Reviewed by Christopher Farrell, Independent Scholar.

Raising two specific questions in the title of his book, Judge James P. Gray provides a definitive objective for his text. Gray, a trial judge in the Superior Court in Orange County California, called a press conference on April 8, 1992 to announce that, "our country's attempt through the criminal justice system to combat drug use and abuse, and all of the crime and misery that accompany them, were not working." His book provides a comprehensive defense of that indictment, but judged solely in terms of the questions raised in the title, Gray falls a little short. The first question, strictly speaking, he barely addresses at all. The section titled "Our Drug Laws Have Failed" presents evidence that they have failed and documents the harm that results, but it never explicitly tells us why. Conversely, it's only a very strict interpretation of his second question-what we can do about it-that gets a satisfactory answer. Gray has some very useful suggestions about what America might do about it's drug laws, but on the broader question of what we might do about drug abuse, the judge's account is long on faith and short on convincing details.

Gray provides an interesting historical overview, locating the beginnings of narcotics addiction in "the liberal usage of morphine and opium as painkillers by mostly northern military hospitals during the Civil War." Other addicts grew dependant on narcotics because of the large doses of cocaine and morphine in patent medicines. The Pure Food and Drug Act of 1906 didn't prohibit the use of the narcotics but required disclosure when they were added to elixirs promising relief from pain and ailments. The result, according to Gray, was a "prompt, substantial and permanent decline in the sales of these products." But the passage of the Harrison Act in 1914 (strictly limiting the distribution of opium, cocaine and their derivatives) and the Supreme Court decision in WEBB v. UNITED STATES (prohibiting doctors from dispensing prescription drugs to treat narcotics addiction) inaugurated what Gray labels the Drug Prohibition era. "Thus our country was launched into wide-scale criminal activity, both by sellers, in order to make inflated underground profits, and by users, in order to obtain the money to buy the now higher-priced drugs." The years since 1914 have featured a raft of measures that have increased the list of controlled substance, the penalties for sale and possession of drugs, and the money spent on policing and prosecuting their use and sale. None of the laws has produced a permanent reduction in the number of people using drugs, but they have produced an explosion of the prison population.

Besides being the single most important factor in the incredible growth of the prison-industrial complex, according to Gray, the "War on Drugs" has caused grievous harm to communities "awash in illicit drugs," eroded our protections under the bill of rights, increased the misery of drug users and encouraged a widespread mistrust in government. He argues that it's impossible to totally suppress the supply if illegal drugs as long as the demand for them remains, so that the real effect of partially effective drug interdiction is to raise both the price of drugs and the potential profit for drug dealers. Increasing the incentive for drug dealers to operate means that in the long-term, more drugs, not less, are introduced into the community. It also increases the violence associated with the drug trade, and the victims of the violence are often residents of the communities where drug sales flourish who have no personal connection to the business. The War on Drugs also hurts drug addicts themselves, he argues, and not simply through incarceration. The illicit status of drugs encourages the demonization of addicts, who bear a stigma far greater than those who use alcohol or tobacco. There is also a direct impact on the health of drug users (beyond that of the effects of the drug itself). Illicit drugs may be impure or of varying strength. It is difficult for those who inject drugs use hygienic methods, and "laws push drug users away form medical professionals who can help them." Finally, there is pressure on users to engage in dangerous criminal activities to support their habits.

Judge Gray's background provides expertise for his discussion of the erosion of the protection of the bill of rights. His account of changes to the criteria for obtaining a search warrant since 1971 is instructive: ILLINOIS v. GATES allows anonymous tips; a warrant is not necessary for the search of a vehicle (including the glove compartment or a locked trunk--SOUTH DAKOTA v. OPPERMAN. WYOMING v. HOUTEN allows the search of passengers within a car if there is probable cause to search the vehicle itself. What's missing from Gray's analysis, however, is an alternative legal theory in these cases. Although it's easy to join the jurist in lamenting the result of these decisions, it would be interesting to read his dissent from the various courts' findings on legal grounds. Gray gives a detailed account of the Supreme Court case that allowed the government to kidnap foreign nationals outside the country and bring them to the U. S. for trial. "But how would we respond," Gray argues, "as a court system and as a country if agents of a foreign nation decided that, for example, the directors of one of our large tobacco corporations should be tried in their country for manslaughter ... if they kidnapped the tobacco company CEO and took him to their country for trial?"

The problem with Gray's argument is that he seems to be indulging in the same impulse that motivates many of the more objectionable decisions resulting from the collision of individual freedoms and the drug war-the focus is on the potential result of the decision rather than on the law. Many abuses of the legal system, he suggests, occur because "trial judges and magistrates, at least subconsciously, also want to get these drugs off the streets," and they allow their desire for a preferable result to interfere with an accurate interpretation of the law. Gray has the experience and the opportunity to return our attention to the law itself, and his failure to take advantage of the opportunity is one of the disappointments of this book.

His other major failure is the refusal to face explicitly the question of why our drug laws have failed, even when a persuasive explanation surfaces implicitly many times over in his account. Gray's own demonstration that drug laws have failed for decades to "combat drug use and abuse" should lead him to ask whether he can safely assume that reducing drug abuse really is the purpose of those laws. Although the War on Drugs may have failed to eliminate addiction, it has, in Gray's account, succeeded in many other respects--in limiting personal freedom, in increasing police and government surveillance of citizens, in providing larger budgets for police forces and useful rhetorical fodder for politicians seeking re-election.

Although the evidence that the drug laws have not failed, but have succeeded in filling purposes very different from their ostensible motivations is easy to find in Gray's book, he carefully limits his investigation to never draw the obvious conclusion. In presenting nine "threshold points," stipulations readers are supposed to accept as a premise for "common understanding," the judge includes an astounding statement about police. "Law enforcement has been doing a magnificent job in attempting to enforce our current drug laws." It's hard to reconcile this with Gray's argument that potential profits in drug dealing are so large that some individual law enforcement officers will inevitably be corrupted by the enormous amounts of money involved. Even more telling is his account of the death of Donald Scott, shot when government agents attempted to serve a search warrant on him at his two-hundred acre ranch. A report by the Ventura County District Attorney's office concluded that the raid was mounted, "at least in part, by a desire to seize and forfeit Scott's $5 million ranch." Here the offense is not of individual officers corrupted by the desire for illegal gains, but official policy of the Los Angeles sheriff's office, the Los Angeles Police Department, the Drug Enforcement Administration and others to confiscate property for the financial benefit of their various organizations. If Gray can report this (and other similarly outrageous activities by law enforcement) and still conclude that they are doing "a magnificent job," it's not surprising he'll resist the genuine answer to his question, "Why have our drugs laws failed?"

Regarding his second question, what we can do about it, Gray provides some sensible suggestions for the "De-Profitization of Drugs," a term he finds is both more accurate and more amenable than legalization. Through decriminalization and regulated distribution, Gray suggests, we can put most of the control of drugs outside the criminal law. This would have the immediate effect of eliminating the harmful effects of the Drug War-the epidemic of incarceration, the crimes committed to provide the artificially inflated cost of drugs, the corruption of police agencies and the incursion on the Bill of Rights. Gray honestly admits that he cannot guarantee such measures would not, at least in the short term, increase the use of currently illicit drugs, though he suspects it would not. He does offer some detailed and useful accounts of dealing with the problems of addiction-needle exchange, drug substitution and drug maintenance programs. However in the realm of drug treatment-curing addiction-he can offer very little. Again, Gray avoids the explicit expression of an idea implicit in his work-we may have to accept some level of addiction in society because attempts to exterminate it completely are more harmful than the addiction itself.

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Copyright 2001 by the author, Christopher Farrell.