2 PARAGRAPHS 4 LIBERTY: #231 "HARM REDUCTION"

       According to President Nixon’s Attorney General Richard Kleindienst, back during the Nixon Administration the choice was made to pursue an incarceration approach to drug problems instead of one involving treatment, even though they knew that treatment worked and incarceration did not.  Why was this done?  Because Nixon anticipated that the political benefits he would reap in being perceived as being “tough,” and fighting against something that could not fight back, would be significant.  And, again according to Keindienst, the actual political benefits were far greater than anyone anticipated.  But we all have been saddled with many tragic results from that choice ever since that time.

         Of course, the presence of mind-altering and sometimes addicting drugs in our society brings harms.  But reasonable estimates are that the drug usage itself brings only about 10 percent of those harms.  The other 90 percent comes from the drug money.  In addition, since no society has ever been without some of these substances, except maybe the Eskimos because they couldn’t grow anything, we should recognize as adults that harms will result from the presence of those drugs – and invoke a policy to reduce those harms.   Think of it this way: we can’t even keep these drugs out of our prisons, so how can we expect to keep them out of our communities?  (Charles Manson was transferred from one California state prison to another because he was found to be selling drugs from his prison cell – and he was in solitary confinement!)  And since, as stated above, one of the approaches that works is drug treatment, which also includes overdose prevention and care and needle exchange programs, those approaches should be emphasized.  (The old saying is that dead addicts can’t recover.)  Of course, this approach includes enforcement through some incarceration for those whose addictions push them into criminal conduct, such as driving under the influence, burglaries to get money to purchase drugs, etc.  So please use your Liberty and actions to help us steer away from the mindless incarceration of drug users we have followed since the Nixon Administration.

Quote for the week:  “And remember the truth that once was spoken: to love another person is to see the face of God.”  (From the musical Les Miserables)

Judge Jim Gray (Ret.)

2012 Libertarian candidate for Vice President, along with

Governor Gary Johnson as the candidate for President

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“IS OUR COUNTRY AT WAR” by Judge Jim Gray

“IS OUR COUNTRY AT WAR” by Judge Jim Gray 01/13/08

Is our country at war? That is a question that must be asked, because there are many important consequences for being at war. So are we? Well, the answer is no, we are not at war.  


The reason for that answer is actually quite simple and straightforward: Congress has not declared war. Article I Section 8 of the United States Constitution decrees that only Congress can declare war, and it has indisputably not done so. Passing resolutions is not the same thing as declaring war. So in the first place, our country is not at war in Iraq, and secondly, since one simply cannot effectively be at “war” against a thing, an idea or a group of people that is not a nation, we are also not involved in a so-called “War on Terrorism” either.


Some have argued that this is a naïve approach to today’s life, and that as a practical matter Congress has not declared war since the Japanese attacked Pearl Harbor in 1941. So, they argue, the declaration requirement in the Constitution is just an unnecessary formality. While it is true that there were no declarations of war before we fought in Korea, Vietnam, Panama, Serbia, the Persian Gulf or anywhere else since 1941, this is not at all a naïve distinction.  


The Drafters of the Constitution not only were not naïve, they were brilliant. They knew that the decision about whether to go to war or not is one of the most critical decisions that a country can make. That is why they required the protections of a specific procedure to be followed before that event could occur.  


Of course, every war will always have its dissenters, and that certainly included World War II. But regardless of where each person may stand on the issue of our military intervention in Iraq, had we followed the mandates of the Constitution and placed the issue of whether or not actually to declare war upon the regime of Saddam Hussein directly before Congress, our country and the world would clearly be in a better position today. And that would be true no matter what Congress’ decision had been.


A request to Congress from the President for a Declaration of War would certainly have been followed by a fuller debate than the ones we had both in Congress and around the country. Questions would have been asked, and reasons and alternatives explored. For example, is the regime of Saddam Hussein a serious threat to the security and well being of the United States? If so, is actual war the best way to combat that threat, or are there other viable alternatives? If we go to war, what are our goals, and how will we know when those goals have been achieved? Once we have succeeded militarily, what should we do to keep the peace? What are the important areas to protect right after the fall of the Hussein regime, such as ammunition depots, museum artifacts, electric power generating facilities, etc. Also, is it more important as well as less costly to put the people of Iraq back to work building and rebuilding their country themselves, instead of awarding those contracts to large American companies?


Another clear benefit had we followed the dictates of the Constitution would be that the people of our country would quite likely have been much more united behind the effort had Congress decided to declare war after a full debate. This reality cannot be understated.


Now it is certainly true that Congress has passed some resolutions since World War II allowing military force to be used in different places at the discretion of the president. One of the most famous was the Gulf of Tonkin Resolution that allowed President Johnson directly to commit troops to fight in Vietnam without a Declaration of War. Others were when Congress affirmed the 1991 War Resolution passed by the United Nations and thereby allowed the first President Bush to commit troops in the liberation of Kuwait; the Iraq Liberation Act of 1998 under President Clinton that stated it was the policy of the United States to seek a regime change in Iraq and to promote a democratic government in its place; and the Iraq Resolution in 2002 that allowed the second President Bush to send military troops to fight in Iraq. And it is also true that these were preceded by some debates.


But we cannot and must not go to war on the sly. Passing resolutions does not take nearly the courage that passing a Declaration of War does. In fact, today a post office bill seems to get more congressional deliberation than passing a resolution to send American troops into armed conflict.  


And make no mistake about it, this situation is not the fault of a president. The pressure for our nation’s presidents to keep us safe is overwhelming. No, it is the members of Congress that have failed in their constitutional duty. Basically Congress wants to have the power without the responsibility for their actions. Shame on them all!  


In a similar fashion, we must understand that neither our country nor anyone else can effectively be at “war” against a thing, an idea or a group of people that are not a nation. For example, just as there can not be and is not a “War on Drugs” or a “War on Poverty,” there is no such thing as a “War on Terrorism.” Such a concept is a great thing for politicians to rally against, but otherwise it serves no practical or positive purpose except to scare people and to concentrate more power in the hands of the politicians. And, of course, to serve as a vehicle to get politicians elected and re-elected.  


As an example, how possibly can the “color-coding” of our degree of fear for the moment possibly be productive? Are you aware that since it was initiated, we have never been below a “stage yellow,” which is an elevated state of preparedness? Can you imagine that our politicians will ever declare that our alert stage has reverted to green? Accordingly, this so-called “war” will never be over. The dangers that we face are certainly real, but they are better thought of in a different fashion.


Does this distinction matter? Yes it does, it actually makes a critical difference. Why? Once again the Drafters of our Constitution were brilliant. Today many people, even citizens of our country, are being imprisoned for indefinite periods of time without charges being filed against them and without them having access to attorneys or our courts. We have also seen the interception of telephone calls of our citizens from here to other countries, and we have all heard allegations of kidnappings and torture at the hands of some agents of our government. And all of these actions have been justified because “we are at war.”  


Of course some of the people in our custody are dangerous. But our response should take into consideration a saying we used back in the days that I was a federal prosecutor in the United States Attorney’s Office in Los Angeles: “If you lie down in the gutter with dogs, you will get up with fleas.” If we lower ourselves to the level of those radical people who would do us ill, we will get up in the morning with the same fleas that have infested them.


In addition, by pursuing these actions we are actually accomplishing some of Osama bin Laden’s goals for him. Because by our government engaging in these acts, we are abandoning what is America. The soul of the United States of America is in our freedoms and constitutional protections. If we do not uphold these safeguards to liberty, we will no longer be a beacon for a better world. And this will result in our country of Jefferson, Washington and Ben Franklin being just like every other country, which is exactly what bin Laden wants people to believe.  


Is there a threat by Al-Queda and other similar organizations to our country and to our safety and well being? Undeniably, the answer is yes. But as a fact of life, we simply cannot protect ourselves from every threat that the zealots and cowards of this world might be able to concoct. Yes, we can attempt to control bombings on our commercial airliners, and we should try to do so, but what about in every train station? Does anyone really think that even if we give up all of our constitutional protections that we can possibly protect every highway bridge or tunnel in our country from a terrorist act, or every theater, stadium, school or shopping mall? The Soviet Union tried to do this in Afghanistan and Chechnya, and failed.  


The answer is to treat these threats and even attacks as the critically important police matters that they are. The primary protection against them is good intelligence, and we have been derelict in reducing the capabilities of our nation’s intelligence-gathering community. Additional protections come from all of us being vigilant, and training and equipping our law enforcement officers in the best manner possible. But otherwise, we must be mature and sophisticated in understanding that there are some threats in life from which there are no protections, and we should go on about our normal lives.


Furthermore, by saying this is a matter for the police does not at all mean that we are minimizing the potential threats. Even though criminal gangs like those of Al Capone, the Crips and the Bloods have presented definite and even severe threats to public safety, Congress did not declare war on them. It is a police matter. The same is true for groups of people like Al Queda that are basically non-nation states. Of course, if Al Queda had the protection of the government of a country like Afghanistan on September 11, 2001 when it committed an act of war upon the people of our country on our soil, in my opinion we had every right to respond as we did. But Congress should first have declared war before we did so.


In addition, just because these are matters for the police does not mean they will only be handled by the local sheriff. The FBI and CIA are police and law enforcement agencies, just as I am as a judge, and we will all be called upon to enforce our nation’s laws and hold people accountable for their actions. So the matters will still be taken seriously, but without all of the clammer for reducing our liberties because “we are at war.” 


So what can each of us do to protect our values, our laws and our Constitution from the attack it is under today? We can refuse to use the term or even the concept of a “War on Terrorism,” with the understanding that there is no such thing. And we can refuse to abandon our cherished liberties under the Bill of Rights.


Don’t give in to politics. Understand that if politicians really wanted to reduce the ability of those radical people to harm us, they would do the one thing that would most cripple them: repeal Drug Prohibition. The primary funding for terrorists all around the world is the money received from the sale of illegal drugs. In fact, Drug Prohibition is literally the “Golden Goose” of terrorism. There will always be radical people in the world who want for whatever reason to harm us and others, but they will be a great deal less dangerous if we take away their funding. But politicians still refuse even to discuss this fact of life.  


So we must follow the procedures brilliantly and forthrightly set forth by our Founding Fathers. Demand full disclosure, full debate and then a vote from Congress before we go to war. Then we will be justly committed as a country to the result, and God help those who stand in our way.


So no, for the reasons discussed above we are not at war. But without a constitutional Declaration of War, we will also never be at peace, because these undeclared conflicts will politically never be allowed to end.

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.

WHY ARE WE STILL DOING THIS? by Judge Jim Gray

WHY ARE WE STILL DOING THIS? (11) - by Judge Jim Gray 10/01/07


  Let us face facts and let us not mince words: Our nation’s policy of Drug Prohibition is not working. As a matter of fact, this policy is actually causing much more harm than the prohibited drugs themselves would ever be causing on their own – here and everywhere else around the world. And the irony is that we could literally bulldoze the entire country of Colombia, and even take Ecuador and Peru with it, and that would not make the slightest difference whatsoever with our drug problems in our country. Why? Because if the demand is here, the demand will be met. And if the demand is not met by drugs from Colombia, Ecuador or Peru, it will be met by drugs from Afghanistan, Nigeria or Thailand. Or even here in California! Today marijuana is the number one crop in California. (Number two is grapes, if you care.) In other words, we have failed to repeal the Law of Supply and Demand, and amazingly enough continue to express surprise at that result. And what is worse, we do not even let ourselves discuss the subject!


  In normal life if something does not work, we recognize that reality, explore our options and try something different. But even though virtually no one will say that our War on Drugs is working, we continue to spend ever more money and other resources on something that has been proven not to work. “If spending lots of money didn’t work, we’ll just have to spend much more” seems to be the philosophy.


  The evidence of the failure of the War on Drugs is all around us. Today illicit drugs almost literally could not be made more available if we tried. Look at it this way, people in prison can get all of the drugs they want. It costs more money, but they are fully available. For example, Charles Manson was transferred from Corcoran State Prison in California to a different facility a few years ago because he was found to be selling drugs from his prison cell. And he was in solitary confinement! So if we cannot keep drugs out of our prisons, what makes us think that we can keep them off the streets of any of our towns or cities?


Every day in our nation’s newspapers there are articles about violent deaths being caused not by drugs, but by drug money. With great fanfare we destroyed the Medellin Cartel. But did it make any difference? No, within just a few months the Cali Cartel was up and running. Now we have destroyed the Cali Cartel. Has it made any difference? Again the answer is no. Illicit drugs are just a big and successful a business as ever.  


As an example, just a few years ago the head of the United States Drug Enforcement Administration was quoted as saying that at any one time about 200 tons of cocaine are being warehoused in Mexico within three miles of the U.S. border just waiting to be smuggled into our country to any place where there happens to be a shortage. In addition, even though our government has spent about $470 billion on “Plan Colombia” with our military actions and spraying of herbicides in rural areas, the cost of Colombian cocaine in our country today is only about one-third of what is was in the 1980s. Of course, we are also seeing the same results in Afghanistan with heroin. And in case you have not noticed, violence if not actual warfare caused by drug money has broken out in Mexico along our border, and has literally spilled over the border into the Southwest United States.

 

Even when the police are successful in seizing a large quantity of drugs, that only temporarily reduces the supply, which increases the price of the drugs and in turn increases the incentives for people to sell them. The end result of this economic reality is that the policy of Drug Prohibition is doomed to failure, which means that “victory” increasingly is simply being defined as slowing down the pace of defeat.



When I discuss this issue publicly, the biggest argument I hear in favor of maintaining our policy of Drug Prohibition, “with all of its defects,” is that changing it would “send the wrong message to our children.” So what about our children? Actually our policy of Drug Prohibition is literally putting our children in harm’s way for each of two deeply disturbing reasons. First, it is easier today for children to obtain any illicit drug, if they want to, than it is alcohol. Why? Because illicit drug dealers make money by furnishing it to them. You might say that no one wants your teenage children to become addicted to cocaine, but you would be wrong, because some people make a great deal of money if that happens. As a result, lots of drug dealers offer free samples of illicit drugs to our children, even on their school campuses. Of course, that does not happen with regard to other sometimes dangerous and addicting drugs like alcohol and tobacco. Why? Because when we make drugs illegal, we give up all of our ability to regulate and control them. That means that by default the strength, quantities and purity levels of the drugs that are being sold and the age restrictions for the buyers are exclusively controlled by the illicit drug dealers, and they don’t ask for i.d.!


Secondly, and I saw this happen continually when I was a federal prosecutor, and later when I was presiding over a juvenile court calendar, every day adult drug sellers recruit our children to help them in their scurrilous business. Why? Because for a relatively small amount of money and the threat of violence, adult drug dealers can have all the young people they want to use as “go-fers,” lookouts and couriers, etc. And then just as night follows day, as soon as the reliability of the young people has been established, the adults trust them to sell small amounts of drugs in their communities. They do this, of course, so that the youngsters make more money, and so do the adults. So then ask yourself this question, when teenagers sell drugs in their communities, who do they sell to? Us? No, they will naturally sell to their teenage peers, thus recruiting more and more young people to a lifestyle of drug usage and drug selling. It is not a pretty sight, and it is all directly caused by our failed and hopeless policy of Drug Prohibition.


Yes, once we finally came to our senses and repealed Alcohol Prohibition we were still left with problems of alcohol misuse, abuse and addiction. But at least we were no longer plagued with the Al Capones and their violence and corruption, as well as the medical problems presented by the lack of quality control for the “bathtub gin.”


What should be our plan instead? In my view, we should resume using the Criminal Justice System in the way it was designed: to hold people accountable for what they do, instead of what they put into their bodies. Along those lines, it makes as much sense to me to put that gifted actor Robert Downey, Jr. in jail for his cocaine addiction, and he certainly seems to have one, as it would to have put Betty Ford in jail for her alcohol addiction. It is the same thing; it is a medical problem. But if Robert Downey, Jr., Betty Ford or you or I drive a motor vehicle while under the influence of any of these mind-altering drugs, that will still be an offense. Why is that? Because now those people would by their actions be putting the safety of other people at risk. When we finally are able to make that distinction in our approach, we will begin to make real progress in this area.


So what action should we take now? The first thing to do is for our President to appoint a blue ribbon commission to investigate the possibility of change – as publicly as possible. Then in my view the first substantive action we should take is to treat marijuana like alcohol. What would happen if we were to do that? Three things, and all of them positive. First, we taxpayers in California would literally save about a billion dollars every year that we now spend in a futile effort to eradicate marijuana, and to prosecute and incarcerate non-violent marijuana users. Secondly, we could tax the stuff, and raise about one and a half billion dollars every year for the state coffers. So those two things alone would change the budget deficit in California by about 2 ½ billion dollars every year. And that is money that we should use for drug education and drug treatment, which will result in decreased problem usage of all drugs. Or we could use the money to help finance health care for the uninsured people in our state and country. But the third thing would be more important than the first two combined, because this we would be making marijuana less available for our children than it is today, as we have already discussed. So what is not to like?  


Eighteenth-century English jurist William Blackstone said that “The law is the embodiment of the moral sentiment of the people,” and I certainly agree with him. But just because we change our approach to this serious problem does not at all mean we condone drug abuse, and our children will understand that concept. There are better ways of accomplishing our goals of reducing drug abuse and all of the crime, misery and corruption that accompany it. In fact, we will discuss some of the programs that are actually working in other countries around the world in this column next week. So stay tuned.


In the meantime, let us take off our muzzles, and give ourselves permission to discuss the subject of drug policy openly, fully and honestly. We have nowhere to go but forward!  


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.