“THE ANSWER IS: IT DEPENDS” = by Judge Jim Gray

“THE ANSWER IS: IT DEPENDS” - by Judge Jim Gray 08/10/08

One of the lessons I learned in law school was that the answer to most questions is: it depends. What does that mean? Well, before you can give a reasoned answer to a question, you should know the circumstances and the context in which the question arises.


Another and slightly bawdy way of saying this is illustrated by one man asking another man the question “How’s your wife?” with the answer being: “Compared to what?”


Children often do not understand or employ the “it depends” way of thinking. For them things are usually “all or nothing.” But when they mature they begin to realize that the answers to most questions depend upon the situation, and the risks or benefits of action or inaction. Even though most adults innately do understand this approach, many do not employ it consciously.


One example of where a question cries out for an “it depends” answer is whether or not we should drill for oil off our coasts and in Alaska. For people to think only in terms of “drill everywhere,” or “drill nowhere” is shortsighted to the extreme. Some important issues to consider are: Where is the oil? How can it be reached? What are the risks of oil spillage or other potential pollution problems at a particular site? Will the extracting company be bonded for environmental problems? Of course all of our land is sacred, but is this site particularly unique or picturesque? In addition, will new developments in technology allow the oil to be extracted a longer way from the drilling site? Only when we get answers to those and other similar questions can we begin to make intelligent decisions on the issue.


The same myopic arguments of all or nothing were utilized by some people in the debate several years ago about whether or not we should have constructed the Alaska pipeline. Fortunately, other more sophisticated people used a risks and benefits analysis, made some modifications to the original proposed plans, and then went ahead with the project. Not only has the pipeline been successful, I am actually not aware of any significant problems with it at all. So for our elected officials now to take positions of all or nothing regarding offshore or Alaska drilling is irresponsible, and even insulting. We are smarter than that; why aren’t they?


When you think about it, most issues lend themselves to a similar risk and benefit analysis, as symbolized by the “it depends” answer. That even includes issues about our country’s security. For example, should our government be able to wiretap telephone conversations between people here and countries like Libya, Pakistan and Iran? The answer is (all together now): it depends. What is the threat to our security, and how immediate is that threat? What are the opportunities for the government agents to seek and obtain a judicial warrant? What do our Constitution and judicial precedents say about this situation? In other words, what are the risks and benefits both regarding our security and also regarding our precious liberties?  


The same is true about so-called mandatory minimum sentences in criminal cases. Should a defendant be sentenced to a minimum of 15 years in prison if he has been convicted of a particular offense? The answer once again is, it depends. What were the circumstances of the offense? Who is this defendant, and what is his background and past criminal record? Who were the victims and how severely were they injured, if at all? It is simply not possible for the legislature, or anyone else, to come up with an appropriate sentence in advance, because there is no way they can have answers to those and other similar critical questions. These laws have resulted in some criminal sentences that are deeply inappropriate both for the defendants and their families, and also for the taxpayers.


But there must be some issues that are so clear that the “it depends” answer is not necessary. For example, what about questions concerning the safety of our children? Well, here again it depends upon the situation. Should we not trust any children to cross any street by themselves until they are in high school? That is a certainly a risky activity that can threaten our children’s safety. But it depends. What are the ages of the children? What kind of streets are involved, and what are their safety features? These questions should be answered before decisions are made. Similarly, there are also definite risks in dating, so should girls not be allowed to date until they are 21? So once again, even though these are important issues, the answer still is that it depends.


Nevertheless, we do not want to descend into moral relativism either. There certainly are some things about which a moral society will not compromise, and in those cases the “it depends” answer does not apply. For example, the answer to questions about slavery, apartheid, the sexual abuse of children, and Hitler’s extermination of millions of Jews, gypsies and others is not “it depends.” In my mind there are ambiguities about many or even most issues in the world, but not those. In fact, I will go so far as to say that in some areas there is even an Absolute Right and an Absolute Wrong Answer, but I may not always be intelligent or perceptive enough to know what that answer is. But to further elaborate on those areas of religion and philosophy is far beyond the reach of this column.  


So what is the point of this column? Too often many people, particularly those in government, fall into an “all or nothing” discussion about issues that is based upon politics or emotion or both. Instead, I hope this column will help you to encourage those people publicly and privately to use a cost/benefit approach. That will result in more intelligent decisions being made for us all.


Finally, should a cost/benefit approach be utilized in the next important issue that you will be confronting? The answer is, of course: it depends.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.