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The Forbidden Fruit and the Tree of Knowledge
THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION
Richard J. Bonnie & Charles H. Whitebread, II
III. THE GENESIS OF MARIJUANA PROHIBITION
Until the inclusion of marijuana in the Uniform Narcotic Drug Act in 1932 and the passage of the Marihuana Tax Act in 1937, there was no "national" public policy regarding the drug. However, as early as 1914 the New York City Sanitary Laws included cannabis in a prohibited drug list and in 1915 Utah passed the first state statute prohibiting sale or possession of the drug. By 1931 twenty-two states had enacted such legislation. In the succeeding section, we shall delve into the circumstances surrounding the passage of several of these early laws and the ensuing judicial acquiescence in the legislative value judgments concerning marijuana. We conclude that the legislative action and approval were essentially kneejerk responses uninformed by scientific study or public debate and colored instead by racial bias and sensationalistic myths.
A. Initial State Legislation 1914-1931
As indicated above, the Harrison Act, a regulatory measure in the garb of a taxing statute, left many gaps unfilled in the effort to prohibit illegal or nonmedical use of opiates and cocaine. Although Commissioner Anslinger of the Federal Bureau of Narcotics stated in 1932 that few states had responded to the Harrison Act,1 most states had in fact enacted or reenacted narcotics laws in the period from 1914 to 1931.2 In so doing, twenty-one states had also restricted the sale of marijuana as part of their general narcotics articles, one state had prohibited its use for any purpose, and four states had outlawed its cultivation.3 Our objective in this section is to determine why these states chose to include cannabis in their lists of prohibited drugs.
The first consideration was the increasing public awareness of the narcotics problem. As noted above, the Harrison Act engendered a shift in public perception of the narcotics addict. With ever-increasing frequency and venom, he was portrayed in the public media as the criminal "dope fiend." This hysteria, coupled with the actual increases in drug-related criminal conduct due to the closing of the clinics,4 was the basis for a good many of the post-Harrison Act narcotic statutes.5 Other forces such as lurid accounts in the media,6 publications of private narcotics associations 7 and the effective separation of the addict and his problems from the medical profession8 all pressed legislatures into action to deal more effectively with what was perceived as a growing narcotics problem.
Despite the increasing public interest in the narcotics problem during this period, we can find no evidence of public concern for, or understanding of, marijuana, even in those states that banned it along with the opiates and cocaine. Observers in the middle and late 1930's agreed that marijuana was at that time a very new phenomenon on the national scene.9 The perplexing question remains-why did some states include marijuana in their prohibitive legislation a decade before it achieved any notice whatsoever from the general public and the overwhelming majority of legislators?
From a survey of contemporary newspaper and periodical commentary we have concluded that there were three major influences. The most prominent was racial prejudice. During this period, marijuana legislation was generally a regional phenomenon present in the southern and western states. Use of the drug was primarily limited to Mexican-Americans who were immigrating in increased numbers to those states. These movements were well noted in the press accounts of passage of marijuana legislation. A second factor was the assumption that marijuana, which was presumed to be an addictive drug, would be utilized as a substitute for narcotics and alcohol then prohibited by national policy. This factor was particularly significant in the New York law, the forerunner of nationwide anti-marijuana legislation. Finally, there is some evidence that coverage of the drug by the Geneva Conventions in 1925 was publicized in this country and may have had some influence.
1. Rationale in the West: Class Legislation
Geometric increases in Mexican immigration after the turn of the century naturally resulted in the formation of sizeable Mexican-American minorities in each western state.10 It was thought then11 and is generally assumed now12 that use of marijuana west of the Mississippi was limited primarily to the Mexican segment of the population. We do not find it surprising, therefore, that sixteen of these states prohibited sale or possession of marijuana before 1930.13 Whether motivated by outright prejudice or simple discriminatory disinterest, the result was the same in each legislature-little if any public attention, no debate, pointed references to the drug's Mexican origins, and sometimes vociferous allusion to the criminal conduct inevitably generated when Mexicans ate "the killer weed."
In Utah, for example, the nation's first statewide prohibition of marijuana 14 in 1915 was attended by little publicity. The combination of increasing Mexican immigration15 and the traditional aversion of the Mormons to euphoriants of any kind16 led inevitably to the inclusion of marijuana in the state's omnibus narcotics and pharmacy bill. Similarly, when the New Mexico and Texas legislatures passed marijuana legislation in 1923, the former by separate statute17 and the latter by inclusion,18 newspaper reference was minimal despite coverage in both states of legislative action.19 The longest of the Santa Fe New Mexican references noted:
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 cigarets anytime he had a dollar. The drug produces intoxication when chewed or smoked. Marihuana is the name commonly used in the Southwest and Mexico.20
In its only direct reference to marijuana, the Austin Texas Statesman stated:
The McMillan Senate Bill amended the anti-narcotic law so as to make unlawful the possession for the purpose of sale of any marihuana or other drugs. Marihuana is a Mexican herb and is said to be sold on the Texas-Mexican border .21
The discriminatory aspects of this early marijuana legislation, suggested only obliquely by origin and apparent disinterest in Utah, New Mexico and Texas, are directly confirmed in Montana and Colorado. Montana newspapers gave relatively "full" coverage to a proposal to exclude marijuana from the general narcotics law and to create a separate marijuana statute.22 On seven different days from January 14 to February 10, 1929 (the date of the bill's passage), the Montana Standard succinctly noted the progress of the bill through the legislature. The giveaway appeared on January 27 when the paper recorded the following:
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 Marijuana. The Silver Bow and Yellowstone delegations both deplore these international complications" Everybody laughed and the bill was recommended for passage.23
The same year, a change in Colorado's marijuana law was precipitated by less comic apprehensions of the drug's evil effects. On April 7, 1929, a girl was murdered by her Mexican step-father. The story was lead news in the Denver Post every day until April 16, probably because the girl's mother was white. On the 16th it was first mentioned that this man might have been a marijuana user. Headlined "Fiend Slayer Caught in Nebraska [;] Mexican Confesses Torture of American Baby," and subheaded "Prisoner Admits to Officer He is Marihuana Addict," the story, relates in full the underlying events:
"You smoke marihuana?"
The Mexican said he had been without the weed for two days before the killing of his step-daughter .24
On April 17, the story on the Mexican included the following:
He repeated the story he had told the Sidney Chief of Police regarding his addiction to marihuana saying that his supply of the weed had become exhausted several days before the killing and his nerves were unstrung.25
With regard to the legislative news there is no mention at any time of a bill to regulate marijuana; however, on April 21, the Denver Post noted the Governor had signed a bill increasing penalties for sale, possession or production of marijuana.26
The reader should note that public perception of marijuana's ethnic origins and crime-producing tendencies often went hand in hand, especially in the more volatile areas of the western states. Stories such as the one appearing in the Denver Post, where defendants charged with violent crimes attempted to blame their actions on the effects of marijuana were primarily responsible for the drug's characterization as a "killer weed." In any event, from this brief survey of marijuana prohibition in the western states, we have concluded that its Mexican use pattern was ordinarily enough to warrant its prohibition, and that whatever attention such legislative action received was attended by sensationalist descriptions of crimes allegedly committed by Mexican marijuana users.
2. Rationale in the East: Substitution
The first significant27 instance of marijuana regulation appeared in the 1914 amendments to the New York City Sanitary Laws. The inclusion by the New York legislature of marijuana in Its general narcotics statute in 1927 was the precursor of nationwide legislation .28 For these reasons, we have chosen New York as the most likely source of information regarding the. rationale for marijuana prohibition in Maine, Massachusetts, Michigan, Ohio, Rhode Island and Vermont, all of which had acted before 1931.29
In January 1914 the New York legislature passed its first comprehensive statute-The Boylan Bill-regulating the sale and use of habit forming drugs"' and did not include marijuana among its list of prohibited narcotics. It appears that the Board of Health of New York City then amended its Sanitary Code adding "Cannabis indica, which is the Indian hemp from which the East Indian drug called hashish is manufactured,"31 to the City's list of prohibited drugs. Violation of this provision of the City Sanitary Code was a misdemeanor punishable by a small fine and/or a jail term of up to six months. On July 29, 1914, an article reporting the amendment appeared in the New York Times wherein the drug was described:
This narcotic has practically the same effect as morphine and cocaine, but it was not used in this country to any extent while it was easy to get the more refined narcotics.32
The next day the editors of the Times commented:
[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.33
From these observations, it would appear (1) that there were few marijuana users at the time; and (2) that use of the drug was expected to increase as a direct result of the restriction of opiates and cocaine.
Despite New York City's early classification of cannabis with known narcotics, New York State did not prohibit sale and possession of the drug for other than medicinal purposes until 1927.34 And this was true despite a great deal of activity on the narcotics front from 1914 to 1927, when the legislature acted four different times.35 Throughout all this tumult and in the variety of narcotics proposals suggested or enacted,36 marijuana or cannabis was not classified among the restricted drugs until the drafting of the 1927 Act. This act37 defined cannabis as a "habit-forming drug," 38 and accordingly punished as misdemeanors39 the control, sale, distribution, administration and dispensing40 of cannabis except for medical purposes. The penalty provision of the statute did not discriminate among types of offenses, first or subsequent violations, or the prohibited narcotic drugs.41
There is no apparent indication in the contemporary commentary of the reasons for inclusion of marijuana in the New York laws. When the 1927 law was passed, public concern was focused on the general need to reduce narcotic addiction; none of the commentators were concerned about marijuana.42 While there were numerous articles in the media dealing with the problems of the opiates, morphine, cocaine and heroin, only four articles about marijuana appeared in the major New York newspaper during the entire period from 1914 until 1927. In 1923 the New York Times noted that the "latest habit forming drug ... marihuana, which is smoked in a cigarette" was exhibited at a women's club meeting.43 In 1925 the same paper reported that the drug had been banned in Mexico.44 One year later, the paper reported the results of testing in Panama on the effects of marijuana. The article noted that as a result of these tests the study group concluded marijuana smoking was relatively safe; thus, it was "recommended that no steps be taken by the authorities of the Canal Zone to prevent the sale or use of marijuana and that no special legislation on that subject was needed." 45 Finally, in July 1927, the Times reported that a Mexican family was said to have gone insane from eating marijuana.46 Perhaps the clearest indication of the absence of notice given the marijuana section of the 1927 Act is that none of the articles discussing the Act after its passage refer to marijuana .47
It is likely, then, that the inclusion of cannabis in the state law was motivated primarily by the same fear that had provoked the Sanitary Law Amendment in 1914. Use, though still slight, was expected to increase. Throughout the entire New York experience the main argument was preventive: Marijuana use must be prohibited to keep addicts from switching to it as a substitute for the drugs which had become much more difficult to obtain after the enactment of the Harrison Act, and for alcohol after Prohibition.48 Accordingly, the passage of the Harrison and Volstead Acts were direct causes of the preventive inclusion of marijuana among prohibited drugs. In fact, it has been observed that marijuana use did increase during this period .49
Another factor that may have influenced the passage of the 1927 Act was the Second Opium Conference at Geneva in 1925,50 which included Indian hemp within the Convention against Opium and other Dangerous Drugs, even though the United States had withdrawn in 1925 from the League of Nations deliberations on controlling and regulating the international traffic in dangerous drugs.51
3. The International Scene
The first mention of marijuana on the international front came with the preliminary negotiations for the Hague Conference of 1912. In preparing for this Conference, which represented an attempt to deal with the international opium traffic, the government of Italy proposed that the production and traffic in Indian hemp drugs be included as part of the agenda of the Conference.52 During the Conference itself, there was no mention of the drug, and the Convention did not include cannabis in its provisions. In addition to the Convention, however, the delegates signed a closing protocol:
2. The Conference considers it desirable to study the question of Indian hemp from the statistical and scientific point of view, with the object of regulating its abuses, should the necessity thereof be felt, by internal legislation or by an international agreement .53
It was not until just before the Geneva Conference of 1925 that the proposal was mentioned again. In 1923 the following resolution was passed by the Advisory Committee on Traffic in Opium and Other Dangerous Drugs of the League of Nations:
IV. With reference to the proposal of the Government of the Union of South Africa that Indian hemp should be treated as one of the habit-forming drugs, the Advisory Committee recommends the Council that, in the first instance, the Governments should be invited to furnish to the League information as to the production and use of, and traffic in, this substance in their territories, together with their observations on the proposal of the Government of the Union of South Africa .54
At the 1925 meeting in Geneva, the Egyptians led the way in proposing that hashish be included within the Convention.55 An Egyptian delegate presented a paper on the effects and use of hashish in Egypt. Mr. El Guindy's study is so typical of the so-called scientific or empirical evidence that has been presented to justify the drug's prohibition that the following excerpt must be included. In stating that the real danger of hashish is that it will produce insanity, the Egyptian delegate presented the following:
The illicit use of hashish is the principal cause of most of the cases of insanity occurring in Egypt. In support of this contention, it may be observed that there are three times as many cases of mental alienation among men as among women, and it is an established fact that men are much more addicted to hashish than women.56
The Egyptian proposal was referred to a subcommittee for study and later in the Conference this group reported that the use of Indian hemp drugs should be limited to medical and scientific purposes. The proceedings contain no record of what medical or scientific evidence might have been brought forward to support the inclusion of the Indian hemp drugs in the Convention.57 Nevertheless, they were the subject of Chapters IV and V of the Convention.58
The early laws against the cannabis drugs were passed with little public attention. Concern about marijuana was related primarily to the fear that marijuana use would spread, even among whites, as a substitute for the opiates and alcohol made more difficult to obtain by federal legislation. Especially in the western states, this concern was identifiable with the growth of the Mexican-American minority. It is clear that no state undertook any empirical or scientific study of the effects of the drug. Instead they relied on lurid and often unfounded accounts of marijuana's dangers as presented in what little newspaper coverage the drug received. It was simply assumed that cannabis was addictive and would have engendered the same evil effects as opium and cocaine. Apparently, legislators in these states found it easy and uncontroversial to prohibit use of a drug they had never seen or used and which was associated with ethnic minorities and the lower class.
B. Judicial Corroboration
Two significant conclusions appear from a study of the few cases59 involving convictions for marijuana offenses under the initial wave of state laws. First, the argument regarding a private conduct limitation on the police power had been so discredited it was not even made. Second, the courts, like the legislatures, relied on nonscientific materials to support the proposition that marijuana was an addictive, mind-destroying drug productive of crime and insanity.
In only one case was there a serious constitutional challenge to the validity of the legislation. Appealing a Louisiana conviction for possession of five hundred plants of marijuana, the defendant in State v. Bonoa60 argued not that the state could not punish mere possession but rather that the statute was overbroad, since aside from its use as an intoxicant the marijuana plant was employed in the manufacture of hemp line, in the preparation of useful drugs and for the production of bird seed for canaries. Defendant's contention was that only possession, sale or use for deleterious purposes could be prohibited.
The court's reply was that the drug's deleterious properties outweighed its uses, especially since " [t]he Marijuana plant is not one of the crops of this state." 61 Defendant also offered the reductio ad absurdum argument that if possession of the marijuana plant may be prohibited simply because intoxicating resin may be extracted from the flowering tops, then the possession of corn or grapes may be prohibited because whiskey and wine may be made from them, or possession of poppies because opium may be extracted from them. To this the court replied that alcohol was less injurious than marijuana and that both alcohol and opium were difficult to prepare from these sources while the marijuana plant was easily converted into tobacco and cigarettes.
The court's reasoning is admirable if we accept the basic premise that the marijuana drug is deleterious. To support this conclusion the court quoted from Solis Cohen Githens' Pharmacotheraupeutics:
The first symptom is usually an exaltation of the mind . . . . The ideas are joyous Sleep follows . . . . When aroused from sleep . . . the mind passes into the same somnolent condition, which lasts for several hours and is followed by a sense of weakness and extreme mental depression. In certain eastern people . . . perhaps because of continued use, the somnolent action is replaced by complete loss of judgment and restraint such as is seen more often from alcohol. An Arab leader, fighting against the crusaders, had a bodyguard who partook of haschisch, and used to rush madly on their enemies, slaying everyone they met. The name of "haschischin" applied to them has survived as "assassin."
The habitual use of cannabis does not lead to much tolerance, nor do abstinence symptoms follow its withdrawal. It causes, however, a loss of mentality, resembling dementia, which can be recognized even in dogs.62
The court also quotes Rusby, Bliss & Ballard, The Properties and Uses of Drugs:
The particular narcosis of cannabis consists in the liberation of the imagination from all restraint . . . . Not rarely, in [the depression] state, an irresistible impulse to the commission of criminal acts will be experienced. Occasionally an entire group of men under the influence of this drug will rush out to engage in violent or bloody deeds.63
On these two sources, the entire opinion stands. The allegedly deleterious consequences-criminal activity and insanity-are supported only by the mythical etymology of the word "assassin." The marijuana user's purported propensity toward crime, based on similar and often weaker authority, was the primary rationale underlying passage of the Marihuana Tax Act.64 So preposterous is this assertion that even the proponents of criminalization-including the Cormmissioner of the Bureau of Narcotics-later implicitly rejected it.65
In any event, the courts were as willing to accept such evidence as the legislatures. In a Utah case, State v. Navaro,66 where the court cited the acknowledged evils of marijuana to repel a vagueness attack,67 it relied on another set of dubious authorities. First, the court referred to the case of State v. Diaz68 wherein a defendant in a first degree murder prosecution tried to disprove the requisite mens rea by showing that he was under the influence of marijuana at the time of the offense. Diaz had claimed that "his mind was an entire blank as to all that happened to him and stated that after smoking the marijuana he became 'very crazy.' To corroborate his assertion, defendant summoned a physician whose testimony was summarized in Diaz in a passage quoted in full in Navaro:
He stated that [marijuana] is a narcotic and acts upon the central nervous system affecting the brain, producing exhilarating effects and causing one to do things which he otherwise would not do and especially induces acts of violence; that violence is one of the symptoms of an excessive use of marijuana. That the marihuana produces an "I don't care" effect. A man having used liquor and marihuana might deliberately plan a robbery and killing and carry it out and escape, and then later fail to remember anything that had occurred. 70
Thus an attempt in an adversary setting by an accused to escape criminal responsibility by blaming his offense on marijuana intoxication became medical authority for the scientific hypothesis that marijuana use causes crime.
The second source of support in Navaro for the allegedly deleterious effects of marijuana was a 1932 article by Hayes and Bowery (the latter a member of the Wichita, Kansas, Police Department) entitled Marihuana .71 Calling for stricter penalties for marijuana use, the authors stated that during the exhilaration phase, the user is likely to have increased sexual desires72 and to commit "actions of uncontrollable violence, or even murder." 73 For these propositions, they cited newspaper accounts of crimes the causes of which the reporter attributed to marijuana74 and police testimony to the same effect.75 For example, the Chief Detective of the Los Angeles Police Department was quoted as saying:
In the past we have had officers of this department shot and killed by Marihuana addicts and have traced the act of murder directly to the influence of Marihuana, with no other motive. Numerous assaults have been made upon officers and citizens with intent to kill by Marihuana addicts which were directly traceable to the influence of Marihuana.76
It should be noted that Hayes and Bowery attributed the violent impulse to the absence of restraint engendered during the so-called exhilaration phase, while each of the authorities cited by the Louisiana court in Bonoa attributed the same impulse to the sufferings experienced during the "depression" phase.77
The authors also asserted that habitual use leads to a "loss of mental activity, accompanied by a general dullness and indolence, like that of chronic alcoholics or opium caters," to "destruction of brain tissues" and inevitably to insanity. For this proposition, the authors merely said that "seventeen to twenty per cent of all males admitted to mental hospitals and asylums in India have become insane through the use of this drug."78
Finally the court cited an article by Eugene Stanley, the District Attorney of New Orleans, entitled Marihuana as a Developer of Crimiinals.79 The title conveys the message. We will return to Mr. Stanley in the succeeding section.80
The nonchalance with which Utah and Louisiana courts cited sensationalistic,
nonscientific sources to support the proposition that marijuana produced crime and
insanity suggests how widely accepted this hypothesis was among decision-makers, both
judicial and legislative, prior to 1931. Given the prevalence of this attitude, the
noninvolvement of the middle class, and the precedent established in the earlier alcohol
and narcotics cases, it is not surprising that constitutional challenges were either not
made or easily rebuffed. Nor is it surprising that challenges regarding the ambiguity of
the word "marijuana" were unsuccessful.81 The courts, like the legislatures,
assumed marijuana caused crime and insanity, and assumed that had public opinion
crystallized on the question, it would have favored the suppression of a drug with such
1 Anslinger, The Reason for Uniform State Narcotic Legislation, 21 GEO. L.J. 52, 53 (1932).
2 STATE Laws 35-327.
3 Id. at 14.
4 For a discussion of the change in the public image of addicts and the closing of clinical experiments, see p. 988 supra.
5 See TERRY & PELLENS 877-919.
6 See, eg., text at notes 24-25 infra. For somewhat more clinical discussions, see TERRY & PELLENS 877-919.
7 See Weber, Drugs and Crime, 10 J. CRIM. L. & CRIMINOLOGY 370 (1919).
8 A. LINDESMITH, THE ADDICT AND THE LAW 3-3S (1965); King, Narcotic Drug Laws and Enforcement Policies, 22 LAW & CONTEMP. PROB. 113, 120-26 (1957).
9 Hearing on H.R. 6385 Before the House Comm. on Ways and Means, 75th Cong, 1st Sess. 20 (1937) [hereinafter cited as Tax Act Hearings].
10 The Bureau of Immigration recorded the entry of 590,765 Mexicans into the United States between 1915 and 1930. Of these, upwards of 90% in each year were to be resident in the 22 states west of the Mississippi, and more than two-thirds were to reside in Texas alone. Information compiled from Tables, Immigrant Aliens, By States of Intended Future Residence and Race or Peoples, published yearly for each fiscal year from 1915 to 1930 in COMM'R GEN. OF IMMIGRATION ANN. REP.
11 Tax Act Hearings 20, 3 3.
12 THE MARIHUANA PAPERs at xiv (D. Solomon ed. 1966). 13 Id. at xv.
14 At its 1915 session, the Utah legislature passed an omnibus narcotics and pharmacy bill which included under it the cannabis drugs. Ch. 66, §§ 7, 8,  Utah Laws 77. The law forbade sale and possession of the named drugs, and provided for medical use under a system of prescriptions and order blanks. Interestingly, clinical treatment of addicts was allowed. Id. at 77-80. The law also prohibited possession of opium and marijuana pipes. Id. at 80. Violations were misdemeanors punishable by fines and/or imprisonment for terms up to six months, but third offenders faced prison terms from one to five years. The statute made no distinction between sale and possession, nor among the various drugs. The law was revised in 1927. Ch. 65, 1 Utah Laws 107.
15 See note 10 supra.
16 See THE DOCTRINE AND COVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, CONTAINING THE REVELATIONS GIVEN TO JOSEPH SMITH, THE PROPHET § 89, at 154 (192 1) (PP, P 5, 7, wine or strong drink) (P 8, tobacco) (P 9, hot drinks) (revelations given through Joseph Smith the Prophet, at Kirtland, Ohio, February, 27, 1833, known as the Word of Wisdom).
17 The statute made importation of cannabis illegal and established a presumption of importation whenever a person was found to possess the drug. Ch. 42, § § 1-2,  N.M. Laws 58-59. Violations were punishable by fine and/or imprisonment from one to three years. Cultivation, sale or giving away cannabis except for use by physicians and pharmacists was also prohibited, and violations were punishable on first offense by one to three years in prison and on subsequent offenses by three to five years imprisonment. Id. §§ 3, 4.
18 The Texas general narcotics statute, ch. 150,  Tex. Gen. Laws 277-79, as amended, ch. 61,  Tex. Special Sess. Laws 156-57, similar in format to the Utah statute and the Harrison Act, included "any drug or preparation known or sold under the Spanish name of 'Marihuana........... Id. at 278. Unlike the Utah and New Mexico statutes, Texas prohibited only selling, furnishing or giving away marijuana. Except for the exempted medical purposes, such divestment of any of the listed narcotics could have resulted in a fine and/or imprisonment from one month to one year. Id. at 279.
19 The Santa Fe New Mexican, hometown paper of the bill's sponsor, made only one mention of marijuana at the time of passage, and that was to note that the drug was being smuggled into the state prisons. Santa Fe New Mexican, Feb. 1, 1923.
The Austin Texas Statesman gave heavy coverage to legislative news at this time because the legislature was in special session called by the Governor to deal with a budgetary problem.
20 Santa Fe New Mexican, Jan. 31, 1923. The statute was passed on February 27, 1923; during the period from January 20 to February 28, there were only three other references to marijuana. The newspaper first noted the bill in a one sentence report that a ban on sale of marijuana was to be discussed. Id., Jan. 20, 1923. Finally, in articles entitled "A Day In The Legislature," the progress of the bill (H.B. 56) was noted on February 21 and 27 in simple lists of bills enacted. Id., Feb. 21, 27, 1923. So inconsequential was the bill that it was not even mentioned in two stories describing the activities of the legislature for that session. Id., Feb. 27, 1923, at 1, col. 1.
21 Austin Texas Statesman, June 19, 1923. Despite heavy coverage of legislative news and of narcotics generally, the El Paso Times made no reference to marijuana between June 10 and June 25. The Texas Statesman mentioned the "McMillan Bill" only two other times, each time without direct reference to marijuana.
22 Unlike most states that passed laws early in the 1920's against marijuana use, Montana in 1927 passed a statute which merely amended the first section of its general narcotic law, Rev. Code of Mont. ch. 227, S 3186 (1921), to include marijuana. Ch. 91, § 1, [ 1927] Mont. Laws 324. The new law, ch. 6,  Mont. Laws 5, made use, sale or possession without a prescription a misdemeanor.
23 The Montana Standard, Jan. 27, 1929, at 3, col. 2. 24 Denver Post, April 16, 1929, at 2, col. 1.
25 Id., April 17,1929, at 2, col. 1.
26 Id., April 21, 1929. Ch. 95, (1927] Colo. Laws 309, penalized possession, sale, gift, or cultivation of any of the cannabis drugs as a misdemeanor. Offenses carried a fine and/or imprisonment in the county jail for not less than one or more than six months. The new law, ch. 93,  Colo. Laws 331, increased the penalties for second offenders to one to five year terms in the penitentiary.
27 Although Commissioner Anslinger stated in the 1937 Tax Act Hearings that the District of Columbia had no law regulating marijuana, Dr. Woodward of the AMA refuted the Commissioner's statement by citing a 1906 provision which limited the sale of cannabis to pharmacists and regulated sale of the drug by such pharmacists to the public. Tax Act Hearings 92-93. The D.C. provision, Act of May 7, 1906, ch. 2084, § 13, 34 Star. 175, is typical of early attempts to deal with the drug under the general poison laws, but it is noteworthy in its treatment of marijuana separately from opiates.
28 See pp. 10 30-3 3 infra.
29 In 1913, Maine prohibited the sale of cannabis indica without a prescription. STATE LAWS 137. Massachusetts passed a similar law in 1917, id. at 150, and Michigan forbade possession in 1929, id. at 161. A 1923 Ohio law prohibited sale or possession with intent to sell, id. at 242; Rhode Island prohibited sale in 1918, id. at 263; and Vermont barred sale without a prescription in 1915, id. at 296.
31 Ch. 363,  N.Y. Laws 1120. The first narcotics legislation in New York was enacted in 1893. Ch. 661, art. XII, §208, 11893] N.Y. Laws 1561. The 1893 law provided that no prescription containing opium, morphine, cocaine or chloral could be filled more than once. Two years later, the legislature enacted a provision requiring that the effect of narcotics on the human system be taught in the public schools. Ch. 1041, §1, [18951 N.Y. Laws 972. In 1897, a law was passed making it a felony to possess any narcotic "with intent to administer the same or cause the same to be administered to another" without his consent. Ch. 42, § 1,  N.Y. Laws 21. The first provision aimed at the sale of narcotics was passed in 1907 and provided that the sale or distribution of cocaine without a prescription was unlawful. Ch. 424, @ 1, [ 1907] N.Y. Laws 879. This provision was subsequently amended to provide for the keeping of records of sales and of transactions between dealers. Ch. 470, § 2,  N.Y. Laws 984; ch. 131, § 1,  N.Y. Laws 231; ch. 277, § 1,  N.Y. Laws 764.
31 N.Y. Times, July 29, 1914, at 6, col. 2.
33 Id., July 30, 1914, at 8, col. 4.
34 Ch. 672,  N.Y. Laws 1695-1703.
35 The 1914 act was amended by the Whitney Act in 1918 which also provided for the repeal of the 1914 act. Ch. 639,  N.Y. Laws 2026. In 1921 an act was passed that in effect repealed all the legislation relating to the narcotics problem. Ch. 708,  N.Y. Laws 2496. The measure made no provision for other laws on the subject. This surprising move was made in the interests of economy, N.Y. Times, Jan. 6, 1921, at 1, col. 8, and with the belief that the drug problem could be better handled by local authorities working in concert with federal agencies. See id., Jan. 9, 1921, S 2, at 1, col. 7; id., May 22, 1921, S 2, at 11, col. 3, An act making illegal the sale of cocaine without a prescription was enacted in 1923. Ch. 130,  N.Y. Laws 160. The possession of opium or cocaine without a prescription was outlawed in 1926. Ch. 650, § 2,  N.Y. Laws 1198.
36 As late as 1918, a legislative committee that had exhaustively studied the narcotics problem in New York did not mention the use of marijuana and concluded: "The drugs which are the sources of the difficulty are cocaine and eucaine with their salts and derivatives and opium and its derivatives, codeine, morphine and heroin." JOINT LEGISLATIVE COMM. TO INVESTIGATE THE LAWS IN RELATION TO THE DISTRIBUTION AND SALE OF NARCOTIC DRUGS, FINAL REPORT, NEW YORK SENATE Doc. No. 35 (1918). quoted in TERRY & PELLENs 833.
37 The Act of April 5, 1927, repealed both the 1923 and 1926 laws and replaced them with a comprehensive narcotic control scheme. Ch. 672,  N.Y. Laws 1695. This act contained provisions relating to the control and use of narcotic drugs and treatment of addicts; it also exempted certain preparations from its coverage. The act furnished the model for the Uniform Narcotic Drug Act. See pp. 1030-31 infra.
Subsequently, in 1929, unlawful sale of narcotics was made a felony and all other violations of the 1927 act were made misdemeanors. Ch. 377, [19291 N.Y. Laws 881.
38 Ch. 672, S 421(14), [ 1927] N.Y. Laws 1697.
39 Id. S 443, at 1702,
40 Id. 5 423, at 1697.
41 See id. § 443, at 1702.
42 See N.Y. Times, Mar. 25, 1927, at 4, col. 6.
43 Id., Jan. 11, 1923, at 24, col. 1.
44 Id., Dec. 29, 1925, at 10, col. 7.
45 Id., Nov. 21, 1926, § 2, at 3, col. 1.
46 Id., July 6, 1927, at 10, col. 6.
47 See id., Mar. 25, 1927, at 4, col. 6; id., April 6, 1927, at 13, col. 2.
48 See Simon, From Opium to Hasheesh, Sci Am., Nov. 1921, at 14-15. See also N.Y. Times, Jan. 11, 1923, at 24, col. 1. A similar argument was made with respect to cocaine:
Cocaine in particular is greatly in demand. When prohibition is in force, persons, especially drinkers from compulsion of habit who have been robbed of their daily drink, will naturally resort to cocaine . . . .
Weber, supra note 7, at 372.
49 B. RENBORG, INTERNATIONAL DRUG CONTROL 216 (1947):
As the campaign against the illicit traffic in opium, morphine, and cocaine drugs made progress and gradually resulted in diminution of the supplies on the illicit market, a marked increase in the illicit traffic and the use of Indian hemp drugs was noticed. more particularly on the North American Continent (the problem of marihuana) and in Egypt (the hashish problem).
50 See Second Geneva Opium Conference, Convention, Protocol and Final Act, quoted in W. WILLOUGHBY, OPIUM AS AN INTERNATIONAL PROBLEM 534-70 (1925).
51 Id. at 344-46.
52 Wright, The International Opium Conference, 6 Am. J. INT'L L. 865, 871 (1912).
53 Addendum and Final Protocol of The international Opium Conf., The Hague, 1912, quoted in W. WILLOUGHBY, supra note 50, at 492.
54 ADVISORY Comm. ON TRAFFIC in OPIUM AND OTHER DANGEROUS DRUGs, REPORT To COUNCIL ON THE WORK OF THE SIXTH SESSION (1924), quoted in W. WILLOUGHBY, supra note 50, at 374.
55 See W. WILLOUGHBY, supra note 50, at 2 SI.
56 Quoted in id. at 378. Mr. El Guindy concludes by saying: "Generally speaking, the proportion of cases of insanity caused by the use of hashish varies from 3 to 60 percent of the total number of cases occurring in Egypt." Id. at 379.
57 There are no records of these subcommittee hearings, so we can only surmise that the quality of the evidence might have been about as bad as that presented in the floor report of the Egyptian delegation.
58 Geneva Convention of 1925, quoted in W.WILLOUGHBY, supra note 50, at 539. Moreover, the Convention defines Indian hemp as follows:
"Indian hemp" means the dried flowering or fruiting tops of the pistillate plant Cannabis sativa L. from which the resin has not been extracted, under whatever name they may be designated in commerce.
Id. at 535
59 In an extensive surveyof cases appearing in the Fourth Decennial Digest for the years 1926 to 1936, we could find only eight cases dealing with marijuana under laws enacted prior to the Uniform Narcotic Drug Act. In chronological order: Gonzales v. State, 108 Tex. Crim. 253, 299 S.W.. 901 (1927); State v. Franco, 76 Utah 202, 289 P. 100 (1930); State v. Bonoa, 172 La. 955, 136 So. 15 (1931); Santos v. State, 122 Tex. Crim. 69, 53 S.W.2d 609 (1932); Baker v. State, 123 Tex. Crim. 209, 58 S.W.2d 534 (1933); Horton v. State, 123 Tex. Crim. 237, 58 S.W.2d 833 (1933); State v. Navaro, 83 Utah 6, 26 P.2d 955 (1933); People v. Torres, 5 Cal. App. 2d 580, 43 P.2d 374 (Dist. Ct. App. 1935).
60 172 La. 955, 136 So. 15 (1931).
61 Id. at 964, 136 So. at 18.
62 id. at 961-62, 136 So. at 17-18.
63 id. at 962-63, 136 So. at 18.
64 See pp 1055-57 infra.
65 See pp. 1072 infra.
66 see Utah 6, 26 P.2d 955 (1933)
67 Appellant, convicted on an information charging "possession of marijuana," contended that the statue prohibited only possession of the flowering tops and leaves of the marijuana plant. The court held that marijuana was the popular name for the drug, not just the plant, and that the information accordingly charged an offense. For this proposition, it cited dictionaries, other state statutes, articles, cases and texts. It is the court's familiarity with the articles describing the allegedly evil effects of the drug with which we are concerned.
68 76 Utah 463, 290 P. 727 (1930).
69 Id. at 469, 290 P. at 729
70 83 Utah at 12, 26 P.2d at 957, quoting 76 Utah at 469-470, 290 P. at 729
71 Hayes & Bowery, Marihuana, 23 J. CRim. L. & CRIMINOLOGY 1086 (1932).
72 Id. at 1087, 1089.
73 Id. at 1088.
74 Id. at 1093.
75 Id. at 1088, 1090-91.
76 Id. at 1088 (emphasis added).
77 Compare text at note 72 supra with text at notes 62-63 supra. 78 Hayes & Bowery, supra note 71, at 1090.
79 Stanley, Marihuana as a Developer of Criminals, 2 Am. J. Police Sci. 252 (1931),cited in State v Navaro, 83 Utah 6, 14-15, 26 P.2d 955, 958 (1933).
80 See p. 1044 infra.
81 E.g., State v. Navaro, 83 Utah 6, 15, 26 P2d 955, 959 (1933); State v. Bonoa, 172
La. 955, 959, 136 So. 15, 17 (1931 ). The Texas court was somewhat stricter in a series of
cases charging simply sale or possession of "narcotic drugs" without specifying
marijuana. On the same day, the court reversed convictions in Baker v. State, 123 Tex.
Crim. 209. 58 S.W.2d 534 (1933) (possession); Baker v. State, 123 Tex. Crim. 212, 58
S.W.2d 535 (1933) (sale or possession); and Horton v. State, 123, Tex. Crim. 237, 58
S.W.2d 833, (1933) (possession). On the other hand the Court held that an indictment
charging "possession of marijuana" is sufficient even though it does not allege
that marijuana is a narcotic drug. Santos v. State 122 Tex. Crim. 69, 53 S.W.2d 609
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