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A New Czar Means Same Old Folly in the Drug War : Enforcement: The naming of Florida’s Martinez signals business as usual when we need a fresh look, independent appraisal and re-evaluation.

<i> Gerald F. Uelmen is dean of the Santa Clara University School of Law. This was adapted from remarks to the Fourth National Conference of the Drug Policy Foundation in Washington</i>

The appointment of Florida Gov. Bob Martinez as the new federal drug czar will be greeted with glee by the “drug-abuse industrial complex.”

It means that the government will continue to pour more than $8 billion a year into hardware and personnel for law enforcement. It means that corporations like Hoffman-La Roche and Syntex will bank $500 million a year for testing urine samples. It means our justice system will demand even more judges, prosecutors and public defenders, while we continue to build jail cells with money that should be going to build classrooms. It means that scientific breakthroughs in our understanding of the phenomenon of addiction will continue to be ignored.

In “The March of Folly,” historian Barbara Tuchman defined “folly” as a perverse persistence in a policy that is demonstrably unworkable or counterproductive. “If the mind is open enough to perceive that a given policy is harming rather than serving self-interest, and self-confident enough to acknowledge it, and wise enough to reverse it, that is a summit in the art of government,” she said.

Annointing as drug czar a governor who packed his state’s prisons to nearly twice their capacity with addicts demonstrates how far we are from that summit.

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At times like these, it’s useful to turn to our past, to the days when government occasionally engaged in rational analysis of policy alternatives. Perhaps President Bush can learn something from examples of statesmanship offered by Herbert Hoover and Richard Nixon.

When Hoover became President in 1929, one of his first acts was to appoint a commission of independent-minded and learned professionals to study the laws enforcing Prohibition. The panel included three federal judges, two former Cabinet officers and Dean Roscoe Pound of Harvard Law School.

Their report, issued 18 months later, was not unanimous. The issues they addressed were deeply dividing the nation, and that division was accurately reflected in their report. What they delivered, however, was an objective assessment of the costs and the benefits of enforcement of Prohibition laws, which laid the groundwork for a well-informed national debate.

The commissioners called for a change in the laws and offered an ingenious plan to create a national public corporation to control the manufacture and distribution of alcoholic beverages.

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Although some of its best suggestions were ignored, the 1931 report by the Wickersham Commission stands as a classic example of the contribution a national study can make to a dialogue about public policy. It is worth noting that those who have recently suggested that the basic premises of our drug laws be re-examined include federal judges, former Cabinet officers and law school deans.

Forty years after the Wickersham study, the nation faced yet another crisis as marijuana became the drug of choice for a new generation. In enacting the Comprehensive Drug Abuse Prevention and Control Act of 1970, Congress called for a thorough study of drug abuse, starting with marijuana. The National Commission on Marijuana and Drug Abuse included two senators, two congressmen and nine presidential appointees. Nixon’s impressive group included four physicians, two lawyers and the commission chair, former Pennsylvania Gov. Raymond Shafer.

In March, 1972, the panel issued its first report, based on a study of everything known about marijuana up to that time. The report recommended that personal private use of marijuana be decriminalized. The commission followed up a year later with an even more comprehensive report, which sought to put the problem of drug abuse in perspective. Decrying the growth of a “drug-abuse industrial complex” with a tendency to simply perpetuate itself, the commission emphasized the need to test the assumptions of current policy.

In its final recommendation, the Shafer Commission proposed that a successor panel be appointed four years later to evaluate progress and reexamine the basic issues. They stressed the need for independence from other governmental policy-making bodies. That recommendation was never carried out.

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Those who direct today’s war on drugs apparently never read the Shafer reports. The recommendations that politicians deescalate their rhetoric and promote more treatment programs were ignored. Incredibly, after 17 years, the reports have never been cited or referred to in any opinions by the U.S. Supreme Court.

It may seem ironic to urge the examples of Hoover and Nixon as models for 1990. In other respects, their presidencies reflected the same woodenheadedness that inevitably characterizes the march of governmental folly. But the reports of the commissions they appointed stand as monuments of rational thought in our desert of failure, where we regularly repeat the same mistakes over and over.

In the years since the Shafer Commission issued its final report, we have experienced a virtual explosion of knowledge about drug abuse and addiction. Advances in the study of brain chemistry have unlocked secrets that could only be guessed at in 1973. These new discoveries challenge many of the fundamental assumptions underlying our drug laws. It’s time for a fresh look, an independent appraisal and a comprehensive reevaluation of national drug policy. Instead, the appointment of Martinez means business as usual. His idea of leadership was to be the first government official in Florida to pee in a bottle. The march of folly rolls on.


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