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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
VI. THE 1950's: HARSHER PENALTIES AND A NEW RATIONALE-THE "STEPPING STONE" THEORY
The 1950's witnessed the advent of an extremist legislative policy with respect to drugs generally and marijuana in particular. For the first time in our national history, there was public interest in narcotic drugs. Apparently there had been an increase in narcotic drug abuse in the late 40's, and the public mind was ripe for the FBN propaganda. In the paranoid atmosphere of the times, the call for harsher penalties was soothing. Unfortunately, marijuana was caught in the turbulence of this era. Although the pharmacological facts about the drug were beginning to emerge, congressional furor was aroused by the novel assertion, rejected by Commissioner Anslinger in 1937, that use of marijuana led to use of harder drugs. This new plateau of misinformation was to provide the base for continual escalation of penalties and proliferation of offenses throughout the decade.
A. The Boggs Act and Its Progeny: The First Escalation
In 1951 Congress passed the next major piece of federal narcotics legislation-the Boggs Act .2 The importance of this legislation is that provided much harsher penalties for all drug violators. Also, for the first time on the federal level, marijuana and other narcotics were lumped together as a result of the Act's provision for uniform penalties for violators of either the Narcotic Drugs Import and Export Act3 or the Marihuana Tax Act.4 This indiscriminate treatment of marijuana as just another narcotic drug flew in the face of contemporary testimony challenging the assumption that the hemp drugs were addictive, crime-producing, and likely to lead to insanity and death. New testimony that marijuana was unlikely to be addictive was buried under the new rationale for harsh penalties against offenders of the marijuana laws-that the drug inevitably is the stepping stone to heroin addiction. Eventually, the states followed the federal lead in striking out against drug violators with the same mindless fervor that characterized their anti-communist campaigns.
1. The Problem: Increased Narcotics Use
The hearings before the Subcommittee of the House Ways and Means Committee and the floor debate show that the primary reason for passage of the Boggs Act was the increase in narcotic use in the period 1948-1951. Testimony and evidence from a wide variety of sources indicated an abrupt and substantial increase in addiction, especially among teenagers, between 1947 and 1951.5 Young people under 21 who had rarely been addicts suddenly became a predominant group involved in addiction and narcotics crimes.6 Representative Boggs, speaking during the congressional debates on his bill, enunciated a concern which was reflected in many other quarters. After noting that there had been a 24 percent increase in arrests for narcotics violations between 1949 and 1950 and a 77 percent 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- 6 months of 1946, the average age of addicted persons committed . . . at Lexington, Ky. was 37.5 years. Only 3 patients were under the age of 21. During the first 6 months of 1950, only 4 years later, the average had dropped to 26.7 years, and 766 patients were under the age of 21.... [I]n New York City alone it has been estimated that 1 out of every 200 teenagers is now addicted to some type of narcotics.7
Later he said, "We need only to recall what we have read in the papers in the past week to realize that more and more younger people are falling into the clutches of unscrupulous dope peddlers . . . ." 8
Representative Boggs then proceeded to insert in the record eleven newspaper and magazine articles dated between May 2 and July 16, 1951.9 The Washington Evening Star of July 16 (the day of the debate) carried a story on the results of a mayor's committee report on drug addiction in New York City. According to the newspaper, "between 45,000 and 90,000 persons in New York City are using illicit dope.... Based on the city's population of 7,835,099, that would be 1 out of every 87 or 1 out of 174 persons." The paper indicated that the report showed an increase in addiction among teenagers, and it called for "more severe penalties for dope sellers, and for wholesale revisions of Federal and State penal statutes relating to sale."
An article in Time magazine of June 25, 1951, inserted by Mr. Boggs, related New York City School Superintendent William Jansen's statement that one out of every 200 high school students in the city was a user of habit forming drugs. The article went on to describe the alarming increases in dope consumption" in other major cities and the ease with which school children obtained narcotics. Another article, in the Washington Evening Star of June 12, 1951, contained statements by a member of the staff of the Attorney General of New York to the effect that between 5,000 and 15,000 of New York City's 300,000 high school students were drug addicts. To supplement the stock figures, these articles included the testimony of witnesses who described their own acts of prostitution and thievery, the loss of educational opportunities, the death of addicts from "hot shots," the horrors of withdrawal, and a wide variety of other aspects of drug abuse.
This evidence of increasing use of narcotics, especially among the young, and the fear that narcotics use would continue to spread, presented a problem that Congress felt needed a quick and effective solution.
2. The Solution: Harsher Penalties
In the same way that the congressional hearings, investigations and debates reflect the impetus for enactment of the Boggs Act, they also reveal the official and public consensus as to the solution-harsher penalties. Perhaps Commissioner Anslinger best described the prevailing climate when he stated:
Short sentences do not deter. In districts where we get good sentences the traffic does not flourish....
There should be a minimum sentence for the second offense. The commercialized transaction, the peddler, the smuggler, those who traffic in narcotics, on the second offense if there were a minimum sentence of 5 years without probation or parole, I think it would just about dry up the traffic.10
This statement before the Committee was quoted by Representative Boggs during the congressional debate on his bill, along with the Kefauver Committee's recommendation that "mandatory penalties of imprisonment of at least 5 years should be provided for second offenders." 11 Representative Boggs indicated that his bill was to incorporate the Kefauver Committee recommendations of mandatory minimum sentences for drug peddlers and had as its principal purpose ... to remove the power of suspension of sentence and probation in the cases of second and subsequent offenders against the narcotics and marijuana laws, and to provide minimum sentences .... 12
Moreover, Representative Boggs and others supported the mandatory minimum sentences because they felt some federal had been lax in enforcing the narcotic laws 13 and because they believed harsher penalties had reduced crimes, particularly kidnapping and the white slave trade, in other areas.14 Representative Edwin Arthur Hall of New York urged substitution of his bill, which provided for minimum sentences of 100 years for dope peddlers.15 Although there was some opposition to the Boggs Act, notably by Representative Celler, who thought that the mandatory minimum sentence provision would be unjust for addicts,16 the majority opinion was clearly that mandatory minimum sentences were necessary to insure punishment of peddlers.17 In response to Mr. Celler's contention that young addicts could be subjected to long prison terms because of the loss of judicial discretion in sentencing, Representative Jenkins stated:
The enforcing officers will always have sympathy for the unfortunate consumer, especially if he is harmless. These enforcing officers are going to protect the little boys and little girls. They are not going to drag the high school boys and girls before the criminal courts until they know that they are collaborating with the peddlers18
Mr. Boggs presented a more reasonable justification for mandatory minimums:
[I]t is not the intention of this legislation to affect a teen-ager or any such person who has possession of narcotics. But the gentleman also knows that if we try to make a distinction between possession and peddling that we immediately open the law to all types of abuses.19
The Act as passed provided uniform penalties for violations of the Narcotic Drugs Import and Export Act and the Marihuana Tax Act. The penalties prescribed were:
First offense 2 - 5 years
Second offense 5 - 10 years
Third and subsequent offenses 10 - 20 years
Fine for all offenses $2,000.00
The relatively low fines reflected a congressional belief that monetary penalties were an insignificant deterrent.20 An essential provision of the Act 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. As in the nontax predecessors of the Boggs Act since 1909 and the Marihuana Tax Act, possession of a narcotic drug was sufficient for conviction unless the defendant could explain the possession to the satisfaction of the jury.21
3. Marijuana and the Boggs Act
Congressional and public attention was clearly focused on hard narcotics use, primarily the opiates. Judging from the recorded proceedings, especially the floor debate in the House, marijuana seems to have been along for the ride, much as it had been during enactment of the Uniform Narcotic Drug Act. However, here there was a conscious decision to include marijuana violations in the new penalty provisions. Underlying this decision were determinations that marijuana use had also increased during the later 1940's, that it too was spreading to white teenagers, and that the drug's dangers, warranted the harsh treatment contemplated by the Act.
(a) Increased Use.-To test the allegation of an increase in marijuana use during this period, we have used the seizure and enforcement figures used by the proponents of the legislation. These figures tend to sustain the hypothesis that marijuana traffic increased from 1948 to 1951, following a decline throughout the early 40's. However, the figures are also consistent with other hypotheses, for example that improved enforcement techniques and increased state-federal cooperation had increased arrests.
Federal agents of the Narcotics Bureau began vigorously enforcing the Marihuana Tax Act almost as soon as President Roosevelt signed it into law. From October 1 to December 31, 1937, alone, the FBN made 369 seizures totaling 229 kilograms of the drug.22
Moreover, state officials made extensive seizures either in conjunction with FBN agents or in pursuance of their newly-passed state controls over marijuana's Marijuana seizures by federal authorities hit their low point in 1945 when only 257 kilograms were taken, 128 of which were seized by the FBN and the rest by United States Customs agents .24 At this time the FBN had approximately 180 agents.25 This low seizure figure suggests a decrease in marijuana use throughout the early 1940 's.26
Beginning in about 1948, however, the arrest and seizure 27 figures rose dramatically, the arrest figures rising 33 percent from 1947 to 1948. These figures tend to corroborate the Commissioner's assertion that there was a drastic increase in narcotics use between 1948 and 1951 28 and to justify the simultaneous calls for amendment of the narcotics and marijuana laws.29 On the other hand, these figures could reflect increased or I improved enforcement. For example, in 1949 the FBN had begun to encourage the largest cities to form special narcotics squads to deal especially with the drug problem.30 By 1951, however, only New York and Los Angeles had formed the separate police detail the FBN had requested .31 Thus even if one were tempted to try to correct for improvements in the law enforcement machinery, the seizure figures for the late 40's and 50's do sustain the notion that the traffic in marijuana increased from 1948 to 1951.
(b) Youthful Users.-As with the hard narcotics, Congress was especially alarmed by the alleged spread of marijuana to white teenagers and school children. Militating against this proposition is evidence that marijuana use was not widespread among the young as late as 1944. In that year, the famous La Guardia Report reached the following conclusions among others: Marijuana use was widespread in the Borough of Manhattan but tended to be limited to certain areas, notably Harlem; the majority of marijuana smokers were Negroes and Latin-Americans, and marijuana smoking was not widespread among school children .32
The La Guardia study portrays marijuana use in this period as a rather casual adjunct to ghetto life. Since it was not costly, this euphoriant was well within the reach of ghetto residents. It appears that throughout the early 40's marihuana use in the West as well as in the East continued to be associated with the ethnic minorities, especially in the inner city.33
The fear that marihuana use would spread to white teenagers is one that has recurred since the earliest legislative cognizance. In fact, it was probably a factor in the early opium laws .34 We have been unable to confirm whether the fear was justified at this time, but in light of the documentation of increased narcotics use among the young, we shall presume the same use patterns to be true of marihuana.
(c) The Danger: A New Rationale.-The FBN had begun its educational campaign for harsher marihuana penalties immediately after passage of the Tax Act." In the early years, the campaign was particularly effective with judges. For example, in one of the first cases under the Tax Act, a Colorado judge stated:
I consider marihuana the worst of all narcotics-far worse than the use of morphine or cocaine. Under its influence men become beasts, just as was the case with [the defendant]. Marihuana destroys life itself. I have no sympathy With those who sell this weed. In the future I will impose the heaviest penalties. The Government is going to enforce this new law to the letter.36
The crime, pauperism and insanity rationale was accepted unquestioningly as late as 1951.37 Under this rationale, harsher penalties were certainly as imperative for marijuana offenders as they were for opiate offenders. However, in a paper filed as an exhibit to the hearings38 on the Boggs Act, Dr. Harris Isbell, Director of Research at the Public Health Service hospital in Lexington, Kentucky, exploded the traditional rationale. He stated that marijuana was not physically addictive.39 Although he postulated a definition of addiction which amounts to nothing more than chronic intoxication 40 and noted the possibility of "temporary psychoses" in "predisposed individuals," Isbell's description of marijuana was extraordinarily favorable. Before the Kefauver Committee he testified:
Marijuana 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 marijuana leads to crimes of violence or to crimes of a sexual nature. Smoking marijuana 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 marijuana cigarettes than tobacco cigarettes.
In predisposed individuals, marijuana may precipitate temporary psychoses and is, therefore, not an innocuous practice with them.41
Dr. Isbell's statements that marijuana does not cause a physical dependence were supported by other doctors, 42 prison officials,43 and perhaps most significantly by the statement of a number of narcotics addicts .44
Despite this testimony the legislators approved greatly increased penalties for marijuana users. The crucial reason for this severe treatment can be seen in the following colloquy during the House subcommittee hearings:
Mr. Boggs. From just what little I saw in that demonstration, I have forgotten the figure Dr. Isbell gave, but my recollection is that only a small percentage of those marijuana cases was anything more than a temporary degree of exhilaration ....
Mr. Anslinger. The danger is this: Over 50 percent of those young addicts started on marijuana smoking. They started there and graduated to heroin; they took the needle when the thrill of marijuana was gone.45
Many others -doctors ,46 crime prevention experts,47 police and narcotics bureau officials48 -testified to the link between marijuana use and ultimate heroin addiction. Representative Boggs himself summed up this novel danger of marijuana in one of the few statements even to mention marijuana in House floor debate:
Our younger people usually start on the road which leads to drug addiction by smoking marijuana. 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.49
The passage of this new Federal Act marked a significant shift in rationale for the illegal status of marijuana; that status became more entrenched by the indiscriminate lumping of marijuana with the other narcotic drugs.
4. The State Response: Mindless Escalation
While the Boggs Act was still pending in Congress, the Bureau of Narcotics encouraged the states to modify their existing narcotic and marijuana legislation to enact "penalties similar to those provided for in the Boggs bill [which] would be of material assistance in the fight against the narcotic traffic." 50 Seventeen states (including Virginia) and the Territory of Alaska responded by passing "little Boggs Acts" by 1953, and eleven other states increased their penalties by 1956.
In 1951, seven states and the Territory of Alaska passed penalty provisions similar to those contained in the Boggs Act.,51 In addition, nine other states amended their drug laws to provide for more severe penalties, but the provisions were neither uniform nor identical to those provided for under the federal measure. 52 In 1952, four more states, including Virginia, amended the penalty provisions of their drug laws to bring them in line with the Boggs Act.53 Six more states followed suit in 1953.54 Finally, in 1955 and 1956 two states, Ohio and Louisiana respectively, enacted penalty provisions which were substantially more severe than those passed previously in any Jurisdiction.55
The Virginia "little Boggs Act" was signed into law on April 1, 1952 ,56 after having passed both houses unanimously.57 The measure was regarded as routine, and as one of the "less controversial" proposals to come before the legislature during the 1952 session.58 It cleared the House on a day when bills were being passed "at the rate of about one a minute during some periods" 59 and won Senate approval during the final rush to complete business in the waning hours of the 1952 General Assembly.
The Act produced three basic changes in Virginia's scheme of narcotics control. It added marijuana to those drugs whose sale was forbidden under the state's version of the Uniform Narcotic Drug Act; it created the new substantive crime of sale to a minor; and it provided for harsher penalties for violations of the drug laws.60
Prior to 1952, the Virginia anti-marijuana provision was separate from those provisions governing the sale of "hard" drugs. But the 1952 Act repealed this provision and included marijuana under the state's general narcotic control law. As a result, a person illegally selling marijuana became subject to the same penalties imposed upon a person legally vending such drugs as heroin, morphine and cocaine .61
The heart of the 1952 Act was the provision for stiffer penalties for the violation of Virginia's general narcotic laws prohibiting the sale of drugs without a prescription. For the first offense, the penalty was imprisonment in the penitentiary for not less than three nor more than five years plus a fine of not more than $1,000. For the second offense, the penalty was imprisonment for not less than five nor more than ten years and a fine of not more than $2,000. For the third and succeeding offenses, the penalties were fines of not more than $3,000 and imprisonment for not less than ten nor more than twenty years.
The 1952 Act also made it a felony to sell, barter, peddle, exchange or otherwise dispense marijuana or any other narcotic drug to a minor. Any person found guilty of such offense was subject to imprisonment for a term of not less than ten years nor more than thirty years, no part of which could be suspended, and a fine of not more than $ 1,000 for the first offense, $2,000 for the second offense and $3,000 for the third and subsequent offenses. Such a provision exemplifies the increased sophistication of anti-narcotic legislation during the 1950's. Thus, the continued escalation of penalties for drug law violators was followed in Virginia. Moreover, despite the public concern and attention in the national media, in Virginia it is plain that the 1952 amendments to the narcotic laws passed virtually unnoticed in the press .62
B. The Late 1950's: Another Escalation of the Penalties
Whether because use had decreased or because the propagandists had accomplished their main mission, the narcotics problem dropped almost entirely from public view after the Boggs Act was passed. Nevertheless, state and federal police 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 entirely to root out the drug menace. 63 Without significant debate or public interest, Congress responded by passing the Narcotic Control Act of 1956 .64
Although the legislators paid even less attention to marijuana than they had in 1951, the precedent there established of classifying marijuana with hard narcotics resulted in a proliferation of marijuana offenses and a further increase in penalties. In some ways, this legislation represents the high-water mark of uninformed public policy regarding marijuana. In almost every respect, the provisions of the Act and the legislative motivation bear absolutely no rational relation to marijuana's pharmacology and to the drug's actual use and traffic patterns.
I. Provisions of the Narcotic Control Act of 1956
Public Law 728, an act intended to make more effective control of the narcotic drugs and marijuana, was approved on July 18, 1956. It amended the Internal Revenue Code of 1954 and the Narcotic Drugs Import and Export ACt65 primarily in the direction of increasing still further the penalties for violation of those acts and proliferating the scope of federal control over the use, possession and sale of narcotic drugs and marijuana.
The new law raised the potential fine for all narcotics and marijuana offenses to $20,000 66 and increased the mandatory minimum sentences for offenses in the prescription, registration and possession categories to two, five and ten years for successive offenses.67 No distinction was made between addicts and traffickers with regard to these types of violations. Violations of the sale, transfer and smuggling provisions of the Act carry a minimum sentence of five years for first offenses and ten years for all subsequent offenses. 68 In this connection the Act created a new offense by prohibiting illegal importation of marijuana and forbidding knowing receipt, concealment, purchase, sale, and facilitation of transportation or concealment of such illegally, imported marijuana .69 Simple possession was by statute sufficient evidence of guilt to convict.70 This provision, now 21 U.S.C. § 176a, paralleled a similar importation provision for narcotics originally passed in 1909.
In addition, any sale or transfer of any drug by an adult to a was made punishable by a minimum ten-year sentence.71 Finally, the Act made suspension, probation and parole unavailable to all offenders except those convicted of a first offense for possession, prescription or registration.72
In addition to the increases in offenses and penalties, the law contained wide variety of provisions relating to enforcement. Customs and Narcotics Bureau agents were authorized to carry weapons and to make arrests without a warrant on belief that a drug violation had been committed .73 The Government was allowed to appeal unfavorable decisions suppressing evidence74 and to compel testimony from witnesses by a grant of immunity.75 In a concession to those legislators who favored a wiretapping provision, the new law created a category of offense based on the use of communications instrumentalities in violation of the drug laws.76 This provision carried penalties of a minimum two-year sentence and up to a $5,000 fine. The Act required that citizens who are drug users and drug law violators must register with the immigration authorities upon entering or leaving the United States .77 The Act also amended the Immigration and Nationality Act to provide for deportation of alien drug users and drug law violators .78
2. Marijuana-Along for the Ride
The Narcotic Control Act of 1956 was premised on the same beliefs as was the Boggs Act. Few if any of the legislators recognized that marijuana was in any way different from the physically addictive narcotics.79 The stepping stone concept was now so widely accepted that only once during the extensive congressional debates on the House and Senate versions of the bill was the subject of marijuana as a separate substance even raised. In a statement reflecting both ignorance of the basic characteristics of marijuana and naive acceptance of the stepping stone concept, Senator Daniel, Chairman of the Senate subcommittee that investigated the drug problem, described marijuana:
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.80
Because Congress bought the FBN's propaganda lock, stock and barrel, it is not surprising that there was no dissent from the proposition that harsher penalties were the means to eliminate illicit use and sale of all drugs.81
3. Trafficking Patterns
The 1956 Act reflected an unsupported conception of the nature of the marijuana traffic. Under the assumption that "peddlers" of all drugs, marijuana included, are controlled by organized crime, the Act assessed extremely heavy penalties for sale, especially to minors. For example, the House Ways and Means Committee report noted that "narcotic traffickers ... are in most cases well organized professional racketeers." 82 Similarly, in recommending prohibition of probation or suspension of sentence for first-offender peddlers, the House subcommittee had asserted that if the first offender peddler problem was not solved, there would eventually be "large scale recruiting of our youth by the upper echelon of traffickers." 83
While the reference to organized crime was undoubtedly valid with respect to hard drugs, the assumption that marijuana traffic was controlled by large-scale racketeers was completely unsupported. The marijuana distribution pattern today is far different than the distribution pattern for "hard" drugs. On college campuses today, the marijuana seller is likely to be a smoker who has a small amount he wants to sell. Unless one is to believe that organized crime has abdicated a distribution role to "amateurs," it is difficult to imagine that it controlled the distribution of marijuana in 1956. Accordingly, the 1956 Act's widely divergent treatment of sale and use of marijuana may not have been justified at the time of enactment, and it certainly makes little sense today.
4. Origin and Use
A related misconception about the marijuana trade concerns the new importation offenses. Underlying the presumption of knowing concealment of smuggled marijuana arising from possession are two findings that the mainstay of marijuana traffic is imported from Mexico and that possessors are likely to be aware of that fact. Even in 1956, such findings were dubious.84 As to the presumption of importation, Commissioner Anslinger's estimate that 90 percent of all marijuana seized by federal authorities had been smuggled from Mexico85 was grossly misleading. The Federal Bureau of Narcotics had practically abandoned the responsibility for marijuana control to increasingly effective state narcotics squads and to the Customs agents.86 Of course, federal figures taken alone would suggest a high percentage of importation. Furthermore, the Commissioner's conclusion was inconsistent with an essential premise of the Tax Act87 and with other materials before the Congress,88 all of which emphasized the large degree of domestic cultivation.
As to the possessor's knowledge, the underlying assumption again was that there was an organized trade pattern so that each user knew where his drug came from. As we know, marijuana was then a casual adjunct to ghetto life. It was a social, rather than an economic, phenomenon limited almost exclusively to unemployed or menially employed members of racial minorities in the center cities.89 As applied to such a class of people, the presumption is farcical.90
5. Enforcement Patterns
Although the proliferation of federal offenses suggests on its face that state enforcement was inadequate to cope with marijuana trade or that increased use of the drug presaged increased narcotics addiction, nothing could be farther from the truth. Considering marijuana alone, the 1956 legislation was passed in response to no need at all. The enforcement statistics confirm our hypothesis that marijuana was simply "along for the ride."
First, as we noted above, federal arrests declined continually after 1952.91 Although attributable in part to increased state enforcement92 and to a conscious FBN decision to concentrate on narcotics, the figures do suggest a decline in or at least a stabilization of marijuana use by the middle fifties, even in areas in which narcotics use continued unabated. Second, the class of users does not seem to have changed at all during this period. Arrest statistics still indicate that use was centered in the ghetto areas of major cities93 in California, Texas, Louisiana, Michigan, New York, and Illinois.94 However, because statistics were not refined according to race, age, sex and often even the drug used,95 we cannot state categorically that there was no change in use patterns. 96
6. The Epitome of Irrationality: Virginia's 1958 Amendment
In 1958, Virginia's Uniform Drug Act was further amended to make the "possession of illegally acquired narcotic drugs [which included marijuana] in any quantity greater than twenty-five grains, if in solid form, or eight ounces, if in liquid form," a crime punishable by a fine of not more than $5,000 and imprisonment for not less than twenty nor more than forty years .97 The effect of this enactment was to provide a penalty for illegal possession that was more than twice as severe as the penalty for unlawful sale and one and one-half times more stringent than that for sale to a minor. It is incredible that despite the extreme harshness of this penalty, the measure passed both houses of the General Assembly with but one dissenting vote, and no mention was made of it in the Richmond Times-Dispatch during the period of February 14 to April 7, 1958.
In conclusion, the Federal Narcotic Control Act of 1956 and subsequent state legislation reflect the same basic congressional and public misconceptions about the nature and dangers of marijuana that characterized the early fifties. Even more unchanged, and in fact strengthened by results under the Boggs Act, was the assumption that the key to the solution of the narcotic drug problem was the imposition of harsher penalties on both users and traffickers in illicit drugs. Classification of marijuana with narcotic drugs was now a foregone conclusion. In fact, legislators seemed less aware that marijuana was a distinct substance than they had been in 1951.
1 Between 1937 and 1951, the Uniform Narcotic Drug Act was amended to change the definition of cannabis from the flowering or fruiting tops of just the female plant to include the corresponding parts of the male plant. See 1942 HANDBOOK 172-73.
2 Act of Nov. 2, 1951, ch. 666, 65 Stat. 767.
3 21 U.S.C. § 174 (1964).
4 26 U.S.C. § § 4741-76 (1964).
5 Hearings Before the Special Senate Committee to Investigate Organized Crime in Interstate Commerce, 82d Cong., 1st Sess., pt. 14, exhibit 1, at .131, 240-41, 266 (1951) [hereinafter cited as Kefauver Committee Hearings). Senator Kefauver stated at the June 26, 1951, session of the hearings:
Illegal drug use has reached epidemic proportions, according to information secured by this committee from different parts of the country. One of the most alarming aspects is the reported increase in addiction among the younger generation, some of school age.
Id., pt. 14, at 235. See also N.Y. Times, June 19, 1951, at 25, col. I ("the present wave of juvenile addiction struck us with hurricane force in 1948 and 1949, and in a short time had the two Federal hospitals bursting at the seams") (statement of Commissioner Anslinger).
6 A 57 year-old addict witness, who had started smoking opium around 1912, stated that he had never seen significant use of drugs by young people until recently and theorized that marijuana was the cause. Kefauver Committee Hearings, pt. 14, at 382. 7 97 CONG. REC. 8197 (195 1).
8 Id. at 8198.
9 Id. at 8198-8204.
10 Id. at 8198 (as quoted by Representative Boggs). See also Kefauver Committee Hearings, pt. 14, at 430-31 (testimony of Commissioner Anslinger).
11 97 CONG. REC. 8198 (1951).
12 Id. at 8196.
13 See id. at 8197, 8207. One of the most critical statements on this point came from Representative Harrison of Virginia who, after noting that narcotics laws violations had been increasing "only" in those jurisdictions where federal judges had failed to impose adequate sentences on recidivists, stated: "Where the judiciary is abusing its discretion, it is the duty of the law-making body to limit the discretion in order that the public may be protected." Id. at 8211.
14 Id. at 8207.
15 Id. at 8209.
16 Id. at 8210.
17 Representative Celler suggested that harsh mandatory sentences would have "two results: grand juries will refuse to indict and petit juries will refuse to convict." Id. at 8206.
18 Id. at 8207.
19 Id. at 8206.
20 Id. at 8197.
21 Representative Keating Questioned the constitutionality of the provision. Id. at 8206. Apparently Keating accepted Representative Harrison's statement that the language had been in the statutory predecessors for years and had been passed on by the Supreme Court. Id. at 8211.
22 TRAFFIC IN Opium 80 (1937). For a full and effective discussion of the flaws in these drug statistics from 1937 until the mid 1940's due to a confusion over what parts of the marijuana plant were to be weighed in determining how much of the drug had been seized, see Mandel, Problems with Official Drug Statistics, 21 STAN. L. REV. 991, 998-99 (1969).
23 The following figures are available from 1936 to 1941. After 1941 the FBN ceased publication of the number of seizures by state and municipal authorities:
|Year||Number of seizures||Amount seized|
TRAFFIC IN Opium 63 (1935); id. at 57 (1936); id. at 81 (1937); id. at 80 (1939); id. at 73 (1940); id. at 38 (1941). The great discrepancy in these numbers may be one reason the FBN ceased their publication in 1941.
24 Id. at 80 (1945).
25 Hearings on Dep'ts of Treasury and Post Office Appropriations for 19S1 Before a Subcomm. of the House Comm. on Appropriations, 81st Cong., 2d Sess., pt. 1, at 128 (1950).
26 The figures on the amount seized by federal agents from 1939-1945 are as follows:
|Year||FBN No. of Kgs. Seized||Customs No. of Kgs. Seized|
TRAFFIC IN Opium 78 (1939); id. at 72 (1940); id. at 37 (1941); id. at 49 (1942); id. at 42 (1943); id. at 34 (1944); id. at 23 (1945).
27 The figures for the period 1946-1951 are as follows:
|No. of Arrests for
Violations of Marijuana Laws
|Year||No. of Kgs. Seized||FBN||Customs|
TRAFFIC IN Opium 23, 27 (1946); id. at 23, 29 (1947); id. at 23, 28 (1948); id. at 22, 26 (1949); id. at 29, 33 (1950); id. at 25. 29 (1951).
28 See Teen-Age Dope Addicts New Problem?, U.S. NEWS & WoRLD REPORT, June 29, 1951, at 18 (interview with Commissioner Anslinger).
29 See text at note 10 supra.
30 See Teen-Age Dope Addicts New Problem?, supra note 28, at 19.
31 Anslinger, The Facts About Our Teen-Age Addicts, READERS Digest, Oct. 1951, at 139.
32 The conclusions of the La Guardia Report are discussed in THE MARIHUANA PAPERS 277-410 (D. Solomon ed. 1966). The thirteen conclusions on the sociology of marijuana use are so significant we include them in full:
From the foregoing study the following conclusions are drawn:
1. Marihuana is used extensively in the Borough of Manhattan but the problem is not as acute as it is reported to be in other sections of the United States.
2. The introduction of marihuana into this area is recent as compared to other localities.
3. The cost of marihuana is low and therefore within the purchasing power of most persons.
4. The distribution and use of marihuana is centered in Harlem.
5. The majority of marihuana smokers are Negroes and Latin-Americans.
6. The consensus among marihuana smokers is that the use of the drug creates a definite feeling of adequacy.
7. The practice of smoking marihuana does not lead to addiction in the medical sense of the word.
8. The sale and distribution of marihuana is not under the control of any single organized group.
9. The use of marihuana does not lead to morphine or heroin or cocaine addiction and no effort is made to create a market for these narcotics by stimulating the practice of marihuana smoking.
10. Marihuana is not the determining factor in the commission of major crimes.
11. Marihuana smoking is not widespread among school children.
12. Juvenile delinquency is not associated with the practice of smoking marihuana.
13. The publicity concerning the catastrophic effects of marihuana smoking in New York City is unfounded. Id. at 307.
33 The New York trend was also typical of Los Angeles. California Division of Narcotic Enforcement, Marijuana-Our Newest Narcotic Menace, April 11 1940, at 12. See also Note, Youth and Narcotics, 1 U.C.L.A. L. Rev. 445, 453 (1954) (reporting a breakdown by race of narcotics arrests by the Oakland police department).
34 For example, in 1895 New York had passed a statute, ch. 1041, 5 1, [1895 ] N.Y. Laws 972, requiring instruction in public schools on the effect of narcotics.
35 For full accounts of the FBN "educational campaigns" up through the present day, see TRAFFIC IN Opium from 1937 to the present. For the full exposition of the FBN's position on the drug user as a criminal before he becomes an addict, see Recidivism on Narcotic Law Violators, in Traffic in Opium for each year.
36 Judge J. Foster Svmes of Denver, Colorado, quoted in TRAFFIC IN OPIUM 57 (1937).
37 See, e.g., G. CREIGHTON, NARCOTICS: THEIR LEGITIMATE AND ILLICIT USE (I 95 1).
38 Hearings an H.R. 3490 before the Subcomm. on Narcotics of the House Comm. on Ways and Means. 82d Cong., 1st Sess. 147 (1951) [hereinafter cited as Boggs Act Hearings).
39 Dr. Isbell's paper stated:
Any definition [of addiction] which makes dependence an essential feature will also not include intoxications with such substances as cocaine, marijuana, and amphetamine. because dependence on these substances is no more marked than is dependence on tobacco and coffee and yet, in some ways, intoxication with cocaine or marijuana is more harmful than is addiction to morphine. Furthermore, definitions which exclude cocaine and marijuana from the list of addicting drugs would cause endless confusion because, in common parlance and legally, both drugs arc regarded as addicting.
Id. at 147-48.
40 Id. at 148.
41 Kefauver Committee Hearings, pt. 14, at 119.
42 Id. at 136. See also Boggs Act Hearings I 01.
43 Boggs Act Hearings 96
44 Kefauver Committee Hearings, pt. 14, at 73, 101, 109 (statements of three addicts). See also id. at 190, 204 for statements by addicts to the effect that upon Moving from marijuana to hard drugs they did not know that the Latter were addictive. The implication is clear that marijuana is not addictive. See id. at 91.
45 Boggs Act Hearings 206.
46 Kefauver Committee Hearings, pt. 14, at 133. 47 Boggs Act Hearings 105.
48 Kefauver Committee Hearings, pt. 14, at 449; Boggs Act Hearings 62.
49 97 CONG. REC. 8197-98 (1951). The linkage of marijuana use to heroin was also supplied by sonic of the testimony by addicts themselves. Of 27 addicts interviewed in part 14 of the Kefauver Committee Hearings, 15 testified that they had started their drug use with marijuana. This figure is misleading because a substantial majority of the 12 who had not used marijuana were addicts because of illness or were older addicts who had begun using drugs before marijuana was readily available. See Kefauver Committee Hearings, pt. 14, at 11, 29, 54, 62, 71, 84, 93, 99, 104, 108, 153, 157, 160, 162, 167, 171, 182, 189, 194, 203, 211, 216, 220, 367, 380, 432, 436. Approximately 5 of the addict witnesses indicated that marijuana did in fact lead to the use of the harder drugs but only one gave definite reasons why he thought this transition inevitably took place. One male addict, after stating that the average age of marijuana smokers was 13 or 14, stated:
You would very seldom find a person smoking marijuana who does just that, he keeps on, and he gets to the point where he does not have the same drive or feeling that he first had, and it is like a stepping stone, he graduates to heroin. Kefauver Committee Hearings, pt. 14, at 199-200.
Note that among many of these addicts curiosity and peer group pressure was the primary factor in starting them into the use of hard drugs. Id. at 12, 32, 94, 109, 254. Moreover, Representative Boggs introduced some mystery into his statements during the House debates by stating:
A study in February of 1950 of 602 case reports indicates that 53 percent . . . started their addiction to drugs by reason of association with other addicts, and 7 percent of them started on marijuana.
97 CONG. REC. 8197 (1951). This study is cited on the same page with Representative Boggs' statement that our young people usually start on the road to drug addiction by smoking marijuana.
50 TRAFFIC IN Opium 6 (1950).
51 Alabama, Indiana, Maryland, New Jersey, Oklahoma, Tennessee and West Virginia. Id. at 8 (1951).
52 Connecticut, Illinois, Louisiana, Michigan, New York, Pennsylvania, Utah, Washington and Wisconsin. Id. at 8-9.
53 Colorado, Georgia, Kentucky and Virginia. Id. at 6 (1952).
54 Delaware, Iowa, Minnesota, Nebraska, Pennsylvania and Wyoming. Id. at 9 (1953). 55 The Ohio law, approved June 16, 1955, provided for imprisonment of any one found guilty of illegally selling narcotic drugs for a period of not less than twenty nor more than forty years. Id. at 7 (1955). 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. Sentences ranged from a five year minimum to a ninety-nine year maximum. Id. at 28 (1956).
56 Ch. 451, [1952) Va. Acts of Assembly 736.
57 The bill, H.B. 132, passed the House 65-0 on February 23, 1952, and the Senate 34-0 on March 7, 1952.
58 Richmond Times-Dispatch, Mar. 2, 1952, 5 2, at 1, col. 6.
59 Id., Feb. 24, 1952, § 2, at 5, col. 3. The House passed fifty bills and advanced thirty-five more during its session of February 23, 1952. Id.
60 Ch. 212,  Va. Acts of Assembly 361.
61 Ch. 451,  Va. Acts of Assembly 736.
62 See also Proffit, An Analysis of the Missouri Narcotic Drug Laws, 17 Mo. L. REV. 252 (1952), in which the author shows that narcotic hysteria was closely linked to the general hysteria and "Red Scare" of the early fifties: "The opinion has been advanced that the recent upsurge in consumption [of drugs] is fostered by Communists in an effort to undermine the morals of our youth." Id. at 252-53. He cites a Missouri official who so testified before a state legislative committee. For more of the same, see W. OURSLER & L. SMITH, NARCOTICS: AMERICA'S PERIL 266 (1952). The Missouri case parallels the Virginia data in that great public concern is expressed about the possible spread of narcotics addiction but little if any separate notice was given marijuana. Everywhere the narcotics evil was linked by veiled references to international communism, especially that of China, the traditional home of the opium habit.
63 Hearings on Illicit Narcotics Traffic Before the Subcomm. on Improvements in the Federal Criminal Code of the Senate Comm. on the judiciary, 84th Cong., 1st Sess. 57 (1955) [hereinafter cited as Daniel Committee Hearings]; see H. ANSLINGER & W. OURSLER, THE MURDERERS (1962).
64 Ch. 629, 70 Stat. 567.
65 Ch. 202, 42 Stat. 596 (1922).
66 Ch. 629, § § 103, 105-06, 108, 70 Stat. 568, 570, 571 (codified at 26 U.S.C. § 7237 (1964); 21 U.S.C. §§ 174, 176a, 184a (1964)).
67 Id. § 103, 70 Stat. 568 (codified at 26 U.S.C. § 7237 (1964)).
69 Id. § 106, 70 Stat. 570 (codified at 21 U.S.C. § 176a (1964)).
70 Id. (declared unconstitutional in Leary v. United States, 395 U.S. 6 (1969))
71 Id. § 103, 70 Stat. 568 (codified at 26 U.S,C. § 7237 (b) (1) (1964)). The statute also provided that a seller peddling heroin to a minor may be subject to a sentence of life imprisonment imposed by a court, or to a death sentence imposed by a jury. Id. § 107, 70 Star. 571 (codified at 21 US.C. § 176b (1964)).
72 Id. S 103, 70 Stat. 569 (codified at 26 U.S.C. §7237(d) (Supp. 111, 1966)).
73 Id. § 104, 70 Star. 570 (codified at 26 U.S.C. § 7607 (1964)).
74 Id. § 201, 70 Star. 573 (codified at 18 U.SC. S 1404 (1964)).
75 Id., 70 Star. S74 (codified at 18 U.S.C. S 1406 (1964)).
76 Id., 70 Star. 573 (codified at 18 U.S.C. 5 1403 (1964) ).
77 id., 70 Stat. 574 (codified at 18 U.S.C. § 1407 (1964)).
78 Id. S 301, 70 Stat. 575 (codified at 8 U.S.C. §§ 1182(a) (5), (23) (1964)).
79 The House Subcommittee on Narcotics, which produced what became the essentials of the Narcotic Control Act of 1956, revealed its knowledge of the distinction between marijuana and narcotics solely by a footnote to the major heading "Narcotics" which stated in fine print that the term narcotics included marijuana. See U.S. CODE CONG. & Am News 3294 (1956).
80 102 GONG. REC. 9015 (1956).
81 Representative Boggs, father of the Boggs Act and Chairman of the Subcommittee on Narcotics of the House Ways and Means Committee, stated that '[e]ffective steps to eliminate the unlawful drug traffic requires ... the imposition of severe punishment by the courts." Id. at 10689. The subcommittee, which had set out to determine the effect of the Boggs Act on narcotics traffic, U.S. CODE CONG. & AD. News 3291 (1956), began its recommendations with calls for further increases in the penalties for narcotics law violations. Id. at 3309. In fact, the subcommittee felt that this was the only way to eliminate the drug menace, and recommended that educational programs on the evils of narcotics not be instituted in the schools for fear of exciting the curiosity of young people. Id. at 3305. Both the House Ways and Means Committee report and the subcommittee report are filled with statements to the effect that harsher penalties are the most effective weapons in the war against illicit narcotics. Id. at 3281-3303 passim. The Ways and Means Committee conclusion was succinct: "Experience with the Boggs law . . . has clearly demonstrated the efficacy of severe punishment in reducing the illicit commerce in drugs." Id. at 3286.
Finally, Senator Daniel, speaking for the Senate subcommittee investigating the drug situation in the United States, found "it absolutely necessary for the Congress of the United States to strengthen the hands of our law enforcement officers and provide higher penalties if we are to stop the narcotics traffic in this country." 102 CONG. Rec. 9014 (1956). His subcommittee also recommended the kind of across-the-board increases in penalties that the Act eventually contained.
82 U.S. CODE CONG. & AD. News 3283 (1956); see id. at 3302.
83 Id. at 3304.
84 In holding unconstitutional the presumption of knowledge that marijuana was smuggled, the Supreme Court in Leary v. United States, 395 U.S. 6 (1969), relied on the change in use patterns from 1959 to 1967. We think the presumption was unconstitutional when passed in 1956, both as to importation and knowledge.
85 Daniel Committee Hearings 18.
86 The decline in the number of FBN arrests and seizures is directly related to the increase in local and state enforcement personnel. This thesis is supported by data from California where statewide arrests soared while federal arrests remained stable. Bureau of Criminal Statistics, California Dep't of Justice, Crime in California (1956). See also A. LiNDESMITH, THE ADDICT AND THE LAW 238 (1963). One commentator has suggested that except for the years immediately after the passage of the Marihuana Tax Act, when the Bureau wanted to concentrate on its newly acquired enforcement field, the FBN arrest data show clearly its emphasis on the hard narcotics. Mandel, Problems with Official Drug Statistics, 21 STAN. L. REV. 991, 1019-20 (1969).
87 See note 20 at p. 1053 supra.
88 Written materials inserted into the record of the Senate hearings included the testimony of an experienced federal Customs official that high quality marijuana was being grown near the Texas cities of Laredo and Brownsville. Daniel Committee Hearings 3488-89. In addition, the Attorney General of Ohio noted that marijuana may grow unnoticed along roadsides and vacant lots in many parts of the country." Id. at 4814. Also, a bulletin issued by the Philadelphia Police Academy recited that "[plenty of marijuana is found growing in this city." Id. at 599.
89 Blum, Mind-Altering Drugs and Dangerous Behavior: Dangerous Drugs, in THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: NARCOTICS AND DRUG ABUSE 21, 24 (1967); Bouquet, Cannabis, 3 U.N. BULL. ON NARCOTICS, Jan. 1951, at 22, 32-33.
90 This is especially true with respect to the young and black minorities. The presumption has validity only as applied to recently immigrated Mexicans. Cf. Chein, The Status of Sociological and Social Psychological Knowledge Concerning Narcotics, in NARCOTIC DRUG ADDICTION PROBLEMS 146, 155 (R. Livingston ed. 1963). Mr. Chein reports a shift in drug use from 1930-1960 from old to young and a continued increase in the percentage of drug users who are Black or Spanish-speaking.
91 The number of federal arrests for marijuana violations fell from 1288 in 1952 to 169 in 1960. TRAFFIC IN Opium 26 (1952); id. at 69 (1960).
92 By 1954, many major states and cities had special narcotics squads. See Daniel Committee Hearings 13 -14, 1 10.
93 Cf. TRAFFIC IN Opium 66 (1956); id. at 41 (1959). The FBN charts show clearly the extraordinary incidence of drug abuse among Blacks, Mexican-Americans and other minority communities.
94 Daniel Committee Hearings, exhibit 7, at 267-71. Local arrests in those six states accounted for 2,822 of the 3,205 marijuana arrests made by local law enforcers in 1954.
95 For example, the statistics in TRAFFIC IN Opium seldom even distinguish among the drugs involved, and the FBI Uniform Crime Statistics frequently report all drug related arrests together, with no delineation of the type of drug used or the nature of the offender.
96 Chein, supra note 90, at 152, suggests that whatever patterns of drug use existed in the fifties were merely continuations of patterns observed in the thirties.
97 Ch. 535, (19581 Va. Acts of Assembly 675.
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The Forbidden Fruit and the Tree of Knowledge