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Marihuana, A Signal of Misunderstanding
The Report of the National Commission on Marihuana and Drug Abuse
I. Control of Marihuana, Alcohol and Tobacco
This chapter traces the legislative histories of marihuana, alcohol, and tobacco.
In the first section, "History of Marihuana Legislation," the origins of the intoxicant use of cannabis in this country during the early 20th century are noted along with the subsequent state and federal statutes enacted prohibiting use, distribution, production and sale.
Proscriptions began appearing on the books after about 1914 and continued through 1971, which brings the reader to the point subsequently covered by the rest of this Appendix.
Early colonial laws regarding alcohol are described in the beginning of the next section, "History of Alcohol Prohibition." From that point in history, the national movements which spread over the next two centuries, culminating in the enactment of National Prohibition from 1920 to 1933, are described.
The various state modes of control which appeared after Repeal are then briefly enumerated along with a discussion of the present state controls over production, distribution, and sale of intoxicating beverages.
The introduction of tobacco cultivation in 1613 in the colony of Virginia opens the third section, "History of Tobacco Regulation." The widespread use of tobacco in the latter 1800's into the first half of the 20th century is traced along with the increasing pressure from groups fearful of tobacco's deleterious effects on health.
Federal sumptuary regulations are outlined along, with a discussion of the impact further federal controls might have on the tobacco economy.
*This section is drawn from the manuscript of The Marihuana Consensus: A History of
American Marihuana Prohibition, in press 1972, by Professors Charles H. Whitebread, 11,
and Richard J. Bonnie of the University of Virginia Law School.
"Marihuana" or Indian hemp, labeled Cannabis Sativa L. by Linneas in 1753, has been used for centuries in Asia and Africa for its intoxicant properties. It was cultivated as a source of fiber in North America in the early 17th century. Yet, cannabis was not used as an intoxicant in North America until the late 19th century, and in the United States until the early 20th.
Cannabis use was prevalent in Mexico by 1898. Widely cultivated and growing wild, the drug was readily available for eating, drinking, or smoking, the latter being by far the most common method of ingestion. Soldiers in Pancho Villa's army are reputed to have used the drug freely. The path of the introduction of marihuana smoking for pleasure into the United States was not via Europe, which transmitted the fiber, oil, and medicinal uses of hemp, but via Mexico and the West Indies.
The plant and its intoxicant use in the United States in the first decades of the 20th century encountered a political and social climate which was not particularly conducive to hearty growth. Gradually criminal prohibitions appeared on the statute books of nearly every state where the drug was used.
Well into the thirties, however, marihuana smoking attracted little attention from the national policy and opinion apparatus which was deeply ensnared in drug matters of much wider social impact than the limited, regional use of this new drug.
The "villain" theory of American marihuana prohibition - attributing the drug's illegal status to the Federal Bureau of Narcotics and its longtime head, Harry J. Anslinger - has been particularly popular in recent years.
Although the federal narcotics bureaucracy, with Commissioner Anslinger at the helm,
was to become marihuana's leading antagonist in the mid-thirties, a restrictive, public
policy toward the drug was well-rooted locally before that time. During the
"local" phase of marihuana prohibition, lasting roughly from 1914 to 1931,
practically every state west of the Mississippi, except for two, had prohibited use of the
drug for non-medical purposes.
The real story of marihuana policy in the United States begins as a series of
distinctly local tales.
STATE PROHIBITION: 1914-1930
Marihuana use was a familiar phenomenon in the border towns of Texas and New Mexico after 1910. First to note the use of the drug were El Paso law enforcement officials who quickly secured a local ordinance in 1914 banning sale and possession of the drug. El Paso officials and local representatives of the Customs and Agriculture Departments of the Federal Government agitated for state and federal legislation to combat the "killer weed."
After an official request by the Secretary of Agriculture, the Secretary of the Treasury issued a decision under the Food and Drug Act prohibiting importation of cannabis after 1915 for other than medical purposes.
On the state level in Texas, legislation was slow in coming. Marihuana use was still a local problem in the 'border towns and it attracted little statewide interest. The Texas Legislature included marihuana when it passed a general narcotics statute in 1919, prohibiting transfer of listed narcotics except for medical purposes (Texas, 1919: 278). In 1923, the statute was tightened to prohibit possession with intent to sell (Texas, 1923: 156-157). The legislature's failure to prohibit simple possession or use reflected an objection to interfering with private conduct.
The degree of public interest in narcotics and marihuana is well-illustrated by the
limited newspaper coverage. In its only direct reference to the 1923 marihuana
legislation, the Austin Texas Statesman, which had given the legislature extensive
The McMillan Senate Bill amended the anti-narcotic law so as to make unlawful the
possession for the purpose of sale of marihuana or other drugs. Marihuana is a Mexican
herb and is said to be sold on the Texas-Mexican border (Austin Texas Statesman,
Even more surprising is the fact that the El Paso Times did not mention the McMillan bill before or after its passage.
New Mexico in the same year prohibited sale, cultivation and importation of cannabis.
Mere possession was not expressly prohibited but anyone found in possession was presumed
to have imported the marihuana illegally (New Mexico, 1923: 58-59). The Santa Fe New
Mexican, hometown newspaper of the bill's sponsors paid scant attention, noting only that:
The Santa Fe representative, however, had better luck with his bill to prevent sale
of marihuana, cannabis indica, Indian hemp or hashish as it is variously known. This bill
was passed without any opposition. Marihuana was brought into local prominence at the
penitentiary board's investigation last summer when a convict testified he could get
marihuana cigarettes anytime he had a dollar. The drug produces intoxication when chewed
or smoked. Marihuana is the name commonly used in the Southwest and Mexico (Santa Fe
New Mexican, 1923).
In addition to coming in via Mexico, marihuana was being smuggled in by sailors from
Cuba and other points in the Indies via New Orleans. Dr. Frank Gomila, Commissioner of
Public Safety of New Orleans, began his campaign for federal legislation which would later
bear fruit. He observed that the traffic was quite organized amounting to thousands of
kilograms a year:
... [T]he custom was to keep [marihuana] In warehouses or storerooms for further
distribution. It was sold by the wholesaler to the retailer who In turn put the 'weed'
through a process known as 'sweating.' The dried leaves and stems were soaked in sugar
water and dried on butcher's brown papers (Gomila and Lambow, 1938: 29).
According to Dr. Gomila and the newspapers, the demand in New Orleans in the mid-twenties was so great that the "peddlers" were able to become exceptionally prosperous by dividing the market. One had exclusive jurisdiction over the blacks unloading the fruit boats, another over the lobby in a certain hotel, and so forth. It should be noted that marihuana was also available at the local pharmacy without a prescription before 1923 in Texas and 1921 in Louisiana. After that marihuana had to be bought on the street unless the user could successfully forge a prescription.
Different pictures emerge, of the marihuana user in El Paso and San Antonio on the one hand and New Orleans and Galveston on the other. In the border towns, he was a Mexican laborer, indolent to some, volatile to others. Local authorities were, by and large, unable to generate any significant public or political interest, although there were no political objections to making the Mexican weed illegal.
In the port cities, however, the marihuana user was a "dope fiend," the basest element of American society. He was a narcotics addict, a pimp, or a gambler; she was a prostitute. In New Orleans, marihuana was simply another narcotic in a city with a major narcotic problem. It was always open to sensationalism.
Even before public attention was excited, however, the prevalence of marihuana use came to the attention of the President of the Louisiana State Board of Health, Dr. Oscar Dowling. On August 21, 1920, he advised the Governor of the increasing availability of marihuana, a "powerful narcotic, causing exhilaration, intoxication, delirious hallucinations, and its subsequent action, drowsiness and stupor. . ." (Jones, 1920).
At the same time, Dr. Dowling wrote to the Surgeon General of the United States, Dr. Hugh Cummings, to advise him of the increasing traffic in morphine, opium, and marihuana, and to seek federal cooperation.
An interesting sidelight of this request for assistance from Washington is that four months later Dr. Dowling was to become embroiled in a bitter battle with the Federal Government over an order to close his pet project, the New Orleans morphine clinics (Dowling, 1920). Ultimately he would lose, and one of the earliest attempts to deal with narcotics addiction would be suppressed for a half century (Lindesmith, 1967: 135-161).
Very little, however, was done about the marihuana issue until the press seized upon it. In the fall of 1926, the New Orleans Item dispatched an army of reporters among the smoking and selling population.
A series of articles published by the more widely circulated Morning Tribune (both the Item and the Tribune were owned by the same publishing company) exposed the immense profits being made and commented upon the volatile effects of the drug upon its "addicts." It was reported that marihuana:
Numbs the sense, creates wild fancies and has a hypnotic effect upon the user,
making his will easily subordinated to that of others.
What emerged from these articles, however, was not a vision of addicts on the streets and pushers on the docks but rather peddlers who lurked on playgrounds seeking to entrap young minds. "Over two hundred children under fourteen are believed to be addicted to the marihuana habit," the paper reported, and "at least 44 schools were definitely being infected" (Gomila and Lambow, 1938: 29-31).
Local policy-makers wasted no time. The New Orleans Police Department immediately launched a round-up. They arrested more than 150 persons for violation of a law which had lain dormant for two years (Gomila and Lambow, 1938: 29-31; WCTIT, 1928).
Dr. Dowling soon circulated "a warning to parents, guardians, and teachers of children against this menace" (WCTIT, 1928: 1). The Women's Christian Temperance Union jumped on the bandwagon, focusing its attacks on the "soft drink" bars which had sprung up all over New Orleans during Prohibition:
The soft drink stand and the corner drug store have taken the place of the saloon as
a social meeting place. Here is where marihuana and liquors can sometimes be bought (WCTU,
Beyond these immediate effects, a more substantial impact of the local policy reaction in New Orleans was the formation of a tightly knit coterie of New Orleans law enforcement, public health, and social welfare officials who would carry their campaign to Washington, with ultimate success.
The drug and the practice of smoking it spread during the mid-twenties from the Gulf Coast and border town points-of-entry in two directions north and west from the border together with its ethnic identity and north and east from New Orleans with its identity as a narcotic and enslaver of youth.
Practically every state west of the Mississippi River prohibited the possession or sale of marihuana during the period 1915 to 1930. Most of them acted by 1930: California (1915), Iowa (1921), Nevada (1923), Washington (1923), Arkansas (1923), Nebraska, (1927), and Wyoming (1929).
The Bureau of Immigration records the entry of 590,765 Mexicans during this period, two-thirds of them remaining in Texas, the others settling in states in the Rocky Mountain area, most of them as farm laborers (U.S. Bureau of Immigration, 1915 to 1930).
Whether motivated by outright ethnic prejudice or by simple discriminatory disinterest, the proceedings before state legislatures resembled those in Texas in 1923. There was little, if any, public attention and no debate. Pointed references were made to the drug's Mexican origins and sometimes to the criminal conduct which inevitably followed when Mexicans ingested the "killer weed.,"
The Colorado Legislature first prohibited possession, cultivation and sale of the drug in 1927, the year after the use of marihuana noticeably increased (Colorado, 1927: 309). At that time., according to a subsequent newspaper report, the drug was " used almost exclusively . . . by the Mexican population employed in the beet fields" (Rocky Mountain News, 1931).
Similarly, in 1929, the Montana Legislature amended its general narcotic law to
marihuana, prohibiting use, sale or possession without a prescription (Montana, 1929: 5).
On seven different days from June 24 to February 10, the date of the bill's passage, the
Montana Standard succinctly noted the progress of the bill through the legislature. The
legislature's attitude was characterized in the January 27 issue:
There was fun in the House Health Committee during the week when the marihuana bill
came up for consideration. Marihuana is Mexican opium, a plant used by Mexicans and
cultivated for sale by Indians. "When some beet field peon takes a few rares of this
stuff," explained Dr. Fred Fulsher of Mineral County, "he thinks he has just
been elected President of Mexico so he starts out to execute all his Political enemies. I
understand that over in Butte where the mexicans often go for the winter they stage
imaginary bullfights in the 'Bower of Roses' or put on tournaments for the favor of
'Spanish Rose' after a couple of whiffs of marihuana. The Silver Bow and Yellowstone
delegations both deplore these international complications." Everybody laughed and
the bill was recommended for passage (Montana Standard, 1929: 3).
About the same time, Mexican laborers bad begun to appear in Idaho and the mayor of
'The Mexican beet field workers have introduced a new problem-the smoking in
cigarettes or pipes of marihuana or grifo. its use is as demoralizing as the use of
narcotics. Smoking grifo is quite prevalent along the Oregon Short Line Railroad; and
Idaho has no law to cope with the use and spread of this dangerous drug (WCTU, 1928:
Idaho passed a law in 1927 (Idaho, 1927: 98).
By 1931, the Texas Legislature finally got around to prohibiting possession of marihuana. By now alcohol prohibition had withdrawn any philosophical barrier to making possession illegal. The San Antonio Light reported that:
At last the state legislature has taken a definite step toward suppression of
traffic in a dangerous and insanity-producing narcotic easily compounded of a weed
(marihuana) indigenous to this section. This newspaper has urged the passage of
prohibitory legislation and is gratified that the solons at Austin have acted, even if
tardily, in the suppression of traffic in a drug which makes, the addict [read Mexican]
frequently a dangerous or homicidal maniac (San Antonio Light, 1931).
In the East, appearance of the practice was not a necessary prerequisite for prohibition. That Maine (1913), Massachusetts (1914), Vermont (1915), and Rhode Island (1918) barred the sale of cannabis without a prescription before 1920 does not indicate that marihuana smoking had appeared there on any significant scale. Rather, in the course of anticipating and implementing the national anti-narcotics policy declared by the Harrison Act in 1914, medical representatives on the drafting committees recommended the inclusion of "another narcotic" to which addicts could resort once the other opiates became difficult to obtain.
The New York Times in 1914 described cannabis as a "narcotic [having] practically
the same effect. as morphine and cocaine," (New York Times, 1914: 6) and it noted in
an editorial that:
[T]he inclusion of cannabis indica among the drugs to be sold only on prescription
is only common sense. Devotees of hashish are now hardly numerous enough here to count,
but they are likely to increase as other narcotics become harder to obtain (New York
Times, 1914: 8).
By 1923, the New York Times referred to marihuana as the city's "latest habit-forming drug" when reporting its exhibition at a Women's Club meeting (New York Times, 1923: 24). Finally, in 1927, whether responding to an increase in use or to the substitution admonition, the legislature included marihuana in its definition of "habit forming drugs" in a comprehensive narcotics bill (New York, 1927: 1695).
The situation in Chicago paralleled that in New York until 1927. Large Mexican
communities developed in Chicago and Gary, Indiana, during the twenties and marihuana
smoking became common in these areas and among journeymen musicians as well. As in New
York, there was little public concern. The New Orleans pattern took over around 1927,
however, when the attention of local law enforcement officials was suddenly drawn to the
Mexicans and their "muggles." One law enforcement official reported that:
There are about 7,000 Mexicans in Gary, 10,000 in Indiana Harbor and 8,000 in South
Chicago.... The Mexicans depend on the steel mills, railroads, and construction gangs for
employment. Many are drifters when slack labor conditions prevail.... [T]wenty-five
percent of these Mexicans smoke marihuana. In fact, many of them make their living by
raising and peddling the drug (Paul, 1929: 4).
A situation perceived to be so widespread was naturally considered likely to infect the rest of the community. As in New Orleans, reports started to appear that high school students were smoking the weed (Paul, 1929: 1; Chicago Tribune, June 3, 1929).
Since there was then neither state nor federal legislation prohibiting sale of marihuana, the local United States attorney declared war armed with an Internal Revenue statute prohibiting production and transfer of "a cigarette substitute" on which tax had not been paid. In June 1929, he raided wholesale houses "believed to have disposed of large quantities of marihuana cigarettes, sold to school pupils and other youthful thrill seekers." He arrested nine men "most of them Mexicans" (Chicago Examiner, June 22, 1929). At the same time, local officials began to use a statute which prohibited transfer of "any cigarette containing any substance deleterious to health" (Chicago Examiner, June 19, 1929).
The Chicago Tribune, lobbying heavily for anti-marihuana legislation then pending before the Illinois Legislature, reported that day-to-day progress of the enforcement activity (Chicago Tribune, July and October, 1929). Every stall in the legislature earned a banner headline such as:
BAN ON HASHISH BLOCKED DESPITE RAVAGES OF DRUG
In an article appearing in June, 1929, the paper noted:
The number of addicts is growing alarmingly according to authorities, because of the ease with which [marihuana] can be obtained. The habit was introduced a dozen years ago by Mexican laborers . . . but it has become widespread among American youths and girls even among school children.
The legislation, however, was killed.
Marihuana prohibition had become widespread. In states where either Mexicans or the drug had appeared, its use was quickly suppressed.
Soon after being apprised of its presence, local lawmakers invoked the criminal law. In New Orleans, Denver, and Chicago the spectre of a doped school population was the cornerstone of the prohibitory effort.
And, during alcohol prohibition, paralleled by the local phase of marihuana
prohibition, it was naturally imperative to suppress a drug which frustrated alcohol users
might substitute, for their customary intoxicant.
THE UNIFORM NARCOTIC DRUG ACT
Following the ad hoc local phase of marihuana legislation in the United States was the nationalization phase. During this period marihuana became integrated at both the state and federal levels with the nation's narcotics policy which had been manifested forcefully in Congress' adoption of the Harrison Narcotics Act in 1914.
The Harrison Act, a taxing measure, required registration and payment of an occupational tax by all persons who imported, produced, dealt in, sold or gave away opium, cocaine or their derivatives. The Act required all legitimate handlers of these narcotics to file returns setting forth in detail their use of the drugs.
Since the Act also provided that only legitimate users could register and no one but a registered user could obtain the specified form, any transfer by an illegitimate user was a violation of the Act. For those failing to comply with its registration requirements, the original Harrison Act provided penalties of not more than $2,000 in fines or more than five years imprisonment, or both.
Drafted as a tax law rather than an outright criminal statute, the Act was intended to do indirectly what Congress believed it could not do directly: regulate possession and sale of the opiates. However, because the Act essentially was a revenue-raising measure imposing a tax on transfers of narcotics, it could not effectively prohibit the possession of drugs.
This indirect regulation of narcotics traffic had a number of significant consequences. First, since the Act could not penalize users of addiction directly, there was an immediate need for complementary residual state legislation in order to deal effectively with the drug problem.
Second, the enforcement of the Act was as signed to the Internal Revenue Service in the Treasury Department. The first enforcement agency for the Harrison Act was the Narcotics Division of the Prohibition Unit of the Internal Revenue Service created in 1920 (Schmeckebier, 1929: 143). This division was incorporated in the Prohibition Bureau which was created in 1927 (Act, 1927:1381).
In 1930, the enforcement of the narcotics laws was severed from the Bureau of Prohibition and established as the separate Bureau of Narcotics in the Treasury Department (Act, 1930: 585). The existence of this separate, agency has done as much as any single factor to influence the course of drug regulation from 1930 to 1970 (King, 1953: 736).
Although the impact of the Bureau on the passage of the Uniform Narcotic Drug Act and the Marihuana Tax Act will be explained in detail in subsequent sections, it is important here to note that the existence of a separate bureau having responsibility only for narcotics enforcement and for educating the public on drug problems inevitably led to a particularly prosecutorial view of narcotics addiction and the use and abuse of all drugs.
After the passage of the Harrison Act in 1914, there remained a considerable lack of uniformity regarding the offenses prohibited and the penalties imposed by the several states.
In 1919, the American Medical Association asked the Commissioner of Internal Revenue to call a conference, to consider better control of traffic in narcotic drugs. The profession was uncertain of its obligations in the matter because they were faced with an amalgam of conflicting laws. The A.M.A. asked that the wholesale, retail, and manufacturing drug interests be among those attending, along with delegates from the medical profession in each state. The proposal received no official or unofficial response either from the Commissioner of Internal Revenue or the Bureau of Prohibition.
Nevertheless, the American Medical Association, through its own Council on Health and Public Instruction, did hold a conference in early 1922 during which a uniform state narcotic control law was presented. At the November meeting of that conference, there were present 15 representatives of 10 pharmaceutical organizations and two representatives of the medical profession.
The draft of a uniform law was approved unanimously by all present. The American
Medical Association set out to codify the draft and to send it for approval to each of the
constituent organizations (White, August 3, 1932; Woodward, August 6, 1932). After
securing approval, all the associations agreed to pursue enactment first in New York.
The general lack of uniformity in anti-narcotics legislation, the weakness of state
enforcement procedures, and the growing hysteria about dope fiends and criminality
converged in several requests outside the medical community for a uniform state narcotic
law (Anslinger and Tompkins, 1953: 159).
The drafting of the Uniform Narcotic Drug Act must also be viewed against the background of two larger movements: (1) the trend toward the creation and dissemination of uniform state laws by the National Commissioners on Uniform State laws, a group to which each state sent two representatives appointed by the governor; and (2) the general concern in the late 1920's and early 1930's with interstate crime, manifested , for example, by the creation in 1930 of the nearly autonomous Federal Bureau of Investigation. Because the concept of states' rights and narrowly construed federal power was then so powerful, an appeal to the National Commissioners was the inevitable recourse for those pressing for uniform anti-narcotic regulation.
DRAFTING THE UNIFORM ACT
By 1924, the Commissioners had appointed Committee to draft a uniform narcotic drug act At the 1925 meeting of Commissioners, the chair man of the Committee reported that he himself had prepared a first tentative draft based on the New York Act, the Washington state legislation, the Harrison Act, and a bill then before the New York Legislature. Presumably this was the on drafted by the A.M.A. Conference after its 192 meeting.
The chairman noted, however, that Dr. William Woodward, head of the A.M.A.'s Bureau of Legal Medicine and Legislation, with whom he had only recently conferred, had made "some very valuable suggestions." Because the tentative draft had already been printed before these suggestions, he requested that it "not be read but be re-committed to the Committee" (1925 Handbook: 977-985). This first draft included cannabis in the list of "habit-forming drugs," although all such drugs could be distributed and used for medical purposes (1925 Handbook: 978).
A second tentative draft was presented in 1928 and again the draft was not discussed at the conference but recommitted for further study. The second draft was essentially an exact copy of the 1927 New York Statute. It also included cannabis in the class of habit-forming drugs (1928 Handbook: 75-78,323-333).
There was a lack of concern on the part of the Commissioners themselves with the whole
narcotics problem between 1924 and 1928. The President of the Conference, introducing Dr.
In view of the importance of the act I think it would not be amiss to listen to the
Doctor for a few minutes, that he may point out to us why it is important. In some of the
states we do not recognize the importance because it has not been called to our attention (1928
Nor was the Bureau of Prohibition particularly concerned at this time with the cannabis provision. Lack of official concern and interest continued to be the Bureau's attitude toward the second tentative draft (Nutt, June 13,1929).
Since neither the Commissioners nor federal narcotics officials were particularly concerned about state and local control of narcotics generally and marihuana in particular, it seems clear that neither was responsible for the inclusion of marihuana in the category of "habit-forming drugs. Rather, it would appear that it was included in the first draft because that had been drawn from the 1923 Washington statute which had listed cannabis.
Insofar as the second draft was a copy of the 1927 New York Act, inclusion of cannabis in this draft is not unusual. Few, if any, of the persons involved in the drafting were concerned about marihuana smoking or even aware of its use.
Two third drafts were submitted, the first in 1929 and the second in 1930. The initial one closely resembled the second tentative draft, and once again it included cannabis in the category of "habit-forming drugs.` Again, the growth, distribution, and possession of cannabis was prohibited except for medical purposes.
The nascent Congressional interest in marihuana in 1929 and the Bureau of Prohibition's subsequent resistance to amending, and thereby endangering, the Harrison and Export and Import Acts, caused the Bureau to take full notice of this 1929 third draft. Like its predecessors, however, the initial third draft was recommitted for further study (1929 Handbook : 43, 332-346).
The second third tentative draft, submitted in 1930, was the first to remove cannabis from the definition of "habit-forming drugs" and to include only a supplemental provision for dealing with the drug (1930 Handbook: 485,97).
When the Conference of Commissioners met to consider the second third tentative draft, Judge Deering, the Chairman of the Committee on the Uniform Narcotic Drug Act, recommended its recommission for further study because the Committee had not yet had an opportunity to consult the newly created Bureau of Narcotics.
At the time of this conference, August 14, 1930, no one had yet been appointed Commissioner of the Bureau, although Harry J. Anslinger was Acting Commissioner (1930 Handbook: 126-127). The Senate confirmed Anslinger's appointment as Commissioner on December 18, 1930.
The Bureau of Narcotics their became actively involved in the drafting process. Commissioner Anslinger was pressing for inclusion of the cannabis provision. He stated that he felt the limited medical use for cannabis was far outweighed by the need to control potential cannabis addiction (Anslinger, July 28,1930).
Dr. Woodward and the pharmaceutical industry advocated optional inclusion of marihuana on the one hand, and federal narcotics representatives urged not only inclusion but elimination of medical use, on the other.
The fourth tentative draft retained the optional cannabis provision. At a session before the convening of the full Conference of Commissioners from September 9-12, 1931, Commissioner Anslinger and A. L. Tennyson of the Bureau met with Judge Deering to discuss the Bureau's feelings about the fourth tentative draft.
At this time Commissioner Anslinger stated that the Bureau felt strongly that inclusion of cannabis in the state law ought to be mandatory. Moreover, the Bureau urged that the only successful way to deal with the marihuana drug traffic, because of its domestic nature and the easy availability of the weed, was to prohibit the cultivation of the plant altogether and to find some substitute for the limited medical use (Tennyson, September 16, 1931). However, the fourth tentative draft presented to the Conference of Commissioners included the optional marihuana provision. And, the Conference tentatively approved the fourth tentative draft and directed the Committee to prepare a final draft (1931 Handbook: 127-128, 390-402).
The American Medical Association played a key role in the drafting process prior to 1931. Their efforts had been largely responsible for consideration of the Uniform Drug Act in the first place. From the beginning in 1925, Dr. William Woodward, the Director of the A.M.A.'s Bureau of Legal Medicine and Legislation, actively assisted in the drafting of the Act and widely circulated the drafts to interested persons for their comments.
It appears, however, that Dr. Woodward's personal style and the preeminent position of the American Medical Association in the drafting process were resented by the two remaining interest groups-the Federal Bureau of Narcotics and the retail and wholesale pharmaceutical associations. The Bureau had been commenting on drafts only after they had been drawn by the A.M.A. and did not feel it was playing an active role in the drafting process. The pharmaceutical industry felt that their interests were considered only peripherally and that they had been excluded from the heart of tire, drafting process.
As a result of the dissent, a conference of interested parties was scheduled before the final draft was to be presented to the Conference of Commissioners.
Present at this preliminary conference on September 15, 1932, were representatives of the Drug Committee the Federal Bureau of Narcotics, the Department of State, the Public Health Service, the American Medical Association, and delegates from the drug industry and other medically related industries and organizations. The final version of the Uniform Narcotic Drug Act was hammered out at this session. The Bureau was central to the drafting process and Commissioner Anslinger made a major effort to involve the drug manufacturers and the wholesale and retail drug trade in it to protect the Act from possible subsequent political disagreement (Anslinger, August 1, 1932): Finally, the conference agreed on a draft to be presented to the National Conference.
The manufacturers of drug products were strongly opposed to the inclusion of cannabis
under any criminal regulatory scheme. Representatives of the industry opposed a mandatory
cannabis provision. The final conclusion reached by all the parties present was:
After considerable comment, it was decided to eliminate Section 12 (Cannabis) and
leave it to the Conference of Commissioners as to whether it should be included under the
general provisions of the Act (Report of Preliminary Conference, 1932: 23).
The Bureau was no longer insisting on the mandatory inclusion of in absolute marihuana prohibition; it did not want to risk the opposition of the drug industry to the, entire Act.
The fifth tentative draft did, however, include a significant change in form which would have important consequences in the decades to come. Although the marihuana provision remained supplemental to the main body of the Act, any state wishing to regulate the sale and possession of marihuana was instructed, simply, to add cannabis to the definition of "narcotic drugs." All the, other provisions of the, Act would their apply to marihuana as well as to the opiates and cocaine. The Commissioners adopted this form as it had been prepared at the September 15, 1932, preliminary Conference.
The only recorded opposition to the adoption of the final draft came from some
Commissioners who objected to tying the Uniform State Law to the terms of the federal
Harrison Act. This last obstacle was over-come by the argument that a number of states
already had passed such legislation so that the states' rights problem need not stand in
the way. The Act was adopted 26 to 3 (1932 Handbook: 107).
ENACTMENT OF THE UNIFORM ACT BY THE STATES
After final acceptance of the Uniform Act, the Bureau set to work at once to secure state enactment-including an adequate marihuana provision. A comprehensive campaign was undertaken in the press, in legislative chambers, and in any other forum to gain public support for the Uniform Act.
In addition, perceiving the absence of public awareness of marihuana and needing to encourage positive action to overcome the drug's optional status, the Bureau also sought to arouse public interest in marihuana through "an educational campaign describing the drug, its identifications and its evil effects" (Federal Bureau of Narcotics, 1937 : 59).
That there was little general knowledge about cannabis is illustrated by the fact that as late as 1934, it was necessary to show marihuana to the New York police so that they could recognize it growing or in dried, smokable form (New York Times 1934: 6).
The Bureau's district supervisors and local agents were campaigning actively in the legislatures before which the Act was pending. A press campaign was conducted across the country to gain the support of civic groups and other interested parties. Mr. Anslinger sought editorial support in newspapers (Anslinger, October 22, 1936) and assisted in the, drafting of articles for popular magazines (Anslinger, December 23, 1936). To mobilize the Bar, Bureau officials wrote an article for law journals explaining the need for the Uniform Narcotic Drug Act (Anslinger, 1932: 52; Tennyson, 1932: 55).
Despite these efforts, it appears that the Uniform Act had a rough time in state legislatures during its early life. By April 26, 1933, only two states had enacted it in full. As late as March 1935, only 10 states had enacted the Uniform Law.
A number of significant objections had emerged in the state legislatures considering the passage of the Uniform Narcotic Drug Act. First among these was the potential cost to the state of enforcing the Act. Second, there was concern over the number of registrants who would have to be licensed due to the belief that the Uniform Act would require special licensing of doctors, dentists, and veterinarians. Third, the limit on the amount of exempt preparations which could be sold caused a great deal of technical difficulty with the Act. Fourth, many criticized the right of the court to revoke or suspend the license to practice medicine or pharmacy. And finally, there seemed to be widespread misunderstanding of the record-keeping requirements of the Act.
Although these objections were largely administrative, they nevertheless posed what appeared to be serious stumbling blocks to the successful passage of the Uniform Law in all the states.
The combination of public apathy and administrative resistance necessitated a new approach in generating public interest. Beginning in late 1934, Commissioner Anslinger gradually shifted the focus of the FBN's educational campaign away from the liability of federal law enforcement agencies to deal effectively with the local drug problems to the need to cope with the new drug menace-marihuana.
The clearest reflection of the, change in Bureau policy is found in two official statements of Commissioner Anslinger, one made in 1933 and the other in 1936.
One 1933 statement explains the need for a Uniform Narcotic Drug Law and emphasizes United States international obligations, the need for more effective coordination in law enforcement, and the impact the law will have on the dangers of morphine, cocaine, and opium addiction (FBN Paper, July 1933). In the later statement, however, more than half of the time is devoted to a discussion of the "worst evil of all" the marihuana problem.
To aid the new approach's objective, Commissioner Anslinger made speeches and contributed articles to journals. The most influential of his efforts was "Marihuana Assassin of Youth" which appeared in the widely circulated American Magazine in July 1937 (Anslinger and Cooper,1937).
The FBN files contain more than 50 letters addressed to the Commissioner which say: "Your article was the first time I ever heard of marihuana."
Among the most effective proponents of the Uniform Act was the Hearst newspaper chain. These papers began editorializing in favor of enactment within days after the Act had been approved in 1932.
The Hearst chain was not alone. A Birmingham, Alabama, paper on August 22, 1935,
emphasized the need to control marihuana as a reason for adopting the Act (Birmingham Age
Herald, August 22, 1935). A Washington Post columnist in September, 1934, devoted three
quarters of his article to marihuana with quotes from Anslinger and Stanley urging
adoption of the Uniform Act (Washington Post, September 29, 1934).
Other large-city newspapers such as the Cleveland Plain, Dealer and the St. Louis Star Times kept a steady, if intermittent, stream of anti-marihuana articles flowing in the, period just before the passage of the Uniform Act in those areas. In Missouri, especially, local concern generated by the extensive coverage in the Star Times speedily pushed the legislature to adopt the Uniform Act.
Often it has been supposed on the basis of this increased coverage that the use of marihuana increased around 1935. Since there was some larger design involved, however, a firm conclusion is unwarranted. At the same time, it is possible that use, did spread after the publicity campaigns, especially among the young.
Judging from the tremendous expansion in coverage by the New York Times beginning in 1935, the evidence supplied by the LaGuardia Commission in its 1944 Report and the, leap in enforcement activity, marihuana, finally came to New York City in the 1930's, though then probably on a smaller scale than in Denver land the, border towns of Texas.
Apart from the press, another influential participant in the marihuana campaign, especially after the Repeal of Prohibition, was the Women's Christian Temperance Union. Although the WCTU had distributed a pamphlet on marihuana as early as 1927, their publication, the Union Signal, does not reflect any significant interest either in the Uniform Act or marihuana, until 1934. Before that year the "narcotic" receiving the most attention was nicotine. Beginning in 1936, however, the Union Signal had a direct line to the FBN national office, and from then on every issue contained material on marihuana (WCTU bound volumes, yearly).
The World Narcotic Defense Association and its head, Richmond P. Hopson, were also involved in the drive for state enactment. They were continually in postal contact with almost every state legislator in the country (WNDA, 1937). The most well-financed group in the campaign, the Association underwrote national broadcasts and distributed a lengthy pamphlet on marihuana, in 1936.
The General Federation of Women's Clubs also contributed energetically. The Federation
educated its membership about the need for the Uniform Act and about the evils of
marihuana in particular. The Chairman of the Federation's department of legislation noted:
The situation concerning club women particularly is the accessibility of the
frightening degenerating marihuana weed, which is rolled in cigarettes ... and has been
playing such havoc with young high school boys and girls (WCTU, 1936: 285).
The state and local clubs immediately began to unite local legislators and to conduct educational campaigns for parents, teachers and children (WCTU, 1937: 36; Wood, January 13, 1936). An FBN agent appeared at a New York meeting of the local Federation with two marihuana plants. They were exhibited at a local flower show:
Marihuana Plant exhibit at Flower Show
of Katrina Trask Garden Club
Tomorrow, 3 P.M. on at the Casino
This plant is the cause of a dread menace which in being fought by the State Department of Health.
Public Invited to Show-25 cents (Saratogian, 1936: 5)
Other groups such as the YWCA , the National PTA and the National Councils of Catholic Men and Women were all in touch with the Bureau and were made, aware of the Bureau's dual aims of "influencing and creating public opinion in favor of the passage of the Uniform Narcotic Drug Act and awakening the parents of the country to the increasing danger of the use of marihuana." (Anslinger, March 28, 1935).
However, arousing public opinion alone was not the ultimate goal of the campaign. The FBN was interested in the enactment of the Uniform Act along with prohibitory marihuana legislation in all the states.
By early 1935, only 10 states had adopted the Uniform Act. And, three of these states had not included marihuana (Anslinger, March 1, 1935). The Bureau embarked upon its marihuana strategy in 1935, the turning point in state enactment. Whether or not public interest actually existed, public opinion-makers influenced legislative opinion and created a "felt need" for legislation.
Within the next year, 18 more states adopted the Act and every one of them which did
not have previous legislation included marihuana (Anslinger, January 13, 1936; WCTU, 1937:
ENACTMENT OF THE MARIHUANA TAX ACT
Despite the public opinion campaign conducted in the early 1930's the general public was largely unaware of the drug, its use, or its alleged effects; only regional interest was aroused.
A change seems to have occurred after 1935. The increased national awareness played a significant role in the decision of the Treasury Department to seek federal legislation. On April 14, 1937, the "Secretary of the Treasury, on behalf of the Commissioner of Narcotics," submitted the "administration proposal to Congress to impose an excise and transfer tax on dealings in marihuana" (Schaller, 1970: 70).
The scheme of the Marihuana Tax Act was threefold: a requirement that all manufacturers, importers, dealers, and practitioners register and pay a special occupational tax; a requirement that all transactions be accomplished through use of written order forms; and the imposition of a tax on all transfers in the amount of $1 per ounce for transfer to registered persons and a prohibitive $100 per ounce for transfers to unregistered persons.
The key departure of the marihuana tax scheme from that of the Harrison Act is the notion of the prohibitive tax. Under the Harrison Act, a person not required to register, that is, a non-medical user, could not legitimately buy or possess narcotics. To the dissenters in the Supreme Court decisions upholding the Act, this clearly demonstrated that Congress' motive was to prohibit conduct rather than to raise revenue.
The seemingly bizarre legal formulation of this tax measure was precipitated by the recognized need for the Federal Government to take action forbidden to it under prevailing constitutional doctrine.
Hearings on the proposed marihuana taxation were held before the House Ways and Means Committee. During five mornings of testimony by FBN officials, government witnesses, and industry representatives, the Bureau presented the following four-fold argument: (1) marihuana was a disastrous drug; (2) its use was increasing alarmingly and had generated public hysteria; (3) state legislation was incapable of meeting the threat posed by the drug, thus, federal action was required; and (4) the government might best act through separate legislation rather than through an amendment to the Harrison Act.
No definite scientific study of the effects of marihuana was presented to substantiate the position that marihuana was a dangerous drug. No synthesis of available scientific information was submitted nor was there any statement by the Public Health Service. Neither of the government's own public health experts, Assistant Surgeon General, Dr. Walter Treadway, and Dr. Lawrence Kolb, testified, nor did Drs. Walter Bromberg or J. F. Siler who had recently published scientific articles on the effects of cannabis in humans (Siler, et. al., 1933: 269-280; Bromberg, 1934).
Instead, the scientific aspects were presented by a law enforcement agency, the FBN:
Despite the fact that medical men and scientists have disagreed upon the properties of marihuana, and some are inclined to minimize the harmfulness of this drug, the records offer ample evidence that it has a disastrous effect upon many of its users. Recently we have received many reports showing crimes of violence committed by persons while under the influence of marihuana.
The deleterious, even vicious, qualities of the drug render it highly dangerous to
the mind and body upon which it operates to destroy the will, cause one to lose the power
of connected thought, producing imaginary delectable situations and gradually weakening
the physical powers. Its use frequently leads to insanity.
I have a statement here, giving an outline of cases reported to the Bureau or in the
press, wherein the use of marihuana is connected with revolting crimes (U.S. Congress,
Instead of having one of the few researchers who had done any significant research into the effects of cannabis on humans, the Bureau chose a Temple University pharmacologist, Dr. James Munch, whose experience was confined to experimentation of the effects of cannabis on dogs.
The second component of the Bureau's case was the contention that marihuana use had
spread alarmingly in recent years, provoking a public outcry. To demonstrate this, the
Bureau submitted, for the record, the Gomila article cited earlier, and a 1936 letter from
the city editor of the Alamoosa Daily Courier (U.S. Congress, 1937: 32-37). The letter
described an attack by a Mexican-American, allegedly under the influence of marihuana, on
a girl of his region.:
I wish I could show you what a small marihuana cigarette can do to one of our
degenerate Spanish-speaking residents. That's why our problem is so great; the greatest
percentage of our population is composed of Spanish speaking persons most of whom are low
mentally, because of social and racial conditions (Baskette, September 4, 1936).
The third component of the Bureau's case was that even though every state now had marihuana legislation, local authorities could not cope with the marihuana menace. To support this proposition editorial pleas from the Washington newspapers were offered along with Bureau testimony that officials of several states had requested federal help.
Senator Brown asked Commissioner Anslinger "to make clear the need for Federal legislation." He continued:
You say the states have asked you to do that. I presume it is because of the freedom of interstate traffic that the states require the legislation.
[W]e have had requests from the states to step in because they claimed it was not
growing in that state, but that it was coming in from another state (U.S. Congress,
Nothing was presented to support that statement; no letters from local authorities and no investigative reports by FBN agents describing the trafficking apparatus.
The congressmen and senators participating in the hearings accepted the Bureau's
argument. In fact, Senator Brown, Chairman of the subcommittee which considered the
legislation in the Senate, and Chairman Doughton of the Ways and Means Committee, had been
thoroughly briefed by the Bureau in advance of the hearings. There was no probing of the
Government witnesses. In fact, the Government made its case in the House in one session,
and the next three sessions were devoted to countering the technical objections of the
oilseed, birdseed, and hemp industries (U.S. Congress, 1937:59-65 67-86 .
On the last morning of scheduled hearings, Dr. William C. Woodward appeared on behalf of the AMA to oppose the bill. Dr. Woodward objected to H.R. 6385 because he believed that its ultimate effect would be to so restrict medical use by red tape that any medical use would be impossible. He admitted that there were currently few therapeutic applications but he observed that the bill inhibited further research which might bear fruit. He went even further to imply that the bill was designed with this objective in mind. He noted that if federal legislation was considered necessary, it could be achieved without sacrificing medical usage by simply amending the Harrison Act.
Dr. Woodward's most pointed attack was directed against the assumption that federal legislation was needed to control the marihuana habit. He argued that existing state legislation was more than sufficient if properly enforced and that if lack of coordination was the problem, that was the FBN's fault.
Noting that the FBN already had the authority to "arrange for the exchange of
information concerning the use and abuse of narcotic drugs in [the] states and for
cooperation in the institution and prosecution of suits . . .," he asserted that the
Bureau had not done its job:
If there is at the present time any weakness in our state laws relating to cannabis
or to marihuana, a fair share of the blame, if not all of it, rests on the Secretary of
the Treasury and his assistants who have had this duty imposed upon them for 6 and more
years (U.S. Congress, 1937: 93).
Dr. Woodward also contended that the law would be a useless expense to the medical profession and unenforcible. He noted: "Since marihuana grows so freely, and every landowner was a potential producer, whether wittingly or unwittingly, full enforcement would require inspection of the entire land area of the country, a task which would be unseemly for the Federal Government to undertake" (U.S. Congress, 1937: 94-95).
Finally, Dr. Woodward wondered why, if federal legislation was considered necessary, the Congress did not simply amend the Harrison Act. To the Bureau's argument that such a course would be unconstitutional, he inquired how Treasury's counsel could argue that the present bill was constitutional since the technique was identical. Dr. Woodward's own view was that the amendment of the Harrison Act would be constitutional and that such a course would dispel the professional objections which he raised (U.S. Congress, 1937:97).
After accusing Dr. Woodward of obstructionism, evasiveness, and bad faith, the Committee did not even thank him for his testimony (U.S. Congress, 1937: 121). When the Senate Finance Committee conducted hearings on the bill, now styled H.R. 6906, two months later, Dr. Woodward submitted instead a short letter which stated the AMA's reasons for opposing the bill (U.S. Congress, 1937: 33-34).
Both Committees reported the bill favorably despite Woodward's objections. The Ways and
Means Report stated:
Under the influence of this drug the will is destroyed and all power of directing
and controlling thought is lost. Inhibitions are released. As a result of these effects,
it appeared from testimony produced at the hearings that many violent crimes have been and
are being committed by persons under the influence of the drug Not only is marihuana used
by hardened criminals to steel them to commit violent crimes, but it is also being placed
in the hands of high-school children in the form of marihuana cigarettes by unscrupulous
peddlers. Cases were cited at the hearings of school children who have been driven to
crime and insanity through the use of the drug. Its continued use results many times in
impotency and insanity (U.S. Congress, 1937: 1-2).
The Marihuana Tax Act passed the House of Representatives very late in the afternoon of
a long session on June 14, 1937; the only opposition came from congressmen who had no idea
what marihuana was and desired further information before voting (Congressional Record,
1937: 5575, 5689). Instead of a detailed analysis they received a statement of one of the
members of the Ways and Means Committee, which repeated uncritically the lurid criminal
acts attributed to marihuana users at the hearings. After less than two pages of debate,
the Act passed without a roll call (Congressional Record, 1937: 5575).
TIGHTENING THE LAW
After the passage of the Marihuana Tax Act, the FBN began with a four-pronged
The scope of the plant's growth, the transportability of the seeds, the dormancy of the seeds, and the lack of a highly efficient herbicide militated against a comprehensive eradication program. The cost of such a program would have been substantial even if success were assured. No active effort was undertaken to conduct an acre-by-acre survey of the United States.
The eradication "program" became simply a matter of reaction to routine information-letters from farmers who had identified the plant and discoveries of acreage by law enforcement agents.
As the Bureau's interest in marihuana subsided during the 1940's, so did the effort to eradicate the wild growth. In fact, the Federal Government encouraged the cultivation of hemp during the war, even though an inactive strain had not been developed, because sources of sisal rope had been severed by Japan's occupation of the Philippines. All over the United States, the weed remained plentiful and largely undetected.
After passage of the Act, Commissioner Anslinger directed his agents to discourage
local officials from playing up any alleged involvement of marihuana with crime to the
press. On April 11, 1938, the Commissioner told his New York District Supervisor that:
Our present policy is to discourage undue emphasis on marihuana for the reason that
in some sections of the country recently press reports have been so exaggerated that
interest in the subject has become almost hysterical and we are therefore trying to mold
public opinion along more conservative and saner lines (Anslinger, April 11, 1938).
Immediately following passage of the Act, the FBN also directed an "educational" effort toward the federal judiciary to emphasize the need for severe sentences for marihuana offenders. The Bureau also concentrated on the stifling of suppliers, large interstate traffickers, and smugglers. Small possession cases were to be left to local authorities.
Several factors, however, served to frustrate this policy. First, marihuana traffic was highly disorganized and there was no national or regional network as such (New York City, 1945). Second, use was still concentrated geographically and socioeconomically and was not a major enterprise. Finally, during the war years, the Bureau abandoned responsibility for most marihuana law enforcement to the states, where the disorganized traffic and regional use could be most effectively controlled. The FBN chose instead to concentrate on the opiates.
After the relative quiet of the war years there was apparently a significant increase
in narcotic drug abuse in the late, 1940's and the public began to be concerned with the
spread of narcotic addiction, particularly among young persons. Congressional furor was
aroused by the assertion that the use of marihuana inevitably led to the use of these
harder drugs, particularly heroin.
The new legislation came in two waves. In 1951, Congress passed the Boggs Act (Boggs Act, November 2, 1951: 767) which increased penalties for all drug violators. For the first time in federal drug legislation marihuana and the narcotic drugs were lumped together, since the Act provided uniform penalties for the Narcotic Drugs Import and Export Act (Boggs Act, November 2, 1951: 767) and the Marihuana Tax Act (21 USC 1964). The states followed the federal lead. Then, in 1956, Congress passed the Narcotic Control Act, escalating the penalties still further. Once again the states responded in kind.
The hearings before the Subcommittee of the House Ways and Means Committee and the floor debate indicate that the Boggs Act was motivated by a. perceived increase in narcotic use in the period 1948 to 1951 (Kefauver Committee Hearings, 1951: 240-241; New York Times, 1951).
Representative Boggs, speaking during the Congressional debate on his bill, enunciated
a concern which was reflected in many other quarters. After noting that there had been a
24% increase in arrests for narcotic violations between 1949 and 1950 and a 70% increase
between 1948 and 1950, Representative Boggs stated:
The most shocking part about these figures is the fact that there has been an
alarming increase in drug addiction among younger persons. In the first six months of
1946, the average age of addicted persons committed . . . at Lexington, Kentucky, was 37.5
years. Only three patients were under the age of 21. During the first six months of 1950,
only four years later, the average had dropped to 26.7 years and 766 patients were under
the age of 21... (Congressional Record, 1951: 8197).
Representative Boggs and others supported the mandatory minimum sentences for drug peddlers because they felt that some federal judges had been lax in enforcing the narcotic laws (Congressional Record, 1951: 8197, 8207, 821 1). Public opinion was overwhelming that harsh sentences, including the death penalty for peddling narcotics to minors, would strangle the drug monster then stalking the American youth (Kefauver Committee Hearings, 1951: 430-431).
The Boggs Act was directed in large part at the federal judiciary since a key provision removed judicial discretion in sentencing by providing that upon conviction for a second or subsequent offense the imposition or execution of the sentence could not be suspended nor probation granted.
There had been no concerted lobbying effort by the judicial community during the legislative process; however, James V. Bennett, Director of the U.S. Bureau of Prisons, aroused the judges in the Fifth U.S. Circuit District into eventually recommending the amendment of the law to remove provisions for mandatory minimum sentences (Yew Orleans Statesman, May 28, 1954; New Orleans Times-Picayune, May 28, 1954).
Even while the Boggs Act was still pending in Congress, the Bureau of Narcotics encouraged the states to modify their existing narcotic and marihuana legislation to enact "penalties similar to those provided in the Boggs Bill [which] would be of material assistance in the fight against the narcotic traffic" (Federal Bureau of Narcotics, 1950: 6).
Seventeen states and the territory of Alaska responded by passing "little Boggs Acts" by 1953 and 11 other states increased their penalties by 1956. Two of the latter group, Ohio and Louisiana, enacted penalty provisions which were substantially more severe than those passed previously in any jurisdiction (Federal Bureau of Narcotics, 1956: 28).
The Ohio law, approved June 16,1955, provided a 20 to 40 year sentence for the sale of narcotic drugs. The Louisiana measure, adopted the following year, provided severe prison sentences without parole, probation, or suspension for the illegal sale, possession, or administration of a narcotic drug. The sentences ranged from a five-year minimum to a 99-year maximum (Federal Bureau of Narcotics, 1951: 8).
Underlying the inclusion of marihuana in the scheme of increased penalties was the
progression theory. In the Boggs hearings many witnesses testified to the link between
marihuana use and ultimate heroin addiction. Commissioner Anslinger, for example,
The danger is this: Over 50 percent of these young addicts started on marihuana
smoking. They started there and graduated to heroin; they took the needle when the thrill
of marihuana was gone (Boggs Act Hearings, 1951: 206).
Representative Boggs himself summed up the stepping-stone thesis in House floor debate:
Our younger people usually start on the road which leads to drug addiction by
smoking marihuana. They then graduate into narcotic drugs-cocaine, morphine, and heroin.
When these younger persons become addicted to the drugs, heroin, for example, which costs
from $8 to $15 per day, they very often must embark on careers of crime ... and
prostitution ... in order to buy the supply which they need (Congressional Record,
The stepping-stone theory thus supplanted the older hypotheses which had linked marihuana to addiction, insanity and violent crime.
In a paper filed as an exhibit to the hearings on the Boggs Act, Dr. Harris Isbell, Director of Research at the Public Health Service Hospital in Lexington, Kentucky, stated that marihuana was not physically addictive, although he paid lip service to the psychological dependence hypothesis (Boggs Act Hearings, 1951: 147-148).
Acknowledging the possibility of "temporary psychosis" in "predisposed individuals," Isbell otherwise disputed the crime and insanity thesis. Before the Kefauver Committee in the Senate he testified that:
[M]arihuana smokers generally are mildly intoxicated, giggle, laugh, bother no one, and have a good time. They do not stagger or fall, and ordinarily will not attempt to harm anyone.
It has not been proved that smoking marihuana leads to crimes of violence or to
crimes of a sexual nature. Smoking marihuana has no unpleasant after-effects, no
dependence is developed on the drug, and the practice can easily be stopped at any time.
In fact, it is probably easier to stop smoking marihuana cigarettes than tobacco
cigarettes (Kefauver Committee Hearings, 1951: 119).
Some observers felt that the narcotics problem had disappeared almost entirely from the national scene after the Boggs Act was passed. Nevertheless, state and federal law enforcement authorities, armed with data suggesting that the strengthening of the drug laws had at least halted the increase in drug use, pressed for further increases in penalties in order to root out the drug menace entirely (Federal Bureau of Narcotics. 1956: 28). Without extended debate or widened public interest, Congress passed the Narcotic Control Drug Act in 1956 (Daniel Committee Hearings, 1955: 57).
There was less attention paid to marihuana during Congressional debate in 1956 than had been the case in 1951. But, the established precedent of classifying marihuana with hard narcotics continued and resulted in a proliferation of marihuana offenses and a, further increase in penalties based on the theory that the end of the American narcotics experience could thereby be assured.
However, efficacy of still higher penalties was not uniformly accepted among law enforcement officials; the Deputy Commissioner of the FBN suggested that more severe penalties might press grand juries not to indict and the petty juries not to convict in drug cases. Others rejected this view and felt strongly that more severe penalties were imperative if society was to be rid of its present peddlers and if new entrants into the narcotics business were to be deterred (Good, July 31, 1954).
Among congressmen considering the Bill, there was no dissent from the proposition that harsher penalties were the means to eliminate the illicit use and sale of all drugs (Congressional Record. 1956: 10689).
In addition to facilitating enforcement of narcotics laws through a number of ancillary
provisions, the Narcotics Control Act of 1956 established the following penalties:
|First offense||2 years|
|Second offense||5 years|
|Third and subsequent offense||10 years|
|First offense||5 years|
|Second offense||10 years|
|Sale to minor by adult||10 years|
Parole or probation were made unavailable to all except first offenders in the possession category (26 TTSC, 1964).
The Act also created a new offense by prohibiting illegal importation of marihuana. Simple possession was by statute sufficient to convict the possessor of knowingly receiving illegally imported marihuana (21 USC, 1964).
Few legislators recognized that marihuana was in any way different from the physically addictive narcotics. The House Subcommittee on Narcotics, which produced what became the essentials of the 1956 Act, had inserted a footnote to the major heading "Narcotics" which stated in fine print that the term narcotics included marihuana (U.S. Code Cong. and Ad. News, 1956: 3294). Only once during the Congressional debates on the House and Senate versions of the Bill was the subject of marihuana as a separate substance even raised.
Moreover, in a statement reflecting the general acceptance of the stepping-stone
concept, Senator Daniel, Chairman of the Senate Subcommittee that investigated the drug
problem, described marihuana:
That is a drug which starts most addicts In the use of drugs, Marihuana, in itself a
dangerous drug, can lead to some of the worst crimes committed by those who are addicted
to the habit. Evidently, its use leads to the heroin habit and then to the final
destruction of the persons addicted (U.S. Code Cong. & Ad. News, 1956: 3294).
By the fifties, marihuana had been fully integrated into the narcotics legislation of
every state in the Union and of the national government. Possession of the drug, even for
one's own use, was a felony everywhere, and the user was subject to long periods of
incarceration as punishment for his indulgence.
1960-1970: NEW LEGISLATIVE APPROACH
From the mid-fifties to the mid-sixties, federal activity in marihuana and narcotic law enforcement was relatively stable. The number of offenders apprehended and convicted in both areas remained constant (U.S. Courts, 1956-1964).
However, in the early and mid-sixties a new phenomenon was occurring. Drug abuse began to spread. It no longer confined itself to the ghettos and certain socioeconomic and ethnic groups; the new users were the sons and daughters of the middle class. It began striking home at the average American and became a national, major issue of concern (Rosevear, 1967: 117-131; U.S. Bureau of Narcotics, 1966: 40).
The new middle class use of marihuana induced significant medical inquiry into the
nature of the drug and spurred a new legislative approach. One commentator stated:
Nobody cared when it was a ghetto problem. Marihuana-well, it was used by jazz
musicians or the lower class, so you didn't care if they got 2 to 20 years. But when a
nice, middle-class girl or boy in college gets busted for the same thing, then the whole
community sits up and takes notice. And that's the name of the game today. The problem has
begun to come home to roost-in all strata of society, in suburbia, in middle-class homes,
in the colleges. Suddenly, the punitive, vindictive approach was touching all classes of
society. And now the most exciting thing that's really happening is the change in attitude
by the people. Now we have a willingness to examine the problem as to whether it's an
experimentation, or an illness rather than 'an evil' (New York Times, Feb. 5, 1970:
Congress initially acted by passage of the Drug Abuse Control Amendments of 1965 (Public Law 89-74,1965). This legislation established a Bureau of Drug Abuse Control within the Food and Drug Administration and created criminal, misdemeanor penalties for the illegal manufacture and sale of depressant and stimulant drugs and hallucinogens.
The dramatic increase in the use of marihuana and other drugs during the latter 1960's was a matter of high public visibility. In response, President Johnson offered Reorganization Plan No. 1 of 1968 (H. Doe. No. 249,1968). This reorganization was effective on April 8, 1968 and placed the Federal Bureau of Narcotics (of Treasury) and the Bureau of Drug Abuse Control (of FDA) in the Department of Justice and designated it the Bureau of Narcotics and Dangerous Drugs.
What had been obvious with the passage of the 1965 Drug Amendments became glaring with this reorganization, that is, the tremendous disparity in penalties for violations involving dangerous drugs as opposed to narcotics and marihuana. As a result of increased medical and scientific inquiry, LSD and several other drugs 'were acknowledged as being more powerful hallucinogens than marihuana.
To compound the disparity, tetrahydrocannabinol (THC), the major active ingredient in marihuana, was placed under controls whereby someone in unauthorized possession of THC was subject to no penalty, but someone in possession of marihuana was subject to a minimum mandatory penalty of two years imprisonment (Federal Register, 1968: 14880). Congress then changed the possession penalty, tinder the Drug Abuse Control Amendments, to a misdemeanor and increased the penalties for sale or manufacture of LSD and the other controlled drugs to up to five years (Public Law 90-639, 1968).
Nevertheless, a great disparity regarding penalties for these substances still existed. The atmosphere for change was ripe. Adding pressure to the situation was the criminalization of increasing numbers of young persons whose sole crime was possession of marihuana for their own use.
In late 1968, the newly formed Bureau of Narcotics and Dangerous Drugs drafted legislation which would nationalize control of the drugs under the Bureau's jurisdiction. The proposed law vested on the commerce clause rather than on the taxing powers.
The change in authority was prophetic because the Leary decision, which was handed down by the Supreme Court on May 19, 1969, held that the order form procedure necessary to meet the requirements of the Marihuana Tax Laws, forced an individual to incriminate himself in violation of the Fifth Amendment (Leary v. U.S., 1969). Ostensibly, this decision left BNDD with no marihuana possession law and was another factor in evidence of the need for a revision of the law.
This new bill , H.R. 13742, covered the regulation of narcotic drugs, "dangerous drugs" and marihuana. It was transmitted by President Nixon on July 14, 1969.
Emerging from this legislation was an overall balanced scheme of criminal penalties. Minimum mandatory offenses were essentially abolished and the offense of possession of a controlled substance for one's own use was made a misdemeanor. Further, in first-offense, simple possession cases, the court was given the discretion to place a defendant on probation, for up to one year. If, at the end of the probation period, the defendant bad not violated any of the conditions of the probation, his conviction could be expunged.
The same misdemeanor penalty and opportunity for first offender treatment was provided for the distribution of a small amount of marihuana for either: (1) no remuneration; or (2) the cost of the drug.
This provision was included in recognition of the large number of such transactions which take place among youth and in recognition of a phenomenon which surfaced as a substantial challenge to the traditional picture of the national marihuana trade. Legislators had formerly stereotyped the "seller" as the vicious criminal pushing his wares for high profit and felt that extraordinarily harsh penalties were justified for sellers (Narcotics Legislation Hearings, 1969: 4).
But several studies showed that the structure of marihuana traffic bore little or no relation to the traditional stereotype. One survey of 204 users found that 44% had sold to friends at least once. Many casual users sold to leave themselves enough profit to cover the amount of their own use (Goode, 1969: 7). Under the new Act, they would not be punished as distributors.
The new legislation also made a distinction between marihuana and narcotic drugs.
Marihuana was placed in a category with hallucinogenic drugs and their difference from
narcotics was emphasized by the difference in penalties as follows:
|Marihuana and other non-narcotic controlled substances||Narcotics|
|lst offense||2nd offense||lst offense||2nd offense|
|Unlawful distribution, possession with intent to distribute, manufacture, importation or exportation:|
* Distribution of small amounts of marihuana for no remuneration is treated the same as
The bill was passed by Congress (and signed into law by President Nixon) on October 27, 1970, as the Comprehensive Drug Abuse Prevention and Control Act of 1970.
In conjunction with this new federal law, a uniform state act was drafted by the National Conference of Commissioners on Uniform State Laws and approved by them as the Uniform Controlled Substances Act at their annual conference August 1-7, 1970.
The following statement in the preface of the Act explains its purpose:
This Uniform Act was drafted to achieve uniformity between the laws of the several states and those of the Federal Government. it has been designed to complement the new federal narcotic and dangerous drug legislation and Provide and interlocking trellis of Federal and state law to enable government at all levels to control more effectively the drug abuse problem.
The Uniform Act does not recommend penalties except with respect to possession for one's own use. For such offenses, the Conference recommended that it be treated as a misdemeanor.
To date, 26 states and three territories have adopted the Act in its entirety or in a varied form. Currently, 10 to 15 states are considering it.
The most recent chapter in the legal history of marihuana appears in other pages of
this Appendix. The appointment of the National Commission on Marihuana and Drug Abuse and
the issuance of its Report are themselves significant events from an historical point of
Act of June 14,1930, Ch. 488,46 Stat. 585.
Act to Create a Bureau of Customs and a Bureau of Prohibition in the Department of the Treasury, Ch. 348, 44 Stat. 1381 (1927).
Anslinger, H. J., letter to Dr. Woodward (July 28,1930).
"The Reason for Uniform State Narcotic Legislation," Georgetown Law Journal, 21: 52 (1932).
letter to Judge Deering (August 1, 1932).
letter to Reverend John J. Burke (March 1, 1935). letter to Miss Agnes Regan, Executive
Secretary of the National Council of Catholic Women (March 28, 1935).
letter to Mrs. Roberta Lawson, President of General Federation of Women's Clubs (January 13, 1936).
letter to Frank Allen of the Cleveland Plain Dealer (October 22, 1936).
letter to F. J. Reynolds, Director, Readers Research Bureau, P. F. Collier and Son Corporation (December 23,1936).
letter to Williams (April 11, 1938).
and Cooper, C. R.: "Marihuana: Assassin of Youth," American Magazine, 18-19 (July, 1937).
and Tompkins, W.: The Traffic in Narcotics, New York: Funk and Wagnalls Co. (1953), P. 159.
Austin Texas Statesman (Austin, Texas), June, 1923.
Baskette, Floyd K., letter to Federal Bureau of Narcotics (September 4,1936).
Birmingham Age-Herald (Birmingham, Alabama), August 22, 1935.
Boggs Act, Chapter 666, 65 Stat. 767 (November 2, 1951).
Boggs Act Hearings, "Hearings on H.R. 3490 before the Subcommittee on Narcotics of the House Committee on Ways and Means," 82nd Cong., 1st Sess., 147-148 (1951).
Bromberg, Walter, "Marihuana Intoxication: A Clinical Study of Cannabis Sativa. Intoxication," American Journal of Psychiatry (91) 1934.
Chicago Examiner (Chicago, Illinois), June 19, 1929. June 22,1929.
Chicago Tribune (Chicago, Illinois), June 3, 1929. July 1, 1929. October 17,1929.
Colorado, "Colorado Laws." Chapter 95, 309 (1927).
Congressional Record, 75th Cong., 1st Sess., 5575, 5689-5692 (1937).
82nd Cong., 1st Sess., 8197-8198, 8207, 8211 (1951). 102: 10689 (1956).
Daniel Committee Hearings, "Hearings on Illicit Narcotics Traffic Before the Subcommittee on Improvements In the Federal Criminal Code of the Senate Committee on the Judiciary," 84th Cong., 1st Sess., 57 (1955).
Dowling, Dr., letter to Acting Surgeon General Periz (December 3, 1920).
Federal Bureau of Narcotics,: "The Need for Uniform Narcotic Drug Act-White Paper" (July, 1933).
: "Traffic in Opium and Other Dangerous Drugs," 59 (1937).
"Traffic in Opium," 6 (1950). 8 (1951). 28 (1956).
Federal Register, 33: 14880 (October 4, 1968).
Gomila, F. R. and Lambow, M.C.: Marihuana: America's New Drug Problems, Philadelphia: Lippincott (1938), pp. 29-31.
Good, 0. S., letter to H. J. Anslinger (July 31, 1954). Goode, E.: "The Marihuana Market,": Colum. P., 12: 7 (Winter, 1969).
1925 Handbook of the National Conference of Commissioners on Uniform State Laws and
Proceedings, pp. 977-985 (1925).
1928 pp. 75-78. 323-3-33 (1928).
1929 pp. 43, 332--340 (1929).
1930 pp. 97, 126-427, 485 (1930).
1931 pp. 127-128, 390-402 (1931).
1932 P. 107 (1932).
House Document No. 249, Transmitted to 90th Cong., 1st Sess. (February, 1968).
House Report No. 91-1444 (Part 1) 91st Cong., 2d Sess. (September 10, 1970).
Idaho, "Idaho State Laws," p. 98 (1927).
Jones, letter in U.S. Surgeon General's files to R. P. Smith (August 21, 1920).
Kefauver Committee Hearings, "Hearings Before the Special Senate Committee to Investigate Organized Crime in Interstate Commerce," 82d Cong., Ist Sess., pt. 14, exhibit 1, 119,240-241, 430-431 (1951).
King: "The Narcotic Bureau and the Harrison Act," Yale Law Journal, 62: 736, 737-739 (1953).
Leary v. United States, 395 U.S., 6, 89 S. Ct. 1532 (1969).
Lindesmith, A. R.: The Addict and the Law, Bloomington: Indiana University Press (1967), pp, 135-161.
Los Angeles Daily News (Los Angeles, California), June 18, 1951.
Montana, "Montana Laws," Chapter 6, p. 5 (1929).
Montana Standard (Butte-Anaconda, Montana), January 22, 1929, p. 3, col. 6.
Narcotics Legislation Hearings, "Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary," 91st Cong., 1st Sess., 267, 4 (1969).
New Mexico, "New Mexico Laws," Chapter 42, Sections 1-2, pp. 58-59 (1923).
New Orleans Statesman (New Orleans, Louisiana), May 28, 1954.
New Orleans Times-Picayune (New Orleans, Louisiana), May 28,1954.
New York, "New York Laws," Chapter 363, p. 1695 (1927). New York City Mayor's Committee on Marihuana: The Marihuana Problem in the City of New York, Lancaster: Jacques Cattell. Press (1945), p. 12.
New York State Senate: "Joint Legislative Committee to Investigate the Laws In
Relation to the Distribution and Sale of Narcotic Drugs," Final Report, Doe. No. 35
(1918), as quoted by Terry & Pellens, The Opium Problem (1928), p. 834.
New York Times (New York, New York), July 30, 1914, pp. 6,8, col. 12.
January 11, 1923, p. 24, col. 1.
September 16,1934, p. 6, col. 3.
June 19,1951, p. 25, col, 1.
February 5,1970, p. 14.
Nutt, Colonel L. C., Deputy Commissioner, Bureau of Prohibition, letter to Walter Clephane, Chairman, Section on Social Welfare, Conference of Commissioners on Uniform State Laws (June 13, 1929).
Paul, A. E., Memorandum from Chief, Chicago Station,
Food, Drug and Insecticide Administration, U.S. Department of Agriculture, to Chief, Central District, pp. 1, 4 (June 27, 1929).
Public Law 89-74, H.R. 2 (July 15, 1965).
Public Law 90-639, H.R. 14096 (October 24, 1968).
"Report of Preliminary Conference on Fifth Tentative. Draft of the Uniform State Narcotic Law," pp. 9-10, 23 (September, 1932).
Rocky Mountain News (Denver, Colorado), September 27, 1931.
Rosevear, J.: Pot: A Handbook of Marihuana, New Hyde Park: University Book (1967), pp. 117-131.
San Antonio Light (San Antonio, Texas), May 4, 1931, editorial.
Santa Fe New Mexican (Santa Fe, New Mexico), January 31, 1923.
Saratogian (Saratoga, New York), September 9, 1936, P. 5.
Schaller, Michael: "The Federal Prohibition of Marihuana," Journal of Social History, 4: pp. 61-78 (1970). Schmeckebler: "The Bureau of Prohibition," in Brookings Institute for Government Research Service Monograph (57) :143 (1929).
Siler, J. S., et al., "Marihuana Smoking in Panama," Military Surgeon, 73: 269-280 (1933).
Tennyson, A. L.: "Consideration of a Uniform State Narcotic Law by the National Conference of Commissioners of Uniform State Laws at Atlantic City, New Jersey, September 9-12, 1931," memorandum for file dated September 16,1931.
_: "Uniform State Narcotic Law," Federal Bureau Association Journal 1: 55 (1932).
Terry, C. and Pellens, M.: The Opium Problem (1928), p. 834.
Texas, "General Laws," Chapter 150, p. 278 (1919).
Texas, "Special Session Laws," Chapter 61, pp. 156-157 (1923).
U.S. Bureau of Immigration: "Commissioner General of Immigration Annual Report" (1915-1930).
U.S. Bureau of Narcotics: "Traffic in Opium," 2: 40 (1966).
21 U.S. -Code, 174 (1964).
26 U.S. Code, 4741-4776, 7237 (1964).
U.S. Code Cong. and Ad. News, 3294 (1956).
U.S. Congress, "Hearings Before the House Committee on Ways and Means on H.R.
6385," 75th Cong., 1st Sess., Washington (1937), 6, 30, 32-37, 59-65, 67-86, 92,
-, "Hearings Before the Senate Finance Committee on H.R. 6906," 75th Cong.,
1st Sess., Washington (1937), 16, 33-34.
"Report of the Committee on Ways and Means on H.R. 6385," 75th Cong., Ist
Sess., Washington (1937), 1-2.
U.S. Courts, "Disposition of Defendants Charged with the Violation of Narcotic
Drug Laws," Administrative Office, Division of Information Systems (1956-1964).
Washington Post (Washington, D.C.), September 29,1934.
White, Dr. William, letter to Surgeon General Treadway (August 3, 1932).
Women',, Christian Temperance Union: Marihuana, Evanston: WCTU Publishing House (1928), pp. 1, 3.
"Union Signal" (Evanston, Illinois), 1936, p. 285.
January 30, 1937, pp. 36, 75.
(yearly bound volumes).
Wood, Will S., letter to Mrs. Roberta Lawson, President of General Federation of Women's Clubs (January 13, 1936).
Woodward, William, letter to Dr. S. L. Hilton (August 6, 1932).
World Narcotic Defense Association, letter to legislators (February,1937).
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Marihuana, A Signal of Misunderstanding