

Vaughn Walker

Well, Gary Johnson you mean in New Mexico?

David Theroux

He’s leaning toward a second term.

Audience Member 7

Exactly.

Vaughn Walker

You know it’s a lot easier to talk about these issues when you have life tenure—

Audience Member 7

Yeah, that’s nice.

Vaughn Walker

—than when you have to face the electorate every two years or six years or in Judge Gray’s case. I think every six years, isn’t it? So he really is to be commended, because he’s the one who’s gone out on a limb, and has nevertheless survived the voters—

David Theroux

He’s still there.

Vaughn Walker

—in Orange County nonetheless which I think gives some indication that more and more people agree with your point of view. And I think it’s an important philosophical point of view to stress.

By the same token, when you’re trying to persuade a reluctant public, which hasn’t focused on this issue to the degree which most people here have, it probably is a mistake to lead with that argument. It’s probably a mistake to suggest that these are beneficial substances, that people ought to be able to use recreationally. Even if you believe it.

I think it’s best to recognize that there are harmful effects which many people suffer from the use of narcotics, as they do from the use of nicotine and alcohol and so forth. And the approach, which Marsha Rosenbaum’s group has taken over the years, is how do you reduce the harm associated with the reality that people are going to use these substances? But I think there’s a very significant segment of the population that agrees with your philosophical position. But I’d mute it if I were you in engaging in the political dialogue. [Laughter.]

James P. Gray

I didn’t mean to have you walk away feeling that was my point of view. My fourth question was just what you raised. Namely, should people be able to put things into their bodies as they desired? As a philosophical matter, I believe in that entirely, and I think we have proved that as a political and legal matter, we are unable to keep that from happening. So the answer is, again, to hold people accountable for their conduct and let them decide themselves what to put into their bodies. That is what my answer would be.

Audience Member #8

This is for Judge Gray. Just a moment ago, you were talking about your constraint to follow the law, would you agree that jury nullification would be an element that could help change this situation and change it quickly?

James P. Gray

Jury nullification is a very harmful concept, and a very harmful idea. I know that a lot of my friends do not agree with that. I will stand on that proposition enormously.

OK, you and I agree pretty much with regard to the drug issues, and we’re going in the wrong direction, and the laws should be changed, and everything else, but you can use jury nullification in any way you want. You can use it to justify lynching and slavery. You can use it to justify unequal rights for women or anything else. There is no difference.

If we get into that where we can instruct a jury that they don’t have to follow the law, which, by the way, they do have the ability not to follow the law, they are just not instructed of that ability. There’s a difference there, and that’s a safeguard that I will also stand for, but if we’d instruct the jury that they do not have to follow the law, then we can very easily in our country end up with anarchy. The best way of getting a bad law changed is to enforce it, not to ignore it. And hopefully we, by enforcing, these laws are calling people’s attention to it enough that these harmful laws will be changed. But otherwise, I think this is a very dangerous concept.

David Theroux

There’s a lady right there.

Audience Member #9

I thought there was a movement to do some reform to the Rockefeller drug laws. The mandatory minimum sentence is under which people are just being incarcerated for absolutely ridiculous periods of time. Am I mistaken in that respect or is there some movement?

James P. Gray

No. Well, Governor Pataki in New York was taking the stand on this, and there was some progress being made, not nearly enough, and the Rockefeller drug laws. Maybe Marsha, you know more about it than I do, but it’s my understanding that the Rockefeller drug laws are still in effect, but there is a movement, as you say, to reduce them.

They are enormously harmful. They have done just hideous things that we have every right to be very displeased about. But so far, it’s my understanding they still are in effect.

Vaughn Walker

Well, let me tell you this. Are you aware, folks, we in California have something like six times more people incarcerated this minute on a three strikes violation for marijuana offenses than robbery, rape and murder combined? So let’s not talk about New York, let’s talk about California. This is a hideous thing. [Applause.]

Audience Member #10

If the war on drugs falls, and we develop a policy such that drugs are controlled and legalized and taxed by the Federal Government, has anyone calculated how much money the Federal Government would make taxing the legalized controlled use of drugs that could then be used to do research on the medical aspects of drugs and treatment of people rather than incarcerating them?

Vaughn Walker

I don’t know, Jim, of a specific figure that anyone has come up with, but I can’t think of anything more encouraging. If you’re concerned about the problems associated with heroin, cocaine, marijuana, whatever it is, methamphetamines, to put the sale, the distribution, the promotion, and the advertising of these products in the hands of the people who run the Department of Motor Vehicles or the Internal Revenue Service.

This, I think, is a major solution to a problem in the same way that in many states, in the wake of repeal, many states adopted programs in which the state ran the liquor stores. Pennsylvania I think still has state liquor stores. And it is one of the possibilities that Judge Gray alluded to in his comments, in which he suggested what we ought to move toward is a more federalist approach to drug policy, in which states and localities were given the authority to experiment with different means of distribution and different ways of addressing the problem. And, of course, what would happen is what happened with alcohol in the wake of repeal. There would be a checkerboard of different schemes around the country, one of which would be putting the distribution of these products in the hands of people who just don’t know how to sell anything. [Laughter.]

David Theroux

Well, wait, two things I might add to that, is we should keep in mind the old adage of the unholy alliance of the so-called Baptist and bootlegger who were big advocates of Prohibition, and Vaughn had mentioned different interest groups that are behind the continuation and expansion of a lot of these policies, so you’ve got to be careful about tax policies, especially when you realize that the Harrison Act that Vaughn mentioned, started as a tax on opiates. It was an excise tax. And when that excise tax was implemented it created a black market, and a black market led to violence. People were upset about the violence, they blame it on the drugs, and they banned the drugs, that led to more violence, and we’re here today. Right there.

Audience Member #11

Judge Gray, I’m a public defender for 22 years and, as you know, we have a new proposition in California, Prop. 36. I’ve written a couple of articles on it, one of them in The Daily Journal headlined the 4th of September, “Public Defenders Should Cripple the War on Drugs.” And as you know, Prop. 36 provides, the first time in American jurisprudence as far as I know, that you can go to trial on a felony case, a felony possession of drug charges, and upon conviction, the worst you can get is drug treatment.

There are some exceptions—three strike cases where people violate—but I have tried to enlist public defenders who will represent 95% of all defendants charged under Prop. 36, to clog the courts, to try every Prop. 36 case, in order to make the war on drugs too damn expensive to continue. But public defenders, and I’m talking at the administrative level, are afraid to do that. They’re afraid to rock the boat.

My boss wrote an article in opposition to my position because he says I would be denying people treatment. Well, I tell you this, upon acquittal people are still entitled to get into treatment, and it would be self-initiated. We need the leadership of the bench to encourage public defenders to try every one of these Prop. 36 cases. The ones that I have denoted no risk cases. And I want to know what your thoughts are on that.

James P. Gray

That is not going to happen. It is inappropriate, I think, for a judge to recommend to public defenders to do anything. It is inappropriate for a judge to recommend to prosecutors to do anything. We do have a separation of powers.

It is clear, everybody in the criminal justice system knows this, that if the defendants were to all of a sudden decide all to go to trial, you’re right, we couldn’t get anything done, because we rely upon the fact that something like 95% of all of the cases will end up in a plea, one way or the other.

But you have to understand, we are judges, we are neutral, and we are required to uphold the law. It is inappropriate for judges to talk about numbers of areas. I didn’t know before I had my press conference back in April 8, 1992, whether I would be able to keep my judicial scalp by talking about this thing publicly, because it might have been unethical.

There was a group that I called of fellow judges who were there to give advice when we had ethical dilemmas, and I spent an hour and a half over lunch talking in a conference call with five other judges who were on this committee and they—before I did this. Two of—they ended up splitting. That’s what happens with judges. Two of them said, “Don’t do it. This is an ethical violation.” The other two said, “Ah, I think it’s probably OK.” And the fifth one couldn’t make up his mind.

So, you’re holding too much power up for judges. Judges should be quiet on that issue as far as I’m concerned and just adjudicate the issues presented to them.

David Theroux

This gentleman in the back has had his hand up for quite a while. Right in the corner.

Audience Member #12

I’m wondering if you’ve seen any movement in corporate America, specifically the pharmaceutical companies, toward supporting legalization mostly for the profit involved with the production and sale?

Vaughn Walker

Actually, yes. Not in pharmaceutical companies. I suggested several years ago, this was 10 years or so ago to a friend of mine, who at that time, worked for Phillip Morris; that Phillip Morris ought to get in the marijuana business. It seems to me like putting the state into the drug business, it would be a great idea. You know where to reach Phillip Morris, you know where to serve them with a subpoena. They’re subject to regulation, they’re subject to controls, the purity of their substances could be measured and so forth. Whatever else you want to say about Phillip Morris, they’re out there, they’re public, they’re responsible in this sense, and it would be a vast improvement to put the distribution of these substances in the hands of such entities.

At the time I made that suggestion he was, of course, horrified to think that a friend of his would think that a buddy was a drug dealer, a drug peddler, but I think the events of the past eight or 10 years have not been lost on the tobacco companies. They’re now admitting that they sell a harmful and addictive product, which isn’t any different from the kinds of narcotics that are being sold.

And so, I do believe that perhaps in the not too distant future, you may begin to see some folks at these entities realize that there is a role for them to play. And I think it would be oddly enough a constructive development.

James P. Gray

Let me add something to this too. Maybe you haven’t focused on this. My eyes were opened a little while ago. Are you aware that the cigarette and alcohol industries donate large monies to, for example, the Partnership for a Drug-Free America, and all this sort of stuff in order, to reinforce the distinction between legal drugs on the one hand and illegal drugs on the other? Why? Because they don’t want that competition.

Now, you could go to Phillip Morris or whatever, and it’s a natural, or you could go to the Northwest United States, too, where the timber industry is pretty much kaput, and they could raise hemp. Read my book; I wouldn’t legalize very much, meaning aspirin is a legalized drug. There’s no age restrictions, it’s—
the price is set by the free market. That’s not what I want to do with cocaine, for example. But for hemp, do it. Simply get this into the commercial market and allow it to be fully legalized and then we can re-institute this entire industry and it’s stupid not to. But let’s realize money talks in this thing. Money is very important.

David Theroux

This gentleman right over here, Carl, had his hand up too.

Audience Member #12

I’m wondering if you believe it would be possible for one of the Federal Government agencies in the phalanx in the drug war to unilaterally pull out of the drug war?

James P. Gray

No.

Vaughn Walker

No.

Audience Member #13

You have referred to legalizing the drug and holding an individual responsible, but is that realistic? Just recently we saw the case in Los Angeles where the jury awarded an obscene amount to a man that admittedly had smoked cigarettes for 40 years.

James P. Gray

Well, first of all, please, no one leave this room believing that I have recommended that we legalize anything except hemp and needle exchange. I wouldn’t legalize any of these drugs, although it would be far superior to what we’re doing now. But there are better ways of doing it. Bring it under strictly regulated control.

With regard to this cigarette stuff. First of all, I’m not an expert, and I haven’t followed any of this, but my understanding of these cigarette laws is, not because people have been smoking cigarettes. They knew full well that they were harmful. They’ve known that for years. They have this warning label on them and everything else.

The gravamen of those cigarette cases was that the cigarette companies, the manufacturers jerry-rigged it, made it more addictive in order to get people hooked and continue to be hooked. So it wasn’t because they were selling a natural product, it was because they were making it an unnatural product and then lied about it. So that was the basis for those suits.

The easier one to get any trouble with is, OK, if we were to have this program of regulated distribution for cocaine, for example, which I do advocate strictly regulated controls, then what’s to keep you from suing the Federal Government if, in fact, you go out and commit these problems. And that’s just like the Dram Shop Laws, for example, where if you are a bartender and somebody is noticeably impaired by alcohol, and you know that and give them further alcohol, you can be legally responsible. But if you go to a liquor store and buy a fifth of Jim Beam, and then go outside and chug-a-lug and die, still the liquor owner is not responsible. So it just depends what the circumstances are, and that’s what we’d be facing.

David Theroux

Just three more questions. The gentleman in the glasses right there. Yes.

Audience Member #14

The United States government, since at least 1932, when Harry Anslinger was in charge of the drug war in that incarnation, has had the opportunity to win its war. And as we’ve all noted tonight, they haven’t done so. What is to prevent those of us who can write and those of us, who can put together a program, to put together a model set of regulations and laws and propose that for a five-year period the old laws be scrapped and a new set be tested to see if, indeed, our ideas are correct? While I don’t suggest that this is the way that a political process would unfurl, I suggest that that’s a way of engaging the public in the debate in a very productive manner.

Vaughn Walker

Absolutely.

James P. Gray

I think that’s a very good suggestion. It’s—my suggestion is—in my book is to adopt the concept of federalism. That means get the Federal Government out of this like happened when we finally repealed alcohol prohibition. That didn’t say alcohol is hereby legal in all the States, that just said the Federal Government no longer gets to play in this, except to help each State enforce its chosen laws. That’s what we should do, and then you, if you’re in Delaware or Virginia or California, you can do what you think is right. What I think you suggest here is a phenomenally good idea to spark more discussion. I hope you do it.

Audience Member #15

What do you mean when you say strict regulated control?

James P. Gray

What do I mean when I say strictly regulated control?

Audience Member #15

We have control. It works beautifully, doesn’t it? [Laughter.]

James P. Gray

No matter what system anyone puts in with regard to this area, there are going to be some problems hands down. No one can design a system that will not have problems. You want to reduce the problems, as we’re talking about.

In my view you have the problems—now there are no controls whatsoever like I talked about before except those instituted by the mob with regard to these illegal drugs. At least with regard to alcohol and cigarettes, you have some age restrictions. They’re increasingly enforced, and you have more accountability. You have licensing, you have quality control. So what, again, I’m saying is bring the drugs back under the law and try to then enforce the laws; you have some laws where today we have none. But you’re still going to have some problems. How? Read my chapter on the regulated distribution.

Audience Member #15

You have to be 21 to shoot morphine?

James P. Gray

Yes.

Audience Member #15

We’d decriminalize it.

James P. Gray

Well, OK. He is bringing up different terms. I go to great pains in my book to define different terms. That regulated distribution is not the decriminalization. I don’t have time to go into these things now. All of these terms mean something different. We’re trying to reduce the harm that can and will be caused from the presence of these drugs. Regulated distribution brings them back under control. They’re still going to be abused, they’re still going to be problems, but I manifestly guarantee you there will be fewer problems under that system than what we have today.

Audience Member #16

Hi, I have a comment and a question. The comment: I work for an elected official locally who’s done a lot of work on medical marijuana, and in regard to the 30 million people that you were discussing earlier, I live in a pretty basic middle class neighborhood, and every time I mention the work I’ve done on medical marijuana, three quarters of my neighbors say, “Oh, I smoke pot, don’t tell anybody,” and none of the neighbors know that all of them are doing it. So it’s kind of funny.

But my question is, what can we do, what sort of legislation can we introduce on a local level? We’ve been frustrated. All of the talk of the concepts and the theories are wonderful, but it seems that the Federal Government holds all the cards, and the Congress to get 435 votes, or half of that seems virtually impossible. What else can we do beyond 215, beyond Prop. 36, how can we take it further?

Vaughn Walker

Well, you can keep passing those local laws, because sooner or later, as Judge Gray mentioned, the Federal Government has limited resources and the limited ability to go after noncompliance with Federal statutes. And, of course, you have to comply with Federal requirements, just as anybody else does who’s subject to Federal regulation.

But the important point is the folks in Washington have ears, and when they hear that the City Council of Oakland has done this, that or the other thing or the City Council of Fremont or Vallejo or whatever it is. That is heard. That’s heard loud and clear in the halls of Congress, and the message will sooner or later be heeded. So keep doing it and even if it doesn’t work this time, know that there’s always tomorrow.

James P. Gray

I think I would be remiss. We’re all frustrated. We all want to be able to do something. Write your Congressman. That helps. Write your city officials, your local elected officials if you’re in their district. That helps.

But there’s something else. The media is enormously powerful in this area, and if people want to do more, log in on a Website, www.drugsense.org, or the Media Awareness Project, the MAP program. It’s the same thing. They have an absolutely wonderful program to hold the media accountable. If they make a misstatement, these folks jump on them and correct it. But there are things that we can do. The media is very valuable.

Let me leave you, because I guess that was the third question, and we probably need to wrap this up. I think that’s what David is standing here for. There was a man who was talking, and he said, “You know, when my grandmother turned 75 years of age she started walking five miles a day. Now she’s 79 and we haven’t the faintest idea where she is.”

And in the same way, back the way Judge Walker was talking in the 1800s, and then in 1914, and the rest, for whatever reasons all of which were having nothing to do with health and nothing to do with safety, but for whatever reason we pass these various laws of drug prohibition, and I suggest to you we haven’t the faintest idea where these laws have taken us. It’s time that we legitimize that discussion, it’s time that we open our collective eyes to our options and then we will realize where we are. We can do this, and in fact, it’s our fault that we have perpetuated it so long. So let’s get busy, let’s not just say well, we’ve done our good deed for the night, because we spent the evening together. We really can and must do more.

So I appreciate the opportunity of being with you. Thank you, David, for the invitation. Thank you for being with us.

David Theroux

I want to especially thank both Judge Gray and Judge Walker for joining with us and making their wonderful presentations. I also want to thank Judge Gray especially for his book, which, again, I hope everyone will get a copy. And I want to especially also thank all of you for joining with us and making our event this evening so successful.

Two small things I might leave with you, which is an extension of something that Judge Gray mentioned. By 1997 in the United States, state and local agencies reported that almost 700,000 marijuana arrests, of which 87% were for possession, had occurred. In other words, in the U.S., someone is arrested for a marijuana offense every 45 seconds, and this total number of arrests for all murders, rapes, robberies and aggravated assaults is almost exactly the same as the number of marijuana arrests. So the emphasis in our society is obviously greatly out of kilter.

For those of you who don’t have a copy of Judge Gray’s book, Why Our Drug Laws Have Failed and What We Can Do About It, there are copies upstairs. He’s indicated he’d be delighted to autograph copies for those of you who have not gotten your copy autographed. Again, thank you for joining with us. We hope that you’ll join with us at our next event. Goodnight.