The History of the Non-Medical Use of Drugs in the United States
by Charles Whitebread, Professor of Law, USC Law School
A Speech to the California Judges Association 1995 annual conference
Links to Related Documents
This speech is derived from The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition by Professor Richard J. Bonnie & Professor Charles H. Whitebread, II
In this speech, Professor Whitebread refers to the following documents:
The Hearings of the Marihuana Tax Act and related documents.
Marihuana, A Signal of Misunderstanding, by the National Commission on Marijuana and Drug Abuse.
This session is going to be about the history of the non-medical use of drugs. Let me say that, because this is going to be a story, that I think it will interest you quite a bit. The topic is the history of the non-medical use of drugs and I think you ought to know what my credentials are for talking about this topic. As you may know, before I taught at the University of Southern California, I taught at the University of Virginia for fifteen years, from 1968 to 1981. In that time period, the very first major piece that I wrote was a piece entitled, "The Forbidden Fruit and the Tree of Knowledge - The Legal History of Marijuana in the United States". I wrote it with Professor Richard Bonnie, still of the faculty of the University of Virginia. It was published in the Virginia Law Review in October of 1970 and I must say that our piece was the Virginia Law Review in October of 1970. The piece was 450 pages long. It got a ton of national attention because no one had ever done the legal history of marijuana before. As a result of that, Professor Bonnie was named the Deputy Director of the National Commission on Marijuana and Drug Abuse and I was a consultant to that commission.
As a result of Richard's two year executive directorship of the National Commission in 1971 and 1972 he and I were given access to both the open and the closed files of what was then called the Bureau of Narcotics and Dangerous Drugs, what had historically been called the Federal Bureau of Narcotics and what today is called the Drug Enforcement Agency. Based upon our access to those files, both open and closed, we wrote a book called "The Marijuana Conviction- The Legal History of Drugs in the United States" and that book went through six printings at the University of Virginia press before being sold out primarily in sales to my friends at the FBI over the years. It is based upon that work that I bring you this story.
The Pure Food and Drug Act
The single law which has done the most in this country to reduce the level of drug addiction is none of the criminal laws we have ever passed. The single law that reduced drug addiction the most was the 1906 Pure Food and Drug Act.
The Pure Food and Drug Act of 1906 did three things:
1). It created the Food and Drug Administration in Washington that must approve all foods and drugs meant for human consumption. The very first impact of that was that the patent medicines were not approved for human consumption once they were tested.
2) The Pure Food and Drug Act said that certain drugs could only be sold on prescription.
3) The Pure Food and Drug Act, (and you know, this is still true today, go look in your medicine chest) requires that any drug that can be potentially habit-forming say so on it's label. "Warning -- May be habit forming."
The labeling requirements, the prescription requirements, and the refusal to approve the patent medicines basically put the patent medicine business out of business and reduced that dramatic source of accidental addiction. The Pure Food and Drug Act of 1906, not a criminal law, did more to reduce the level of addiction than any other single statute we have passed in all of the times from then to now.
The Harrison Act
The very first criminal law at the Federal level in this country to criminalize the non-medical use of drugs came in 1914. It was called the Harrison Act and there are only three things about the Harrison Act that we need to focus on today.
Number one is the date. Did you hear the date, 1914? Some of you may have come this morning thinking that we have used the criminal law to deal with the non-medical use of drugs since the beginning of the Republic or something. That is not true. The entire experiment of using the criminal sanction to deal with the non-medical use of drugs really began in this country in 1914 with the Harrison Act.
The second interesting thing about the Harrison Act was the drugs to which it applied, because it applied to almost none of the drugs we would be concerned about today. The Harrison Act applied to opium, morphine and its various derivatives, and the derivatives of the coca leaf like cocaine. No mention anywhere there of amphetamines, barbiturates, marijuana, hashish, hallucinogenic drugs of any kind. The Harrison Act applied only to opium, morphine and its various derivatives and derivatives of the coca leaf like cocaine.
The third and most interesting thing for you all as judges about the Harrison Act was its structure, because the structure of this law was very peculiar and became the model for every single piece of Federal legislation from 1914 right straight through 1969. And what was that model?
It was called the Harrison Tax Act. You know, the drafters of the Harrison Act said very clearly on the floor of Congress what it was they wanted to achieve. They had two goals. They wanted to regulate the medical use of these drugs and they wanted to criminalize the non-medical use of these drugs. They had one problem. Look at the date -- 1914. 1914 was probably the high water mark of the constitutional doctrine we today call "states' rights" and, therefore, it was widely thought Congress did not have the power, number one, to regulate a particular profession, and number two, that Congress did not have the power to pass what was, and is still known, as a general criminal law. That's why there were so few Federal Crimes until very recently.
In the face of possible Constitutional opposition to what they wanted to do, the people in Congress who supported the Harrison Act came up with a novel idea. That is, they would masquerade this whole thing as though it were a tax. To show you how it worked, can I use some hypothetical figures to show you how this alleged tax worked?
There were two taxes. The first (and again, these figures aren't accurate but they will do to show the idea) tax was paid by doctors. It was a dollar a year and the doctors, in exchange for paying that one dollar tax, got a stamp from the Government that allowed them to prescribe these drugs for their patients so long as they followed the regulations in the statute. Do you see that by the payment of that one dollar tax, we have the doctors regulated? The doctors have to follow the regulations in the statute.
And there was a second tax. (and again, these are hypothetical figures but they will show you how it worked.) was a tax of a thousand dollars of every single non-medical exchange of every one of these drugs. Well, since nobody was going to pay a thousand dollars in tax to exchange something which, in 1914, even in large quantities was worth about five dollars, the second tax wasn't a tax either, it was a criminal prohibition. Now just to be sure you guys understand this, and I am sure you do, but just to make sure, let's say that in 1915 somebody was found, let's say, in possession of an ounce of cocaine out here on the street. What would be the Federal crime? Not possession of cocaine, or possession of a controlled substance. What was the crime? Tax evasion.
And do you see what a wicked web that is going to be? As a quick preview, where then are we going to put the law enforcement arm for the criminalization of drugs for over forty years -- in what department? The Treasury Department. Why, we are just out there collecting taxes and I will show you how that works in a minute.
If you understand that taxing scheme then you understand why the national marijuana prohibition of 1937 was called the Marihuana Tax Act.
The Early State Marijuana Laws
But before we get to that next big piece of Federal legislation, the marihuana prohibition of 1937, I would like to take a little detour, if I may, into an analysis of the early state marijuana laws passed in this country from 1915 to 1937.
Let me pause to tell you this. When Professor Bonnie and I set out to try to track the legal history of marijuana in this country, we were shocked that nobody had ever done that work before. And, secondly, the few people who had even conjectured about it went back to the 1937 Federal Act and said "Well, there's the beginning of it." No. If you go back to 1937, that fails to take account of the fact that, in the period from 1915 to 1937, some 27 states passed criminal laws against the use of marijuana. What Professor Bonnie and I did was, unique to our work, to go back to the legislative records in those states and back to the newspapers in the state capitols at the time these laws were passed to try to find out what motivated these 27 states to enact criminal laws against the use of marijuana. What we found was that the 27 states divided into three groups by explanation.
The first group of states to have marijuana laws in that part of the century were Rocky Mountain and southwestern states. By that, I mean Texas, New Mexico, Colorado, Montana. You didn't have to go anywhere but to the legislative records to find out what had motivated those marijuana laws. The only thing you need to know to understand the early marijuana laws in the southwest and Rocky Mountain areas of this country is to know, that in the period just after 1914, into all of those areas was a substantial migration of Mexicans. They had come across the border in search of better economic conditions, they worked heavily as rural laborers, beet field workers, cotton pickers, things of that sort. And with them, they had brought marijuana.
Basically, none of the white people in these states knew anything about marijuana, and I make a distinction between white people and Mexicans to reflect a distinction that any legislator in one of these states at the time would have made. And all you had to do to find out what motivated the marijuana laws in the Rocky mountain and southwestern states was to go to the legislative records themselves. Probably the best single statement was the statement of a proponent of Texas first marijuana law. He said on the floor of the Texas Senate, and I quote, "All Mexicans are crazy, and this stuff (referring to marijuana) is what makes them crazy." Or, as the proponent of Montana's first marijuana law said, (and imagine this on the floor of the state legislature) and I quote, "Give one of these Mexican beet field workers a couple of puffs on a marijuana cigarette and he thinks he is in the bullring at Barcelona."
Well, there it was, you didn't have to look another foot as you went from state to state right on the floor of the state legislature. And so what was the genesis for the early state marijuana laws in the Rocky Mountain and southwestern areas of this country? It wasn't hostility to the drug, it was hostility to the newly arrived Mexican community that used it.
A second group of states that had criminal laws against the use of marijuana were in the Northeast, Connecticut, Rhode Island, New York -- had one and then repealed it and then had one again -- New Jersey. Well, clearly no hypothesis about Mexican immigration will explain the genesis of those laws because, as you know, the Northeast has never had, still doesn't really, any substantial Mexican-American population. So we had to dig a little deeper to find the genesis of those laws. We had to go not only to the legislative records but to the newspapers in the state capitols at the time these laws were passed and what we found, in the early marijuana laws in the Northeast, we labeled the "fear of substitution." If I may, let me paraphrase an editorial from the New York Times in 1919 so we will get exactly the flavor of this fear of substitution.
The New York Times in an editorial in 1919 said, "No one here in New York uses this drug marijuana. We have only just heard about it from down in the Southwest," and here comes the substitution. "But," said the New York Times, "we had better prohibit its use before it gets here. Otherwise" -- here's the substitution concept -- "all the heroin and hard narcotics addicts cut off from their drug by the Harrison Act and all the alcohol drinkers cut off from their drug by 1919 alcohol Prohibition will substitute this new and unknown drug marijuana for the drugs they used to use."
Well, from state to state, on the theory that this newly encountered drug marijuana would be substituted by the hard narcotics addicts or by the alcohol drinkers for their previous drug that had been prohibited, state to state this fear of substitution carried, and that accounted for 26 of the 27 states -- that is, either the anti-Mexican sentiment in the Southwest and Rocky Mountain areas or fear of substitution in the Northeast. That accounted for 26 of the 27 states, and there was only one state left over. It was the most important state for us because it was the first state ever to enact a criminal law against the use of marijuana and it was the state of Utah.
Now, if you have been hearing this story and you have been playing along with me, you think "Oh, wait a minute, Whitebread, Utah fits exactly with Colorado, Montana, -- it must have been the Mexicans."
Well, that's what I thought at first. But we went and did a careful study of the actual immigration pattern and found, to our surprise, that Utah didn't have then, and doesn't have now, a really substantial Mexican-American population. So it had to be something else.
Come on folks, if it had to be something else, what do you think it might have been? Are you thinking what I was thinking -- that it must have had something to do with the single thing which makes Utah unique in American history -- its association with the Mormon church.
With help from some people in Salt Lake City, associated with the Mormon Church and the Mormon National Tabernacle in Washington -- with their help and a lot of work we found out what the genesis was of the first marihuana law in this country. Yes, it was directly connected to the history of Utah and Mormonism and it went like this.
I think that a lot of you know that, in its earliest days, the Mormon church permitted its male members to have more than one wife -- polygamy. Do you all know that in 1876, in a case called Reynolds against the United States, the United States Supreme Court said that Mormons were free to believe what they wanted, but they were not free to practice polygamy in this country. Well, who do you think enforced that ruling of the Supreme Court in 1876? At the end of the line, who enforces all rulings of the Supreme Court? Answer: the state and local police. And who were they in Utah then? All Mormons, and so nothing happened for many years. Those who wanted to live polygamously continued to do so.
In 1910, the Mormon Church in synod in Salt Lake City decreed polygamy to be a religious mistake and it was banned as a matter of the Mormon religion. Once that happened, there was a crackdown on people who wanted to live in what they called "the traditional way". So, just after 1910, a fairly large number of Mormons left the state of Utah, and indeed left the United States altogether and moved into northwest Mexico. They wrote a lot about what they wanted to accomplish in Mexico. They wanted to set up communities where they were basically going to convert the Indians, the Mexicans, and what they referred to as "the heathen" in the neighborhood to Mormonism.
By 1914, they had had very little luck with the heathen, but our research shows now beyond question that the heathen had a little luck with them. What happened apparently -- now some of you who may be members of the church, you know that there are still substantial Mormon communities in northwest Mexico -- was that, by and large most of the Mormons were not happy there, the religion had not done well there, they didn't feel comfortable there, they wanted to go back to Utah where there friends were and after 1914 did.
And with them, the Indians had given them marijuana. Now once you get somebody back in Utah with the marijuana it all becomes very easy, doesn't it? You know that the Mormon Church has always been opposed to the use of euphoriants of any kind. So, somebody saw them with the marijuana, and in August of 1915 the Church, meeting again in synod in Salt Lake City decreed the use of marijuana contrary to the Mormon religion and then -- and this is how things were in Utah in those days -- in October of 1915, the state legislature met and enacted every religious prohibition as a criminal law and we had the first criminal law in this country's history against the use of marijuana.
That digression into the early state marijuana laws aside, we will now get back on the Federal track, the year is 1937 and we get the national marijuana prohibition -- the Marihuana Tax Act
The Marihuana Tax Act of 1937
Now, first again, does everybody see the date, 1937? You may have thought that we have had a national marijuana prohibition for a very long time. Frankly, we haven't.
The marijuana prohibition is part and parcel of that era which is now being rejected rather generally -- the New Deal era in Washington in the late 30s.
Number two, you know, don't you, that whenever Congress is going to pass a law, they hold hearings. And you have seen these hearings. The hearings can be extremely voluminous, they go on and on, they have days and days of hearings. Well, may I say, that the hearings on the national marijuana prohibition were very brief indeed. The hearings on the national marijuana prohibition lasted one hour, on each of two mornings and since the hearings were so brief I can tell you almost exactly what was said to support the national marijuana prohibition.
Now, in doing this one at the FBI Academy, I didn't tell them this story, but I am going to tell you this story. You want to know how brief the hearings were on the national marijuana prohibition?
When we asked at the Library of Congress for a copy of the hearings, to the shock of the Library of Congress, none could be found. We went "What?" It took them four months to finally honor our request because -- are you ready for this? -- the hearings were so brief that the volume had slid down inside the side shelf of the bookcase and was so thin it had slid right down to the bottom inside the bookshelf. That's how brief they were. Are you ready for this? They had to break the bookshelf open because it had slid down inside.
There were three bodies of testimony at the hearings on the national marijuana prohibition.
The first testimony came from Commissioner Harry Anslinger, the newly named Commissioner of the Federal Bureau of Narcotics. Now, I think some of you know that in the late 20s and early 30s in this country there were two Federal police agencies created, the FBI and the FBN -- the Federal Bureau of Investigation, and the Federal Bureau of Narcotics.
In our book, I talk at great length about how different the history of these two organizations really are. But, the two organizations, the FBI and the FBN had some surface similarities and one of them was that a single individual headed each of them for a very long time. In the case of the FBI, it was J. Edgar Hoover, and in the case of the FBN it was Harry Anslinger, who was the Commissioner of the Federal Bureau of Narcotics from 1930 until 1962.
Commissioner Anslinger gave the Government testimony and I will quote him directly. By the way, he was not working from a text that he had written. He was working from a text that had been written for him by a District Attorney in New Orleans, a guy named Stanley. Reading directly from Mr. Stanley's work, Commissioner Anslinger told the Congressmen at the hearings, and I quote, "Marihuana is an addictive drug which produces in its users insanity, criminality, and death." That was the Government testimony to support the marijuana prohibition from the Commissioner.
The next body of testimony -- remember all of this took a total of two hours -- uh .. You understand what the idea was, don't you? The idea was to prohibit the cultivation of hemp in America. You all know, because there has been some initiative here in California, that hemp has other uses than its euphoriant use. For one, hemp has always been used to make rope. Number two, the resins of the hemp plant are used as bases for paints and varnishes. And, finally, the seeds of the hemp plant are widely used in bird seed. Since these industries were going to be affected the next body of testimony came from the industrial spokesmen who represented these industries.
The first person was the rope guy. The rope guy told a fascinating story -- it really is fascinating -- the growth of a hemp to make rope was a principle cash crop right where I am from, Northern Virginia and Southern Maryland at the time of the Revolutionary War. But, said the rope guy, by about 1820 it got cheaper to import the hemp we needed to make rope from the Far East and so now in 1937 we don't grow any more hemp to make rope in this country -- it isn't needed anymore.
If you heard that story, there are two things about it that I found fascinating. Number one, it explains the long-standing rumor that our forefathers had something to do with marijuana. Yes, they did -- they grew it. Hemp was the principal crop at Mount Vernon. It was a secondary crop at Monticello. Now, of course, in our research we did not find any evidence that any of our forefathers had used the hemp plant for euphoriant purposes, but they did grow it.
The second part of that story that, to me is even more interesting is -- did you see the date again - 1937? What did the rope guy say? We can get all the hemp we need to make rope from the Far East, we don't grow it hear anymore because we don't need to.
Five years later, 1942, we are cut off from our sources of hemp in the Far East. We need a lot of hemp to outfit our ships for World War II, rope for the ships, and therefore, the Federal Government, as some of you know, went into the business of growing hemp on gigantic farms throughout the Midwest and the South to make rope to outfit the ships for World War II.
So, even to this day, if you are from the Midwest you will always meet the people who say, "Gosh, hemp grows all along the railroad tracks." Well, it does. Why? Because these huge farms existed all during World War II.
But, the rope people didn't care. The paint and varnish people said "We can use something else." And, of the industrial spokesmen, only the birdseed people balked. The birdseed people were the ones who balked and the birdseed person was asked, "Couldn't you use some other seed?"
These are all, by the way, direct quotes from the hearings. The answer the birdseed guy gave was, "No, Congressman, we couldn't. We have never found another seed that makes a birds coat so lustrous or makes them sing so much."
So, on the ground that the birdseed people needed it -- did you know that the birdseed people both got and kept an exemption from the Marihuana Tax Act right through this very day for so-called "denatured seeds"?
In any event, there was Anslinger's testimony, there was the industrial testimony -- there was only one body of testimony left at these brief hearings and it was medical. There were two pieces of medical evidence introduced with regard to the marijuana prohibition.
The first came from a pharmacologist at Temple University who claimed that he had injected the active ingredient in marihuana into the brains of 300 dogs, and two of those dogs had died. When asked by the Congressmen, and I quote, "Doctor, did you choose dogs for the similarity of their reactions to that of humans?" The answer of the pharmacologist was, "I wouldn't know, I am not a dog psychologist."
Well, the active ingredient in marijuana was first synthesized in a laboratory in Holland after World War II. So what it was this pharmacologist injected into these dogs we will never know, but it almost certainly was not the active ingredient in marijuana.
The other piece of medical testimony came from a man named Dr. William C. Woodward. Dr. Woodward was both a lawyer and a doctor and he was Chief Counsel to the American Medical Association. Dr. Woodward came to testify at the behest of the American Medical Association saying, and I quote, "The American Medical Association knows of no evidence that marihuana is a dangerous drug."
What's amazing is not whether that's true or not. What's amazing is what the Congressmen then said to him. Immediately upon his saying, and I quote again, "The American Medical Association knows of no evidence that marihuana is a dangerous drug.", one of the Congressmen said, "Doctor, if you can't say something good about what we are trying to do, why don't you go home?"
That's an exact quote. The next Congressman said, "Doctor, if you haven't got something better to say than that, we are sick of hearing you."
Now, the interesting question for us is not about the medical evidence. The most fascinating question is: why was this legal counsel to the most prestigious group of doctors in the United States treated in such a high-handed way? And the answer makes a principle thesis of my work -- and that is -- you've seen it, you've been living it the last ten years. The history of drugs in this country perfectly mirrors the history of this country.
So look at the date -- 1937 -- what's going on in this country? Well, a lot of things, but the number one thing was that, in 1936, President Franklin Roosevelt was reelected in the largest landslide election in this country's history till then. He brought with him two Democrats for every Republican, all, or almost all of them pledged to that package of economic and social reform legislation we today call the New Deal.
And, did you know that the American Medical Association, from 1932, straight through 1937, had systematically opposed every single piece of New Deal legislation. So that, by 1937, this committee, heavily made up of New Deal Democrats is simply sick of hearing them: "Doctor, if you can't say something good about what we are trying to do, why don't you go home?"
So, over the objection of the American Medical Association, the bill passed out of committee and on to the floor of Congress. Now, some of you may think that the debate on the floor of Congress was more extensive on the marijuana prohibition. It wasn't. It lasted one minute and thirty-two seconds by my count and, as such, I will give it to you verbatim.
The entire debate on the national marijuana prohibition was as follows -- and, by the way, if you had grown up in Washington, DC as I had you would appreciate this date. Are you ready? The bill was brought on to the floor of the House of Representatives -- there never was any Senate debate on it not one word -- 5:45 Friday afternoon, August 20. Now, in pre-air-conditioning Washington, who was on the floor of the House? Who was on the floor of the House? Not very many people.
Speaker Sam Rayburn called for the bill to be passed on "tellers". Does everyone know "tellers"? Did you know that for the vast bulk of legislation in this country, there is not a recorded vote. It is simply, more people walk past this point than walk past that point and it passes -- it's called "tellers". They were getting ready to pass this thing on tellers without discussion and without a recorded vote when one of the few Republicans left in Congress, a guy from upstate New York, stood up and asked two questions, which constituted the entire debate on the national marijuana prohibition.
"Mr. Speaker, what is this bill about?"
To which Speaker Rayburn replied, "I don't know. It has something to do with a thing called marihuana. I think it's a narcotic of some kind."
Undaunted, the guy from Upstate New York asked a second question, which was as important to the Republicans as it was unimportant to the Democrats. "Mr. Speaker, does the American Medical Association support this bill?"
In one of the most remarkable things I have ever found in any research, a guy who was on the committee, and who later went on to become a Supreme Court Justice, stood up and -- do you remember? The AMA guy was named William C. Woodward -- a member of the committee who had supported the bill leaped to his feet and he said, "Their Doctor Wentworth came down here. They support this bill 100 percent." It wasn't true, but it was good enough for the Republicans. They sat down and the bill passed on tellers, without a recorded vote.
In the Senate there never was any debate or a recorded vote, and the bill went to President Roosevelt's desk and he signed it and we had the national marijuana prohibition.
1938 to 1951
Now, the next step in our story is the period from 1938 to 1951. I have three stories to tell you about 1938 to 1951.
The first of them. Immediately after the passage of the national marijuana prohibition, Commissioner Anslinger decided to hold a conference of all the people who knew something about marijuana -- a big national conference. He invited forty-two people to this conference. As part our research for the book, we found the exact transcript of this conference. Ready?
The first morning of the conference of the forty-two people that Commissioner Anslinger invited to talk about marijuana, 39 of them got up and said some version of "Gee, Commissioner Anslinger, I don't know why you asked me to this conference, I don't know anything about marijuana."
That left three people. Dr. Woodward and his assistant -- you know what they thought.
That left one person -- the pharmacologist from Temple University -- the guy with the dogs.
And what do you think happened as a result of that conference? Commissioner Anslinger named the pharmacologist from Temple University the Official Expert of the Federal Bureau of Narcotics about marijuana, a position the guy held until 1962. Now, the irony of trying to find out what the drug did after it had been prohibited -- finding out that only one person agrees with you -- and naming him the Official Expert, speaks for itself.
The next story from this time period was a particular favorite of the police groups to whom I spoke at the FBI Academy, because it is a law enforcement story.
After national marijuana prohibition was passed, Commissioner Anslinger found out, or got reports, that certain people were violating the national marijuana prohibition and using marijuana and, unfortunately for them, they fell into an identifiable occupational group. Who were flouting the marijuana prohibition? Jazz musicians. And so, in 1947, Commissioner Anslinger sent out a letter, I quote it verbatim, "Dear Agent So-and-so, Please prepare all cases in your jurisdiction involving musicians in violation of the marijuana laws. We will have a great national round-up arrest of all such persons on a single day. I will let you know what day."
That letter went out on, I think, October 24, 1947. The responses by the resident agents were all in the file. My favorite -- at the bottom line, there wasn't a single resident agent who didn't have reservations about this idea -- came from the Hollywood agent. This is the exact letter of the FBN agent in charge in Hollywood.
"Dear Commissioner Anslinger,
I have your letter of October 24. Please be advised that the musical community here in Hollywood are unionized and very tight we have been unable to get an informant inside it. So, at the present time, we have no cases involving musicians in violation of the marihuana laws."
For the next year and a half, Commissioner Anslinger got those kinds of letters. He never acknowledged any of the problems that the agents said they were having with this idea and always wrote them back the same letter.
"Dear Agent so-and-so,
Glad to hear you are working hard to give effect to my directive of October 24, 1947. We will (and he always underlined the word 'will') have a great national round-up arrest of musicians in violation of the marijuana laws all on a single day. Don't worry, I will let you know what day."
This went on -- and, of course, you know that some jazz musicians were, in fact, arrested in the late 40's -- this all went on until it ended just the way it began -- with something that Anslinger said. I don't see anybody in here really old enough to appreciate this point, but Commissioner Anslinger was testifying before a Senate Committee in 1948. He was saying, "I need more agents." And, of course, the Senators asked him why.
"Because there are people out there violating the marijuana laws."
Well, you know what the Senators asked -- "Who?"
And in a moment that every Government employee should avoid like the plague, Anslinger first said, "Musicians." But then he looked up at that Senate committee and he gave them a little piece of his heart and said the single line which provoked the most response in this country's history about the non-medical use of drugs. Anslinger said, "And I don't mean good musicians, I mean jazz musicians."
Friends, there is no way to tell you what a torrent ensued. Within 24 hours, 76 newspaper editorials slammed him, including special editions the then booming trade press of the jazz music industry. With three days, the Department of the Treasury had received fifteen thousand letters. bunches of them were still in bags when I got there -- never been opened at all. I opened a few. Here was a typical one, and it was darling.
"Dear Commissioner Anslinger,
I applaud your efforts to rid America of the scourge of narcotics addiction. If you are as ill-informed about that as you are about music, however, you will never succeed."
One of the things that we had access to that really was fun was the Commissioner's own appointment book for all of his years. And, five days after he says "I don't mean good musicians, I mean jazz musicians." there is a notation: 10 AM -- appointment with the Secretary of the Treasury." Well, I don't know what happened at that appointment, but from that appointment on, no mention is ever made again of the great national round-up arrest of musicians in violation of the marijuana laws all on a single day, much to the delight of the agents who never had any heart for it in the first place.
The final story from this period is my favorite story from this period, by far, and, again, there is simply nobody here who is really old enough to appreciate this story. You know, if you talk to your parents -- that's the generation we really need to talk to -- people who were adults during the late 30's and 40's. And you talk to them about marijuana in particular you would be amazed at the amazing reputation that marijuana has among the generation ahead of you as to what it does to its users.
In the late 30's and early 40's marihuana was routinely referred to as "the killer drug", "the assassin of youth". You all know "reefer madness", right? Where did these extraordinary stories that circulated in this country about what marijuana would do to its users come from?
The conventional wisdom is that Anslinger put them over on Americans in his effort to compete with Hoover for empire-building, etc. I have to say, in some fairness, that one of the things that our research did, in some sense, was to rehabilitate Commissioner Anslinger. Yes, there was some of that but, basically, it wasn't just that Anslinger was trying to dupe people.
The terrific reputation that marijuana got in the late 30s and early 40s stemmed from something Anslinger had said. Does everybody remember what Anslinger said about the drug? "Marihuana is an addictive drug which produces in its users insanity, criminality, and death."
Well, this time the magic word -- come along lawyers out there, where's the magic word? -- Insanity. Marihuana use, said the Government, would produce insanity.
And, sure enough, in the late 30s and early 40s, in five really flamboyant murder trials, the defendant's sole defense was that he -- or, in the most famous of them, she -- was not guilty by reason of insanity for having used marijuana prior to the commission of the crime.
All right, it's time to take you guys back to class here. If you are going to put on an insanity defense, what do you need? You need two things, don't you? Number one, you need an Expert Witness.
Where, oh where, in this story, are we going to find an expert witness? Here it comes -- sure enough -- the guy from Temple University -- the guy with the dogs. I promise you, you are not going to believe this.
In the most famous of these trials, what happened was two women jumped on a Newark, New Jersey bus and shot and killed and robbed the bus driver. They put on the marijuana insanity defense. The defense called the pharmacologist, and of course, you know how to do this now, you put the expert on, you say "Doctor, did you do all of this experimentation and so on?" You qualify your expert. "Did you write all about it?" "Yes, and I did the dogs" and now he is an expert. Now you ask him what? You ask the doctor "What have you done with the drug?" And he said, and I quote, "I've experimented with the dogs, I have written something about it and" -- are you ready -- "I have used the drug myself."
What do you ask him next? "Doctor, when you used the drug, what happened?"
With all the press present at this flamboyant murder trial in Newark New Jersey, in 1938, the pharmacologist said, and I quote, in response to the question "When you used the drug, what happened?", his exact response was: "After two puffs on a marijuana cigarette, I was turned into a bat."
He wasn't done yet. He testified that he flew around the room for fifteen minutes and then found himself at the bottom of a two-hundred-foot high ink well
Well, friends, that sells a lot of papers. What do you think the Newark Star Ledger headlines the next day, October 12, 1938? "Killer Drug Turns Doctor to Bat!"
What else do we need to put on an insanity defense? We need the defendant's testimony -- himself or herself. OK, you put defendant on the stand, what do you ask? "What happened on the night of . ."
"Oh, I used marijuana."
"And then what happened?"
And, if the defendant wants to get off, what is he or she going to say? "It made me crazy."
You know what the women testified? In Newark they testified, and I quote, "After two puffs on a marijuana cigarette my incisor teeth grew six inches long and dripped with blood."
This was the craziest business you ever saw. Every one of these so-called marijuana insanity defenses were successful.
The one in New York was just outlandish. Two police officers were shot and killed in cold blood. The defendant puts on the marijuana insanity defense and, in that case, there was never even any testimony that the defendant had even used marijuana. The testimony in the New York case was that, from the time the bag of marijuana came into his room it gave off "homicidal vibrations", so he started killing dogs, cats, and ultimately two police officers.
Commissioner Anslinger, sitting in Washington, seeing these marijuana insanity defenses, one after another successful, he writes to the pharmacologist from Temple University and says, "If you don't stop testifying for the defense in these matters, we are going to revoke your status as the Official Expert of the Federal Bureau of Narcotics." He didn't want to lose his status, so he stopped testifying, nobody else would testify that marijuana had turned them into a bat, and so these insanity defenses were over but not before marijuana had gotten quite a reputation, indeed.
The next step -- and now we are going to move very quickly here -- in 1951. We get a whole new drug law called the Boggs Act and it is important to us for only two reasons.
Number one, it reflects what I am going to call the formula for drug legislation in this country. Here is the formula. The formula really is always the same, think about it in our lifetime.
The formula is that someone, and by the way, that someone is usually the media, perceive an increase in drug use. What's the answer? The answer in the history of this country is always the same -- a new criminal law with harsher penalties in every single offense category.
Where did the perception come from this time? Well, if you have ever seen movies from this time period like High School Confidential, the perception was that kids in high school were starting to use drugs. What's the answer? The answer is always the same. The Boggs Act of 1951 quadrupled the penalties in every single offense category and, by the way, the Boggs Act had a whole new rationale for the marijuana prohibition.
Do you remember the old rationale -- that marijuana was an addictive drug which caused in its users insanity, criminality, and death? Just before Anslinger was to testify on the Boggs Act, the doctor who ran for the Government the Lexington, Kentucky narcotics rehabilitation clinic testified ahead of Anslinger and testified that the medical community knew that marijuana wasn't an addictive drug,. It doesn't produce death, or insanity, and instead of producing criminality, it probably produces passivity, said the doctor.
Who was the next witness? Anslinger. And, if you see, that the rug had been pulled out from under everything he had said in the 1937 hearings to support the marijuana prohibition. In what I call a really slick Federal shuffle -- Anslinger, you know, had been bitten bad enough by what he said, he didn't want that again -- he said, the doctor is right, marijuana -- he always believed, by the way, that there was something in marijuana which produced criminality -- is not an addictive drug, it doesn't produce insanity or death but it is "the certain first step on the road to heroin addiction." And the notion that marijuana was the stepping stone to heroin became, in 1951, the sole rationale for the national marijuana prohibition. It was the first time that marijuana was lumped with all the other drugs and not treated separately, and we multiply the penalties in every offense category.
By the way, I told you that the history of drug legislation reflects the history of the country. 1951, what's going on? The Korean War, the Cold War. It didn't take the press a minute to see this perceived use in drug use among high school kids as our "foreign enemies", using drugs to subvert the American young. In our book, we have ten or fifteen great political cartoons. My favorite is a guy with a big Fu Man Chu (mustache) labeled "Oriental Communism." He has a big needle marked "Dope" and he has the American kids lying down -- "Free World" it is marked. There it was -- that our foreign enemies were going to use drugs to subvert the American young. What did we do? We passed a new law that increased the penalties in every offense category by a factor of four.
Well, now once you buy it, the ball is going to roll like crazy.
1956 and the Daniel Act
1956, we get another new drug law, called the Daniel Act, named for Senator Price Daniel of Texas. It is important to us for only two reasons. One, it perfectly reflects the formula again. What is the formula? Somebody perceives an increase in drug use in this country and the answer is always a new criminal law with harsher penalties in every offense category.
Where did the perception in 1956 come from that there was an increase in drug use? Answer: Anybody remember 1956? In 1956, we had the first set ever of televised Senate hearings. And whose hearings were they? They were the hearings of Senator Estes Kefauver of Tennessee about organized crime in America.
These hearings, which everybody watched on their little sets showed two things that we all know today, but it sure made their socks roll up and down then. Number one, there is organized crime in America and number two, it makes all its money selling drugs. There it was, that was all the perception we needed. We passed the Daniel Act which increased the penalties in every offense category, that had just been increased times four -- times eight.
With the passage of each of these acts, the states passed little Boggs acts, and little Daniel acts, so that in the period 1958 to 1969, in the Commonwealth of Virginia, and Virginia was typical, the most heavily penalized crime in the Commonwealth was possession of marijuana, or any other drug.
It led to a mandatory minimum sentence of twenty years, no part of which you were eligible for parole or probation, and as to no part of it were you eligible for a suspended sentence.
Just to show you where it was, in the same time period first degree murder in Virginia had a mandatory minimum sentence of fifteen years. Rape, a mandatory minimum sentence of ten years. Possession of marijuana -- not to mention sales of marijuana with its mandatory minimum of forty years -- mandatory minimum of twenty years.
That is the situation in 1969 when we have a new drug law, the first one in this country's history that does not follow the formula. It is the 1969 Dangerous Substances Act. For he first time in this country's history, we have a perception of an increase in drug use during the Sixties, but instead of raising the penalties, we lower them. And, further, in the Dangerous Substances Act of 1969, for the first time we finally abandon the so-called "taxing" mythology.
In the 1969 Act, what the Federal law does is, it takes all the drugs we know -- if you can't fill in this next blank, you are in trouble -- except two -- which two? Which two are never going to be mentioned? Nicotine and alcohol. But, other than nicotine and alcohol -- every other drug.
By the way, I tried this with the FBI for twenty years and they wouldn't listen, and you won't listen either but, I am going to try. If you are going to go out and talk about drugs and whatever you are going to do with drugs, will you please discard the entirely antiquated and erroneous word "narcotics." Narcotics are drugs that put people to sleep. Almost all of the drugs that we are interested in today don't do that.
So, in 1969, the Dangerous Substances Act gave up the effort to define what are narcotic drugs. What the 1969 act did, and what most state laws still do, is to classify all drugs except nicotine and alcohol by two criteria. What is the drug's medical use? And, what is the drug's potential for abuse?
We put all the drugs, by those two criteria, in schedules, and then we tie the penalties for possession, possession with intent to sell, sale, and sale to a minor to the schedule of the drug in question. Now, again, I am no good at this anymore, I have not kept up with the drug laws, I don't know who is in what schedule, and many states have abandoned the schedule but, to give you a flavor of it: The first schedule, Schedule One Drugs were drugs that had little or no medical use and a high potential for abuse. What's going to go in there? LSD, marijuana, hashish, they are all in Schedule One -- little or no medical use and a high potential for abuse.
Then you get some medical use, high potential for abuse -- what do you want there? Barbiturates, amphetamines,.
Then we are going to get what? High medical use and high potential for abuse. Morphine, codeine. Codeine is the best one because codeine is in almost every single prescription cough medicine and it is addictive as can be.
Then you go on down and get the antibiotics -- high medical use, almost no potential for abuse, and there you are.
Once you schedule your drugs, you then tie the penalties for the drugs to the schedule and then, because in 1969 they wanted to reduce the marijuana penalties they had to deal with marijuana separately and did so.
But the 1969 act important for two reasons again: One, we abandoned the taxing mythology and; two, it was the first law in this country's history that, instead of raising the penalties in every offense category, lowered them.
Well, then you know what happened. We get the War on Drugs. You know how it all went down. We got perceptions in the 80s that there was an increase in drug use, a great dramatic decision to declare war on drugs and, predominantly, war on drug users.
What I want to say to you is this, and this is where I think some of you are going to be a little surprised. You know as much about that process as I do. You watched it. You saw how we had one law after another, raising the penalties so that as late as 1990, thirty percent of the minority group population of the City of Baltimore who are male and between 20 and 29 are under court supervision for drugs. Thirty percent, that's the number you are looking for.
The War on Drugs, a very interesting war, because why? It was cheap to fight. It was cheap to fight at first -- why? You heard me in the "Recent Decisions" talk. What was last year's big moment, and the year before? The change in cheap and easy forfeiture. Criminal forfeiture was used to make this a costless war. That is, easy forfeiture from those who were caught allowed us to pay for the war in that way. I think we are going to have some real questions about whether people want to pay for the war on drugs through their taxes because now the Court has made forfeiture much, much more difficult in their overall concern for property rights.
But here is what I think may surprise some of you. You guys know as much about the War on Drugs as I do. I didn't come hear to talk, or to harangue, or to give you any opinions on that point. I think it speaks for itself. It is a failure and I think it will be judged as a failure. What I wanted to bring you instead was, instead of talking about that that everybody is talking about -- and you guys will ultimately resolve it and you guys are the ones who are seeing all the drug cases, day in and day out, and always will, until this changes. But, what I thought I could bring you was the part of the story you hadn't heard -- how we got to where we were when the War on Drugs was declared.
Conclusion - The Issue of Prohibition
And one other thing I want to do with you this morning, and that's this -- I want to say one thing. To tell you the real truth, my interest isn't in drugs, or in the criminalization of drugs although I think we should abolish the criminal penalties for drugs, and deal with it as the Europeans do in a medical way, but who cares? That's an opinion.
What interests me though, isn't drugs. What interests me is that larger issue, and the reason that I wrote the piece, and the reason they were my tenure pieces, I am interested in a much larger issue, and that is the idea of Prohibition -- the use of criminal law to criminalize conduct that a large number of us seem to want to engage in.
And, for my purposes, -- now, Professor Bonnie went on to be associated with NIDA and with all kinds of drug-related organizations and continues to be interested in the drug laws -- I am not. My interest is in criminal prohibitions and, for my purposes, as a criminal law scholar, we could have used any prohibition -- alcohol prohibition, the prohibition against gambling that exists still in many states. How about the prohibition in England from 1840 to 1880 against the drinking of gin? Not drinking, just gin -- got it? We could have used any of these prohibitions. We didn't. We chose the marijuana prohibition because the story had never been told -- and it is an amazing story.
We could have used any of these prohibitions. We could have used the alcohol prohibition. The reason we didn't is because so much good stuff has been written about it. And are you aware of this? That every single -- you know how fashionable it is to think that scholars can never agree? -- Don't you believe that -- Every single person who has ever written seriously about the national alcohol prohibition agrees on why it collapsed. Why?
Because it violated that iron law of Prohibitions. What is the iron law of Prohibitions? Prohibitions are always enacted by US, to govern the conduct of THEM. Do you have me? Take the alcohol prohibition. Every single person who has ever written about it agrees on why it collapsed.
Large numbers of people supported the idea of prohibition who were not themselves, opposed to drinking. Do you have me? What? The right answer to that one is Huh? Want to hear it again?
Large numbers of people supported the idea of prohibition who were not themselves, opposed to drinking. Want to see it?
Let me give you an example, 1919. You are a Republican in upstate New York. Whether you drink, or you don't, you are for the alcohol prohibition because it will close the licensed saloons in the City of New York which you view to be the corrupt patronage and power base of the Democratic Party in New York. So almost every Republican in New York was in favor of national alcohol prohibition. And, as soon as it passed, what do you think they said? "Well, what do you know? Success. Let's have a drink." That's what they thought, "let's have a drink." "Let's drink to this." A great success, you see.
Do you understand me? Huge numbers of people in this country were in favor of national alcohol prohibition who were not themselves opposed to drinking.
I just want to go back to the prohibition against the drinking of gin. How could a country prohibit just the drinking of gin, not the drinking of anything else for forty years? Answer: The rich people drank whiskey and the poor people drank what? -- gin. Do you see it?
Let's try the gambling prohibition. You know when I came to Virginia, this was a very lively issue, the gambling prohibition. By the way, I think it's a lively issue in California. Are you ready for it?
Have you ever seen the rhetoric that goes around the gambling prohibition? You know what it is. Look, we have had a good time. We have been together yesterday, we have been together today, I have known a lot of you guys for ages. How about after the talk, we have a minute or two, let's go on up to your room and we will play a little nickel, dime, quarter poker. Want to play some poker this afternoon? Why not? It's a nice thing to do.
Would we be outraged if the California State Police came barreling through the door and arrested us for violation of California's prohibition on gambling? Of course we would. Because, who is not supposed to gamble? Oh, you know who is not supposed to gamble -- them poor people, that's who. My God, they will spend the milk money. They don't know how to control it. They can't handle it. But us? We know what we are doing.
That's it. Every criminal prohibition has that same touch to it, doesn't it? It is enacted by US and it always regulates the conduct of THEM. And so, if you understand that is the name of the game, you don't have to ask me, or any of the other people which prohibitions will be abolished and which ones won't because you will always know. The iron law of prohibitions -- all of them -- is that they are passed by an identifiable US to control the conduct of an identifiable THEM.
And a prohibition is absolutely done for when it does what? Comes back and bothers US. If, at any time, in any way, that prohibition comes back and bothers us, we will get rid of it for sure, every doggone time. Look at the alcohol prohibition if you want a quick example. As long as it is only THEM --- you know, them criminals, them crazy people, them young people, them minority group members --- we are fine. But any prohibition that comes back and bothers US is done for.
Let's just try the marijuana prohibition as a quick one. Who do you think was arrested 650,000 strong two years ago for violation of the marijuana laws? Do you think it was all minority group members? Nope. It was not. It was some very identifiable children of US -- children of the middle class. You don't have to answer my opinion. No prohibition will stand -- ever-- when it comes back and penalizes our children -- the children of US who enacted it. And in fact, do you have any real doubt about that? Do you know what a fabulous sociological study we will be if we become the first society in the history of the world to penalize the sons and daughters of the wealthy class? Unheard of.
And so, yeah, we will continue the War on Drugs for a while until everybody sees its patent bankruptcy. But, let me say that I am not confident that good sense will prevail. Why? Because we love this idea of prohibition. We really do. We love it in this country. And so I will tell you what I predict. You will always know which ones are going out and which ones are coming in. And, can't you see the one coming right over the hill? Well, folks, we are going to have a new prohibition because we love this idea that we can solve difficult medical, economic, and social problems by the simple enactment of a criminal law. We adore this, and of course, you judges work it out, we have solved our problem. Do you have it? Our problem is over with the enactment of the law. You and the cops work it out, but we have solved our problem.
Here comes the new one? What's it going to be? No, it won't be guns, this one starts easy. This one is the Surgeon General has what? --Determined -- not "we want a little more checking it out", not "we need a few more studies", not "reasonable people disagree" -- "The Surgeon General has determined that the smoking of cigarettes will kill you."
Now, all you need, and here is my formula, for a new prohibition every time is what? We need an intractable, difficult, social, economic, or medical problem. But that is not enough. There has to be another thing. It has to divide by class --- by social or economic class, between US and THEM.
And so, here it comes. '
You know the Federal Government has been spending a lot of money since 1968 trying to persuade us not to smoke. And, indeed, the absolute numbers on smoking have declined very little. But, you know who has quit smoking, don't you? In gigantic numbers? The college-educated, that's who. The college-educated, that's who doesn't smoke. Who are they? Tomorrow's what? Movers and kickers, that's who. Tomorrow's movers and kickers don't smoke. Who does smoke? Oh, you know who smokes out of all proportion to their numbers in the society -- it is the people standing in your criminal courtrooms, that's who. Who are they? Tomorrow's moved and kicked, that's who.
And, there it is friends, once it divides between the movers and kickers and the moved and kicked it is all over and it will be all over very shortly.
It starts with "You know, they shouldn't smoke, they are killing themselves." Then it turns, as it has -- you see the ads out here -- "They shouldn't smoke, they are killing us." And pretty soon, that class division will happen, we will have the legislatures full of tomorrow's movers and kickers and they are going to say just what they are going to say any time now. "You know, this has just gotta stop, and we got an answer for it." We are going to have a criminal statute that forbids the manufacture, sale, or possession of tobacco cigarettes, or tobacco products period.
You know that the cigarette companies are expecting it. What have they been doing? They have been shifting all of their operations out of the United States and diversifying like crazy. Where are they going to sell their cigarettes? In China, that's where. And they are already moving, because they see it and I see it.
Ready? What are we going to have? You know what we are going to have. One day -- when's it gonna happen, ten years, fifteen? -- some legislator will get up and, just as though it had never been said before, "You know we gotta solve this smoking problem and I got a solution -- a criminal prohibition against the manufacture, sale, or possession of tobacco cigarettes." And then you know what happens. Then everybody who did want a cigarette here today, if there is anyone here who smokes, you are going to have to hide in the bathroom. And cigarettes are no longer going to be three dollars a pack, they are going to be three dollars a piece. And who's going to sell them to you? Who will always sell them to you? The people who will sell you anything -- organized crime. You got the concept, we will go through the whole darn thing again because I am telling you this country is hooked on the notion of prohibition.
Let me conclude, and again this is my prediction -- I will tell you I don't think it is subject to opinion. Just look at it. Just take a look at what has happened now and what will happen. I will tell you how inexorable it is. If we get together here in the year 2005, I will bet you that it is as likely as not that the possession of marijuana may not be criminal in this state. But the manufacture, sale, and possession of tobacco will be, and why? Because we love this idea of prohibitions, we can't live without them. They are our very favorite thing because we know how to solve difficult, social, economic, and medical problems -- a new criminal law with harsher penalties in every category for everybody.