The angry debate about the proper role of the criminal law in drug control does not organize conveniently around the traditional left-versus-right divisions of political geography in the United States. For a generation now, a civil war of ideas has been waged within the American right between libertarian opponents of state drug control and more traditional law and order conservatives. At the zenith of the American drug war around 1990, prominent conservative and libertarian intellectuals provided leadership for extreme state controls (William Bennett, the first drug tsar) and radical deregulation (Milton Friedman). One of the major amusements that liberal criminologists had when visiting drug conferences at the Hoover Institute back then was to witness the passionate division between distinguished law and order resident fellows like Ed Meese and the libertarian Professor Friedman on the ends and means of the American Drug War. Hoover didn’t have to order out for lively differences of opinion on drugs, then or probably now.
What brings to mind the clash between libertarian and authoritarian attitudes toward drug control is the peculiar mix of approaches one finds in the second edition of James P. Gray’s Why Our Drug Laws Have Failed and What We Can Do About It, a revised version of a book first published in 2001. This attack on the methods and assumptions of the criminal law’s war on drugs is not itself a novel critique of the criminal law nor is there much that is brand new in the mix of policy alternatives Judge Gray discusses and endorses. But the author’s background and the spectacularly eclectic approach that Judge Gray takes to alternative reforms suggests that the dangers of legalist drug wars are now visible to segments of the authoritarian right that were traditionally well outside the usual libertarian choir. And if that is true, it is potentially important to the 21st century politics of drug policy
Judge Gray’s second edition is divided into two almost equal parts. A first section (Parts I and II) argues the costs of the drug war to drug users, families, communities and government. One addition in this second edition is an extensive discussion of the violence and corruption that have plagued Mexico in recent years. Gray’s 150 page indictment of criminal prohibition does not generate any new headings but it is well written, heartfelt and up-to-date. Judge Gray’s sources are almost always newspapers rather than research documents or official statistics, but my reading encountered no whopping errors of fact. Of course, the drug war critique is on its weakest factual ground when arguing that our current massive criminal sanctions have little effect on the incidence and prevalence of drug use in the United States. The first law of demand is in better health in our cities than in this book
The second half of the volume is a survey of alternative future drug policies. After a brief attack on further emphasis on criminal sanctions, the book surveys drug education approaches, a wide variety of drug treatment approaches ranging from coercive drug court programs to heroin maintenance and then to decriminalization (which Gray calls “deprofitization of drugs”), and part two has nice things to say about every major non-imprisonment sanction strategy. Sure enough, in a 12-page final chapter, Judge Gray endorses 29 separate policy changes that range from education to needle exchange to drug treatment on demand to drug courts to decriminalization. While many of Judge Gray’s 29 programs are specific segments of a harm control agenda, a number of the programs he supports are in tension with a decriminalization program and inconsistent with each other. Drug courts rely on the coercive power of the criminal law. Judge Gray asserts that we can use drug courts “for appropriate non-violent but problem drug users who find their way into the criminal justice system” (p. 257) but if this excludes drug possession and sales, the drug court judge will end up lonelier than the Maytag repairman. As a long-time judge, the author spent years imposing drug court style regimes of compulsory rehabilitation on criminal offenders and he believes that drug courts work. He also acknowledges that addicts are hard to get into treatment and to keep in treatment without coercion. And he further alleges that “we know that our criminal justice system can coerce problem [his italics] drug users into meaningful and productive sobriety” (p. 240). Then why not push all the heroin and cocaine addicts we can into drug courts? And won’t the heroin maintenance programs Judge Gray also advocates make it much harder to recruit addicts into abstinence programs? With so many different policy experiments in play at the same time, Judge Gray’s 29-point plan might strike many orthodox libertarians as incoherent and unprincipled
There is another respect in which the approach of James Gray differs importantly from a rigorous libertarian approach. The strongest objection to decriminalization that mainstream policy analysts like the late John Kaplan of Stanford suggest is the sharp expansion of the incidence of cocaine and heroin use once crime tariffs and prices come down. Judge Gray worries about the increase in usage and tries (not very convincingly) to minimize both the extent and the duration of a hard drug boom after decriminalization. But many orthodox libertarians would not regard even substantial expansion of heroin and cocaine consumption as a decisive objection to personal liberty. Judge Gray is less willing to pay that high a price for liberty because of his law-and-order roots
The inconsistencies and deviations from the libertarian party line that one finds in Judge Gray’s book reflect a difference in background and orientation between this author and the traditional pedigree of the anti-drug crusader on the right. If we go back to my Hoover Institution drug conference story earlier in this review, Judge James P. Gray’s social, professional and ideological background prior to 1992 much more resembles the profile of Edmund Meese (a Hoover supporter of the drug war) than the profile of Milton Friedman. Judge Gray is an Orange County Republican with training in law and a career in criminal prosecution prior to becoming a superior court judge. He is a storyteller, a politician, a big fan of quoting other judges. There are few signs of either intellectual pretention or ideological preoccupation in the pages of this book. He presents himself as a pragmatist in ways that Professor Friedman would find offensive: “…there are numbers of distinct and very workable options to the extremes of zero tolerance on the one hand and drug legalization on the other” (p. 9). That is not the party line of Milton and Rose Friedman
But for all Judge Gray’s pragmatism and inconsistency, no reader of this book can doubt the intensity of his hatred of the hard line war on drugs. Rather than a libertarian applying his long-held principles to the drug debate, Judge Gray seems to have been pushed from a classic conservative republicanism into the fringes of libertarian politics by his hostility to the orthodox drug war
If large numbers of traditional conservative Republicans find themselves attracted to this type of criticism, it will alter the shape of the politics of drug control in profound ways. So for all his folksiness and inconsistency, Mr. Gray’s persistent assault on the drug war may signal game-changing shifts in the political support for the war on drugs. He may not be a leading scholar on the topic, but he could be an important leading indicator.
Gray, James P., Why Our Drug Laws Have Failed and What We Can Do About It: A Judicial Indictment of the War on Drugs, 2nd ed. (Philadelphia: Temple University Press, 2012).
Krauss, Melvin and Edward Lazear, eds., Search for Alternatives: Drug Control Policy in the United States (Stanford: Hoover Institution Press, 1991).
 The conference I visited generated the title of essays referenced above, edited by Melvin Krauss and Edward Lazear.