A Call for Retreat in Drug War

SANTA ANA —  This seems an unlikely place to find judges calling for decriminalization of street drugs. Orange County is the fabled cradle of California conservatism, where suburbanites come together in fear of God, Democrats and anything that smells of Los Angeles. Or so goes the stereotype.

Nonetheless, two Superior Court judges and one federal magistrate--all middle-aged, white and self-described conservatives; all scornful of anyone who would take drugs--have stirred things up here in law-and-order land by going public with a hard truth:

The so-called “War on Drugs” is a loser. Billions of taxpayer dollars have been invested in the campaign, and yet for all the captured contraband, for all the arrests of traffickers, for all the heroism of cops and promises of politicians, drugs appear more readily available than ever. Streets teem with drug-related crime and courts are clogged with drug-related cases. Here in California, to keep pace with drug-related convictions our broke state government must spend money on prisons that otherwise would go to schools.

“I don’t see how we possibly, by any objective standard, can say we are winning this . . . ‘war,’ ” said Superior Court Judge James L. Smith, who this month became the third judge here to advocate decriminalization. “If we are not winning, we are losing. And if we are losing, we should try another approach.”

The Orange County Three--Smith, Superior Court Judge James P. Gray and U.S. Magistrate Ronald L. Rose--all have grown frustrated watching the criminal justice system choke on narcotics cases. They believe that an economic rather than paramilitary strategy holds the best promise of shutting down the drug business. Right now, they say, financial incentives simply are too strong.

“For every mule or mid-level dealer we take out,” Rose wrote last spring in a magazine for lawyers, “there are 50 more waiting to take their place. There is just so much money to be made that the slim chance of being caught is always worth the risk.”

Particulars of their proposals vary. Essentially, the judges either would give away street drugs or sell them at low prices to any adult who wants them. The drugs would be available at regulated outlets, and unauthorized attempts to sell them to others, especially minors, would be punished. Laws such as driving under the influence still would apply.

This approach, they believe, eventually would deprive drug dealers of their market and drive them out of business. Drug wars would cease and addicts no longer would have to steal to support habits. Money that otherwise would be spent policing narcotics instead would be put toward anti-drug education and treatment.

These ideas are not new. A few politicians, public policy experts and other judges already have called for decriminalization, and so have publications as varied as the London Economist and Rolling Stone magazine. What is most striking about this movement among Orange County judges is less what they say, and more where they say it.

It must have taken no small measure of courage for Gray, the first of the trio to go public, to stand outside the courthouse here last April and announce to a startled press corps that he supported decriminalization of drugs. He knew his announcement would have impact.

“I’m not Timothy Leary,” he said. “By virtue of the fact I was a conservative Orange County judge--appointed by a conservative governor, in a conservative county--I would be able to get people to focus on this issue where other people have failed.”

Focus they have. Though overshadowed in L.A. by the riots, the drug judges have been a hot topic here all spring and summer. They have been attacked by cops and drug treatment advocates--people in the business of conducting the war the old way--and applauded, quietly, by more than a few of their colleagues. In a survey of Orange County-based judges by the Register newspaper, 40% of the respondents supported decriminalization.

This is only the beginning of what should be a long debate. Myself, I wonder if the decriminalization advocates are in danger of repeating a mistake evident in the narc team approach--not knowing the enemy. The enemy is cocaine, and it has the power to take good people down, no matter who supplies it. How many politicians would be courageous enough to support a public program guaranteed to make addicts of some citizens?

Still, drug war casualties mount daily as it is, and many victims are innocents. And there is no light at the tunnel’s end. Something different is demanded. If that’s clear to the good, law-and-order folks of Orange County, it ought to be clear to everyone else.