Beyond drug law reform: We need a new Wickersham Commission

Change is in the offing for U.S. drug policy. More than a dozen states, including Maryland, have adopted medical marijuana laws. Attorney General Eric Holder, a decisive member of a sometimes indecisive administration, stated that federal laws against marijuana possession would not be enforced against persons immune under such state laws.

Various jurisdictions in California and Colorado have begun to tax “medical marijuana,” which provides an ever-growing exception to prohibitory legislation like that provided for “medicinal alcohol” during Prohibition. Referendum campaigns are under way in California and other states looking toward complete repeal of laws against marijuana possession.

These developments present a different picture from that of five years ago, when the Supreme Court declined to extend its “federalism” cases to impugn the federal law against marijuana possession.

Alcohol prohibition fell victim to its own abuses and to a campaign led by two groups: the former distillers, vintners and brewers and the very rich who hoped that alcohol taxes would replace the husk of the income tax remaining after the Mellon tax cuts. Until recently, a comparable coalition for drug law modification has been lacking.

It has now appeared. The recession has produced growing concern with the effect of over-criminalization on state budgets and the dockets of federal courts; the Rockefeller drug laws are under attack not only by the usual liberal and libertarian suspects but by the Republican governors of Texas and California and even former Attorney General Edwin Meese. There is not merely domestic, but, as with the demise of school segregation, foreign pressure, in the form of the recent Report of the Latin American Commission on Drugs and Democracy. There is also growing realization that testing and treatment programs have done more than the criminal law to contain drug abuse in the military and work force, and the AIDS crisis has given an urgent public health dimension to once-controversial “harm reduction” programs like needle exchange and methadone maintenance of heroin addicts.

Although Mr. Holder’s pebble may help to provoke an avalanche of change, little thoughtful consideration has been given to channeling changes that are clearly in the offing. Nonenforcement or repeal of laws against drug possession does not by itself produce legal sources of supply or defund the underworld; nor does it foster alternative social controls in the form of education, mandatory testing or treatment.

Some states in their medical marijuana laws have sought to do this by authorizing individual cultivation of limited numbers of plants, a source clearly preferable to reliance on the drug cartels but one that raises problems of its own respecting quality control and amenability to taxation. The seriously addictive drugs, or some of them, require more controlled approaches than marijuana (although with respect to all drugs, a system of regulation that enlists rather than repudiates the laws of economics would be welcome).

If change is not to instigate another series of culture wars, some detached analysis and discussion is in order. The disintegration of national Prohibition led President Herbert Hoover to create the Wickersham Commission in 1931. While that commission produced inconclusive recommendations, its factual reports and the statements of its individual members had enduring influence.

The report exposed the inadequacies of the probation and parole systems, the corruption of the enforcement agencies, bad criminal statistics and abuses of the “third degree” in questioning of suspects, setting in motion enduring reforms. It carried with it a sense of urgency, most eloquently expressed in the separate statement of Frank Loesch of the Chicago Crime Commission: “If not soon crushed these criminal organizations may become as they are now seeking to become super-governments and so beyond the reach of the ordinary processes of the law,” a statement resonating in Mexico, Colombia, and some of our large cities, not excluding Baltimore.

The Roosevelt administration wisely adopted the policy urged by New Orleans lawyer Monte Lemann: “If an experiment with government control [of legalized distribution] is to be undertaken, it appears to me better that it should be undertaken by the individual states,” a recommendation echoed in a 1994 report on drug law reform issued by the Association of the Bar of the City of New York, and one strikingly successful in the context of alcohol. Local public opinion was heeded, and a patchwork of state monopolies, licensing laws, price controls, local prohibition ordinances, and punishments of drunk driving and other abuses ended gangsterism and continues to give general if not complete satisfaction, while removing a once-volatile question from national politics.

Is President Barack Obama less a progressive than President Hoover? Does he fear what a commission including persons like Mr. Meese, Governors Rick Perry of Texas and Arnold Schwarzenegger of California, New York Mayor Michael Bloomberg, and a host of public health experts and police chiefs might recommend?

George Liebmann, a Baltimore lawyer, is the volunteer executive director of the Calvert Institute for Policy Research and the author of “The Common Law Tradition: A Collective Portrait of Five Legal Scholars.” His e-mail is


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