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?