Gray: The typical drug case is a small amount of drugs that is being sold by somebody to support his or her habit. You get into some larger ones. A couple of weeks ago we had a 12-ton shipment of cocaine coming towards San Diego. But mostly it's just the low-level users and the low-level drug sellers. And we fill our prisons with them.
Reason: How do you adjudicate those typically? Does the law force you to adjudicate them in ways you think are counterproductive?
Gray: The answer to the second question is certainly yes. There are documented situations in which very conservative federal judges are literally in tears because they are required by the law to sentence a particular offender to a draconian sentence.
Reason: What's the worst drug case you've had come before you?
Gray: I was on Juvenile Court for Abused and Neglected Children. I can't get these cases out of my mind. It was common that a single mother -- say she has two children -- would hook up with the wrong boyfriend, who would be a drug dealer. One fine day he would tell her, "Look, Maria, I'll pay you $500 to take this package across town to Charlie." She basically knows it has narcotics in it. She gets arrested and gets five years in prison.
What happens to her children? They come into my court as abused and neglected children. There's the mother in a prison jumpsuit and handcuffs and I tell her the truth. "You know, ma'am, you're not going to be a functional part of your children's lives for the next five years." She starts to well up with tears. Then I tell her that unless she's fortunate and has either a close personal friend or family member who is both willing and able to take custody of her children, they are very likely going to be adopted by somebody else by the time she gets out of prison. She dissolves into tears.
Taxpayers can start to dissolve in tears, also. Because for the next year they're going to spend $25,000 of taxpayer money to keep this mother of two in prison. We're going to spend upwards of $5,000 a month to keep each child in a group home until they are finally adopted by somebody else. So that's $60,000 a year per child, plus $25,000 for the mother. We are spending $145,000 of taxpayer money to physically separate a mother from her children. It just doesn't make any sense.
Reason: You write about a drug exception to the Bill of Rights.
Gray: When I graduated from law school in 1971, it was illegal for a police officer, even after arresting you, to search anything that was outside of your grasp. If you can reach over to something, then you could search it. But if a suitcase you were carrying was locked, the police could not go in there unless they got a search warrant first. They couldn't go into the trunk of your car, they couldn't go into the glove compartment, and they couldn't go into the backseat.
That has totally been reversed. The police not only can search you and everything in your car, but they can also search your passengers. They can search your mobile home, which is in effect a home on wheels. They can go through and search everything.
Reason: There's a debate over whether the arrests for drug crimes are casual users for possession or dealers who are charged with possession because it's easier to convict. Have you thought about this?
Gray: Basically, I think that the prosecutors are right. We have people who are so overwhelmed that they have to reduce the sentences by plea-bargaining. However, they are all small pushers. They are all little guys. And a lot of them are selling small amounts of drugs in order to support their habits, because the drugs are so artificially expensive.
Reason: What has been the response of your colleagues to your speaking out on this issue?
Gray: Anyone who talks about it with me in the elevator or in the judges' lunchroom agrees that what we're doing is not working. Publicly, judges are pretty conservative people. A lot of them don't see themselves as social workers. A lot of them are concerned about their effectiveness and getting reelected, so they are just not going to say publicly what they believe privately.
That was really brought home to me when I gave four forums sponsored by the American Bar Association. After doing so, I received a letter from the present chief justice of the Supreme Court of a Southern state. He wrote, "Dear Jim: You're right. The War on Drugs isn't working. You're also right that it's fully appropriate for a sitting judge to discuss it because of what our position is in society. And I see these cases all the time coming across my desk. What we are doing simply isn't working. But I gave up a lucrative law practice for this present job. I love my job and if I were to speak publicly, I would have to spend all my time justifying myself. I just don't think I could do it."
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