Advice from a Commission

The Drug Hang Up, America's Fifty-Year Folly

by Rufus King

Chapter 23

AFTER the White House Conference there was once again a lull. Brown won and Nixon announced his withdrawal from public life, while the Narcotics Bureau under Commissioner Giordano quietly went its own way. Action in Washington centered in the Department of justice, where Attorney General Kennedy was campaigning spectacularly for new legislation aimed at organized crime in areas other than drug peddling-gambling, extortion, bribery, and the usury racket. It was only after muttering criticism of his apparent lack of interest in the drug problem began to be heard on Capitol Hill, with editorial reflections, that in January 1963 President Kennedy by Executive Order appointed a brand-new Advisory Commission on Narcotic and Drug Abuse.

This Commission, it was announced, would assist the President 'in developing a comprehensive program for fighting the drug abuse problem.' The press release made fleeting references to the White House Conference, but the Commission's mandate was to start all over again to review the role of all federal agencies and reexamine all available data. And once more the group was made up mostly of new names and new faces, some of them totally unfamiliar to long-time observers of the American drug scene.

The only member of the the President's Commission who had served on the 1962 Ad Hoc Panel was Dr. Rodger 0. Egeberg, a prominent Los Angeles internist who was generally active in California politics and public affairs and subsequently served President Nixon as an Assistant Secretary of HEW. A retired District of Columbia judge of great eminence was named as chairman, and the other members included a San Francisco businessman, a college president, an ex-FBI agent, the New York City Welfare Commissioner, and one of the country's leading penologists, Austin MacCormick. The roster of consultants to the Commission similarly mixed a few prominent authorities and public officials with a spate of unknowns-and included, naturally, Governor Brown, Attorney General Mosk, and a contingent of twenty-two Californians.

To glance backward for a moment, in 1961 during the first session of the 87th Congress, while pros and cons of the White House Conference were being debated behind the scenes on Pennsylvania Avenue and Governor Brown seemed to be calling the shots with the President, New York's powerful senators, Jacob Javits and Kenneth Keating, had launched a play of their own in Congress (which, incidentally, accounts for Mayor Wagner's sudden appearance in the forefront with Brown). Calling for a new approach to the narcotic-drug problem, they introduced a package of four bills which quickly picked up bipartisan support and put further pressure on the Administration to do something or risk losing the initiative and being upstaged.

One of these Javits-Keating measures called for a large expansion in federal narcotic-hospital facilities, with the latter being made available to the states for treatment of their addicts, provided the states in turn developed adequate follow-up programs for addicts when they returned to their communities after hospitalization. Another established federal civil-commitment procedures by which addicted persons could be turned over to the custody of the Surgeon General for treatment, as an alternative to criminal prosecution in certain offense categories. A third proposed a research program covering the entire drug field, while the fourth remedied the absurd situation in which youthful narcotic offenders had been deprived (by the Boggs and Daniel Acts) of benefits accorded to all other young offenders under the federal Youth Corrections Act.

Early in 1963, when the 88th Congress convened, these measures were reintroduced and their Republican sponsors began attacking the administration in earnest for its inaction and neglect. In March, Senator Javits told the New York Academy of Medicine:

Few social problems in our nation are as grave in their impact on raising the crime rate to dangerous levels as the narcotics and drug addiction problem. Yet, there appears to be almost no prospect of early action on a Federal level to deal adequately with the problem in modem terms. It is time we faced frankly the fact that we are in a state of seemingly endless drift on this issue-characterized by indecision, uncertainty and controversy. It is perhaps a classic example of the governmental technique of inaction by continuous study; new studies and new surveys which are designed to clarify the issue instead add up to new excuses for public officials to avoid making the basic decisions. But the facts are in and the evidence is overwhelming.

I believe the situation calls for a historic decision by the President to set the nation on a new enlightened course to deal with narcotics and drug addiction as an illness rather than a crime. In the current muddle, only the President can make this command decision, and I believe this is the time for him to do it.

The President's response to this and similar attacks (the New York Academy of Medicine, for example, called for an about-face in drug policies) was to release on April Fool's day a hastily drafted Interim Report from his Advisory Commission, which began with a disavowal: "None of the views here expressed are based on special independent factual research in depth by the Commission." Not surprisingly, therefore, Recommendation No. 1 was the design of a "Master Plan of Research":

On many aspects of the problem, we do not have complete or accurate data. The needed research is of many sorts, from laboratory experimentation to community inquiry. In the opinion of this Commission, a master plan is required. It would determine, first, all those needs served by existing projects and, second, those needs for which new projects should be undertaken. A master plan would also facilitate the institution of Means to correlate the findings of the various projects. . . .

The Commission considers this recommendation to be of high priority in any major effort related to drug abuse. Such a master research plan would be a major undertaking, and it should be adequately financed, staffed, and equipped. The task of designing it should be assigned to a Government official or agency at the highest appropriate level.

Also not surprisingly, the Commission said it was convinced that "the greatest possibilities of advance" lay not in legislative enactments but in administrative action-calling on the Attorney General to launch, with an assist from the Secretary of the Treasury, a "massive attack" upon the wholesale illicit traffic in drugs by the creation of a special unit of investigators and lawyers to coordinate prosecutions against the skillful, ruthless, and well-financed overlords of organized crime who were profiting hugely from smuggling and trafficking. (Soon this idea spawned more bird-calls: "strike forces" and "task forces" began proliferating all over the war-on-crime battlefield.)

Another recommendation was for educational efforts-by Health, Education, and Welfare rather than Treasury-to counteract misinformation about drug abuse, and this one deserves mention for the least-in-most-words award:

A program for the preparation and widespread distribution of accurate information is one of the essentials to material progress towards solution of the problem. This program should cover all appropriate fields, including the general public, educational, legal and medical professions, and the social welfare agencies. It should include material suitable for publication in various professional journals (legal, medical, pharmaceutical, sociological, law enforcement, religious), material designed for popular appeal (full-length books, magazine articles, scripts and films for broadcasting), and material suitable for use at various educational levels.

The Interim Report had something about everything: a readjustment of statutory penalties to soften a few of the mandatory minimums, expanded training facilities for narcotic enforcement officers, a joint U.S.-Mexico Commission on Drugs (the perennial pet project of Texans and Californians), and more Treasury agents operating abroad to control the illicit international traffic nearer its sources.

In a further slap at the Javits-Keating proposals, the Commission stretched the implications of the 1956 Kentucky "blue grass' case-and a very long stretch it was-into a question about the constitutionality of all civil-commitment procedures: the Commission said it was going to ask the Attorney General to give a ruling on constitutionality before it would take any position on the value of civil-commitment measures. To the suggestion that drug problems might have been slighted by the incumbent administration, the Commission responded stoutly:

It seems to the Commission that the actions of the President in convening the first White House Conference on Narcotic and Drug Abuse, in personally addressing the Conference, and in establishing this Commission amply demonstrate his view that this problem is important and his desire that all Federal agencies involved act accordingly.

But among all this nonsense (the Commission even took a swipe at Anslinger's Single Convention, while simultaneously avowing that it had insufficient knowledge to reach any conclusions on the subject), there was one statement of real significance and sinister portent, and that was the proposal, officially promulgated for the first time on behalf of the administration, extended to all other drugs in the "dangerous" category. On this the Interim Report said:The Commission is speaking here not of the narcotics-which are under Federal control-but of those compounds frequently referred to as dangerous drugs. Some familiar examples are the barbiturates, the amphetamines, and the so-called tranquilizers. They are manufactured in the United States in increasing quantities and varieties.

Even so, notes of caution were sounded which, had they been heeded, might have very much changed the developments we shall be recording in a subsequent chapter. For the Commission urged expansion of the regulatory powers of the Food and Drug Administration, rather than turning all power over to a purely enforcement arm like Treasury or justice, and referring to- these "dangerous drugs," it warned specifically:

The Commission is of the view that any scheme of regulation of their manufacture, sale, and distribution should not at this time parallel the scheme of regulation in present Federal narcotics laws, since the more stringent controls of the narcotics laws would seriously hamper the legitimate medical use of these drugs.

Moreover, noting that criminal sanctions would probably be necessary to control illicit manufacture and sale, it gave the further warning: "The Commission is concerned lest criminal penalties also be visited upon those who are primarily the victims of these drugs, those who purchase or possess them for their own use but without a lawful prescription."

The Advisory Commission's Final Report was submitted to President Kennedy on November 1, 1963, a scant three weeks before the tragedy at Dallas. The changes it proposed were altered and aborted under President Johnson, but there is no question that this report was coolly aimed at enlarging the federal prohibition activity, extending the hard-line approach ("war on dope"), and excluding the Treasury Department from the limelight in favor of dramatic new powers to be conferred on the Attorney General.

First, in a quite new proposal (except that it had been made by the Hoover Commission in 1949), the Advisory Commission recommended that all enforcement powers be transferred from Treasury's Narcotics Bureau to the Department of justice. General supervision over combatting the illicit drug traffic was to be transferred to a Special Assistant for Narcotic and Drug Abuse appointed by the President and attached to the White House. Even the function of disseminating educational material about drugs was to be shifted from Treasury to HEW, and the latter department was also to take over all aspects of the control of the legitimate importation and manufacture of drugs, which was to be recast in a regulatory pattern based on the interstate and foreign commerce powers of Congress instead of on the tax power.The Final Report stressed the newly discovered dangers of barbiturates, amphetamines, LSD 25, and even ether and airplane glue, lumping them together with the opiates, cocaine, and marijuana as "psychotoxic (mind poisoning)." Going further than any of the pending congressional proposals, and departing from its own interim findings, the Commission now urged that control over the traffic in all dangerous drugs, including all the new categories, be taken away from the Food and Drug Administration and turned over (with the similar powers to be taken from Treasury) to the Department of justice. A "substantial increase" in the number of enforcement officers assigned to drug investigations-attached to justice and reporting to the Attorney General, of course-was deemed essential, and the report recommended that wiretapping be made liberally available to support federal efforts aimed at international smuggling.

Lip service was paid to the humanitarian notion that drug addicts are afflicted-persons rather than criminals, but the conclusion was nonetheless that drug abusers guilty of offenses against society (including drug and drug-related offenses) should be sternly made to face the consequences of their transgressions like anyone else. The Commission's only real concession was that when drug abusers are penalized they should not be penalized in the spirit of retribution," and ought to be rehabilitated whenever possible.

It was recommended that the federal narcotics hospitals close their doors to all voluntary patients except any that might be needed for research purposes so that their intake would be only by criminal conviction or involuntary civil commitment, and it was urged that the Director of the Bureau of Prisons (again, in the Department of justice) establish a special treatment program for addicts subject to his jurisdiction. A Permanent Citizens' Advisory Committee was suggested, to advise the Administration and to keep the drug problem prominently in the public view.

Finally, it must be acknowledged in fairness that among the Commission's other recommendations were some that appeared reasonable, moderate, and well focused. On mandatory minimums, for example, the report said that the present sentence structure should be amended "to fit the gravity of the particular offense so as to provide a greater incentive for rehabilitation." Regarding the right of physicians to prescribe drugs, the Commission urged a revision in the federal regulations to recognize that this was a matter of medical discretion and that the profession should be called upon to set standards of legitimate medical treatment for itself. But at the same time it shied away, quite inconsistently, from any suggestion that new federal facilities ought to be developed for treating and rehabilitating addicts, even while endorsing civil commitment as an alternate for (and supplement to) criminal prosecution.

If I have conveyed a tiny inference that drug matters were handled in ways that might have been influenced by political considerations when the two brothers who were soon to be so tragically martyred sat together in the Oval Room, I would not feel I had abused the truth. But something else should be stressed again: remember that it was they also, when they could act quietly without regard to political advantage, who used their offices to open the prison gates with pardons and commutations for Gilbert Zaragoza and dozens of hopeless long-termers who otherwise would still be suffering because of the stupidity and savagery of characters we met in earlier episodes in this saga.