The problem with Drug Tsars

I met the US Drug Tsar Gil Kerlikowske recently. It was at a reception at the US Ambassador's residence in Vienna during the UN Commission on Narcotic Drugs. This is an annual event, and a welcome opportunity for the NGOs attending the CND in an official capacity (Transform has ECOSOC special consultative status) to meet various US figures and ONDCP staff.

I asked how the potential tensions between state, federal and international law might play out if one of the US State ballot initiatives to legalise and regulate cannabis/marijuana was passed by voters. Kerlikowske's answer was to list a number of arguments against legalisation - all familiar to those who followed the debate around Prop 19 in California last year.

 

The Drugs Tsar, Gil Kerlikowske at the US Amassador's reception in Vienna, 

with Anita Krug and Aram Barra from YouthRise/Espolea*

I responded by saying that I understood the arguments for and against, but was specifically interested in what would happen in terms of the conflicts between state, federal and international law, given the the likelyhood that one of the various proposed state ballot initiatives would pass in 2012 (the California initiative is set to rerun, as well as initiatives in Colorado, and other states). This time Kerlikowske pointed out that 56% of voters in California had been sufficiently concerned about Marijuana abuse and drug driving to oppose the 2011 prop 19 initiative.

So I essentially repeated the question; quite aside from the debate and public opinion, what is the Federal response or sequence of events, should such an intiative actually succeed? - noting that this was a reasonable question given how close the Californian vote had been and the likelyhood, probable certainty that one of the other initiatives would succeed in the near future. This time Kerlikowske responded that he didn't 'deal in hypotheticals'  - a response familiar to Prop 19 debate watchers.

So, pointing out that those in policy making naturally had to deal with hypotheticals as a matter of routine, I asked a slightly rephrasesd question; had the ONDCP done any scenario planning to explore this particular hypothetical, given its likely imminent move to non-hypothetical status. Kerlikowske replied that he 'couldn't comment'.

This was one of those unenlightening conversations that NGOs have with politically appointed civil servants on an almost daily basis - so largely unexpected. But a curious fact about the ONDCP director's role, that puts these sorts of conversations into some perspective, is that his position on legalisation is specifically mandated:

According to Title VII Office of National Drug Control Policy Reauthorization Act of 1998: H11225:

Responsibilities. –The Director– [...]
(12) shall ensure that no Federal funds appropriated to the Office of National Drug Control Policy shall be expended for any study or contract relating to the legalization (for a medical use or any other use) of a substance listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812) and take such actions as necessary to oppose any attempt to legalize the use of a substance (in any form) that–

1. is listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812); and
2. has not been approved for use for medical purposes by the Food and Drug Administration;

Whatever Kerlikowske's views, and whatever evidence he is presented with (as he is not allowed to let the ONDCP gather any) he is duty bound to proffer a blanket opposition to any form of move to legally regulated markets, for any reason.  There is something fundamentally obnoxious and anti-science about this wording, contained as it is in an Act of Congress, especially given the fact that Kerlikowske's statements on legalisation are often superficially factual (as indeed is the risible DEA guide  'Speaking Out Against Legalisation'). How balanced can we expect this analysis to be if all research on non-drug war options is forbidden and all comments subject to Congressional diktat? 

More concerning were recent comments from Kerlikowske in an interview with Foriegn Policy in which legalisation cropped up again;

Foriegn Policy: You've made your views on legalization very clear in the past. How do you respond to the growing number of former Latin American leaders -- former Mexican President Vicente Fox, most recently -- who have come out in favor of legalization or at least a radical overhaul of the current policy?

Gil Kerlikowske: Isn't if funny how people who no longer have responsibility for anyone's safety or security suddenly see the light? I think it's not a lot different from what we've heard in recent years in the United States, which is: We've had a war on drugs for 40 years and we don't see success. If we have a kid in high school, they can still get drugs or there's drugs on the street corner. So legalization must be an answer.

What we in government fail to do is to show that there really are quite successful, cost-effective programs we can use, so we don't have to go from the "war on drugs has failed" to "let's legalize."

By the way, I've never seen any of the legalization arguments that say, here's how it will work and here's how we'll regulate it. Heaven knows, we're not very successful with alcohol. We don't collect much in tax money to cover the costs. We certainly can't keep it out of the hands of teenagers or people who get behind the wheel. Why in heavens name do we think that if we legalize marijuana, we'd have a system where we could collect enough tax revenue to cover the increased health-care costs? I haven't seen that grand plan.

The first comment from Kerlikowske here is, I would suggest, an entirely misplaced and innappropriate ad hominem aimed at Fox and other former public servants who differ with Kerlikowske's (legally imposed) prohibitionist perspective. More importantly, from Transform's perspective, is the comment about never having seen 'any of the legalization arguments that say, here's how it will work and here's how we'll regulate it.'  As Transform's widely distributed and cited 2009 publication 'After the War on Drugs; Blueprint for Regulation'  addresses precisely this question in some detail (50,000 words, 215 pages), I found this statement a little surprising.

What's more Transform's efforts on this front have been built on previous work including ‘A Public Health Approach to Drug Control’ (2005) by the British Colombia Health Officers Council, and Effective Drug Control: Toward A New Legal Framework' (2005) by the King County Bar Association. The latter is based in Seattle, and produced the document whilst Kerlikowske was Seattle police chief. 

We have sent Kerlikowske a letter drawing attention to this work, and a copy of Blueprint, which he is presumably allowed to read - even if he must do so in his own time and never mention it in public.  

*photo: Steve Rolles