From: "Clifford A. Schaffer" <[s c haffer] at [smartlink.net]>
Newsgroups: talk.politics.drugs
Subject: History of The Drug Laws -- Part 1
Date: 12 Feb 1996 05:37:52 GMT

The History of the Non-Medical Use of Drugs in the United States
by Charles Whitebread

California Judges Association 1995 annual conference

This session is going to be about the history of the non-medical use of 
drugs. Let me say that, because this is going to be a story, that I think 
will interest you quite a bit.  The topic is the history of the 
non-medical use of drugs and I think you ought to know what my credentials 
are for talking about this topic.  As you may know, before I taught at the 
University of Southern California, I taught at the University of Virginia 
for fifteen years, from 1968 to 1981.  In that time period, the very first 
major piece that I wrote was a piece entitled, "The Forbidden Fruit and 
the Tree of Knowledge - The Legal History of Marihuana in the United 
States".  I wrote it with Professor Richard Bonnie, still of the faculty 
of the University of Virginia.  It was published in the Virginia Law 
Review in October of 1970 and I must say that our piece was the Virginia 
Law Review in October of 1970.  The piece was 450 pages long.  It got a 
ton of national attention because no one had ever done the legal history 
of marijuana before.  As a result of that, Professor Bonnie was named the 
Deputy Director of the National Commission on Marihuana and Drug Abuse and 
I was a consultant to that commission.
As a result of Richard's two year executive directorship of the National 
Commission in 1971 and 1972 he and I were given access to both the open 
and the closed files of what was then called the Bureau of Narcotics and 
Dangerous Drugs, what had historically been called the Federal Bureau of 
Narcotics and what today is called the Drug Enforcement Agency. Based upon 
our access to those files, both open and closed, we wrote a book called 
"The Marihuana Conviction- The Legal History of Drugs in the United 
States" and that book went through six printings at the University of 
Virginia press before being sold out primarily in sales to my friends at 
the FBI over the years.  It is based upon that work that I bring you this 
story.
If you are interested in the non-medical use of drugs in this country, the 
time to go back to is 1900, and in some ways the most important thing I am 
going to say to you guys I will say first.  That is, that in 1900 there 
were far more people addicted to drugs in this country than there are 
today. Depending upon whose judgment, or whose assessment, you accept 
there were between two and five percent of the entire adult population of 
the United States addicted to drugs in 1900.  
Now, there were two principal causes of this dramatic level of drug 
addiction at the turn of the century.  The first cause was the use of 
morphine and its various derivatives in legitimate medical operations.  
You know as late as 1900particularly in areas where medical resources were 
scarce it was not at all uncommon for you to say, let's say you would have 
appendicitis, you would go into the hospital, and you would get morphine 
as a pain killer during the operation, you would be given morphine further 
after the operation and you would come out of the hospital with no 
appendix but addicted to morphine.
  The use of morphine in battlefield operations during the Civil War was 
so extensive that, by 1880, so many Union veterans were addicted to 
morphine that the popular press referred to morphinism as the "soldier's 
disease".  Now I will say, being from Virginia as I am, that the 
Confederate veterans didn't have any problems about being addicted to 
morphine because the South was too poor to have any, and therefore 
battlefield operations on the Confederate Army were simply done by 
chopping off the relevant limb while they drank a little whiskey.  But the 
Northern troops heavily found themselves, as the result of battlefield 
operations and the use of morphine, addicted to morphine.

Now, the other fact that I think that is so interesting about drug 
addiction at the turn of the century, as opposed to today is who the 
addicts were, because they were the exact opposite of who you would think 
most likely to be an addict today.  If I were to ask you in terms of 
statistical groups who is most likely to be involved with drugs today, you 
would say a young person, a male, who lives in the city and who may be a 
minority group member.  That is the exact opposite of who was most likely 
to be addicted to drugs at the turn of the century. 
In terms of statistical groups, who was most likely to be addicted to 
drugs at the turn of the century?  A rural living, middle-aged white 
woman. The use of morphine in medical operations does not explain the much 
higher incidence of drug addiction among women.  What does is the second 
cause of the high level of addiction at the turn of the century -- the 
growth and development of what we now call the "patent medicine" industry. 
 
I think some of you, maybe from watching Westerns on TV if nothing else 
are aware that, again, as late as 1900, in areas, particularly rural areas 
where medical resources were scarce, it was typical for itinerant 
salesmen, not themselves doctors, to cruise around the countryside 
offering potions and elixirs of all sorts advertised in the most 
flamboyant kinds of terms.  "Doctor Smith's Oil, Good for What Ails You", 
or "Doctor Smith's Oil, Good for Man or Beast."  
Well, what the purveyors of these medicines did not tell their purchasers, 
was that later, when these patent medicines were tested, many of them 
proved to be up to fifty percent morphine by volume.
Now, what that meant, as I have always thought, was the most significant 
thing about the high morphine content in patent medicines was it meant 
they tended to live up to their advertising. Because no matter what is 
wrong with you, or your beast, you are going to feel a whole lot better 
after a couple of slugs of an elixir that is fifty percent morphine.  So 
there was this tendency to think "Wow!  This stuff works." Down you could 
go to the general store and get more of it and it could be sold to you 
directly over the counter.
Now, for reasons that we weren't able to full research, but for reasons, I 
think, probably associated with the role of women rural societies then 
patent medicines were much more appealing to women than  to men and 
account for the much higher incidence of drug addiction in 1900 among 
women than among men.  
If you want to see a relatively current portrayal of a woman addicted to 
patent medicine you might think of Eugene O'Neil's play "A Long Day's 
Journey Into Night".  The mother figure there, the one that was played by 
Katherine Hepburn in the movies was addicted to patent medicines.
In any event, the use of morphine in medical operations and the sale of 
patent medicines accounted for a dramatic level of addiction.  Again, 
between two and five percent of the entire adult population of the United 
States was addicted to drugs as late as 1900.  
Now if my first point is that there was a lot more addiction in 1900 than 
there is today and that the people who were addicted are quite a different 
group than the group we would be thinking of today,  my next point would 
be that if you look at drug addiction in 1900, what's the number one way 
in which it is different than drug addiction today? Answer:  Almost all 
addiction at the turn of the century was accidental.
People became involved with drugs they did not know that they were taking, 
that they did not know the impact of.  The first point, then, is that 
there was more drug addiction than there is now and most of it was 
accidental.  Then the single law which has done the most in this country 
to reduce the level of drug addiction is none of the criminal laws we have 
ever passed.  The single law that reduced drug addiction the most was the 
1906 Pure Food and Drug Act.  
The Pure Food and Drug Act of 1906 did three things:
1). It created the Food and Drug Administration in Washington that must 
approve all foods and drugs meant for human consumption.  The very first 
impact of that was that the patent medicines were not approved for human 
consumption once they were tested.  
2)  The Pure Food and Drug Act said that certain drugs could only be sold 
on prescription. 
3)  The Pure Food and Drug Act, (and you know, this is still true today, 
go look in your medicine chest) requires that any drug that can be 
potentially habit-forming say so on it's label.  "Warning -- May be habit 
forming."
The labeling requirements, the prescription requirements, and the refusal 
to approve the patent medicines basically put the patent medicine business 
out of business and reduced that dramatic source of accidental addiction. 
 The Pure Food and Drug Act of 1906, not a criminal law, did more to 
reduce the level of addiction than any other single statute we have passed 
in all of the times from then to now.
The very first criminal law at the Federal level in this country to 
criminalize the non-medical use of drugs  came in 1914.  It was called the 
Harrison Act and there are only three things about the Harrison Act that 
we need to focus on today.
Number one is the date.  Did you hear the date, 1914?  Some of you may 
have come this morning thinking that we have used the criminal law to deal 
with the non-medical use of drugs since the beginning of the Republic or 
something.  That is not true.  The entire experiment of using the criminal 
sanction to deal with the non-medical use of drugs really began in this 
country in 1914 with the Harrison Act.  
The second interesting thing about the Harrison Act was the drugs to which 
it applied, because it applied to almost none of the drugs we would be 
concerned about today.  The Harrison Act applied to opium, morphine and 
its various derivatives, and the derivatives of the coca leaf like 
cocaine.  No mention anywhere there of amphetamines, barbiturates, 
marijuana, hashish, hallucinogenic drugs of any kind.  The Harrison Act 
applied only to opium, morphine and its various derivatives and 
derivatives of the coca leaf like cocaine. 
The third and most interesting thing for you all as judges about the 
Harrison Act was its structure,  because the structure of this law was 
very peculiar and became the model for every single piece of Federal 
legislation from 1914 right straight through 1969. And what was that 
model?
It was called the Harrison Tax Act. You know, the drafters of the Harrison 
Act said very clearly on the floor of Congress what it was they wanted to 
achieve.  They had two goals.  They wanted to regulate the medical use of 
these drugs and they wanted to criminalize the non-medical use of these 
drugs.  They had one problem.  Look at the date -- 1914. 1914 was probably 
the high water mark of the constitutional doctrine we today call "states' 
rights" and, therefore, it was widely thought Congress did not have the 
power, number one, to regulate a particular profession, and number two, 
that Congress did not have the power to pass what was, and is still known, 
as a general criminal law.  That's why there were so few Federal Crimes 
until very recently.  
In the face of possible Constitutional opposition to what they wanted to 
do, the people in Congress who supported the Harrison Act came up with a 
novel idea.  That is, they would masquerade this whole thing as though it 
were a tax.  To show you how it worked, can I use some hypothetical 
figures to show you how this alleged tax worked?  
There were two taxes.  The first (and again, these figures aren't accurate 
but they will do to show the idea) tax was paid by doctors.  It was a 
dollar a year and the doctors, in exchange for paying that one dollar tax, 
got a stamp from the Government that allowed them to prescribe these drugs 
for their patients so long as they followed the regulations in the 
statute.  Do you see that by the payment of that one dollar tax, we have 
the doctors regulated?  The doctors have to follow the regulations in the 
statute.
And there was a second tax. (and again, these are hypothetical figures but 
they will show you how it worked.) was a tax of a thousand dollars of 
every single non-medical exchange of every one of these drugs.  Well, 
since nobody was going to pay a thousand dollars in tax to exchange 
something which, in 1914, even in large quantities was worth about five 
dollars, the second tax wasn't a tax either, it was a criminal 
prohibition. Now just to be sure you guys understand this, and I am sure 
you do, but just to make sure, let's say that in 1915 somebody was found, 
let's say, in possession of an ounce of cocaine out here on the street.  
What would be the Federal crime?  Not possession of cocaine, or possession 
of a controlled substance. What was the crime?  Tax evasion.
And do you see what a wicked web that is going to be?  As a quick preview, 
where then are we going to put the law enforcement arm for the 
criminalization of drugs for over forty years -- in what department? The 
Treasury Department.  Why, we are just out there collecting taxes and I 
will show you how that works in a minute.
If you understand that taxing scheme then you understand why the national 
marijuana prohibition of 1937 was called the Marihuana Tax Act. 
But before we get to that next big piece of Federal legislation, the 
marihuana prohibition of 1937, I would like to take a little detour, if I 
may, into an analysis of the early state marijuana laws passed in this 
country from 1915 to 1937.  
Let me pause to tell you this.  When Professor Bonnie and I set out to try 
to track the legal history of marijuana in this country, we were shocked 
that nobody had ever done that work before. And, secondly, the few people 
who had even conjectured about it went back to the 1937 Federal Act and 
said "Well, there's the beginning of it."  No.  If you go back to 1937, 
that fails to take account of the fact that, in the period from 1915 to 
1937, some 27 states passed criminal laws against the use of marijuana.  
What Professor Bonnie and I did was, unique to our work, to go back to the 
legislative records in those states and back to the newspapers in the 
state capitols at the time these laws were passed to try to find out what 
motivated these 27 states to enact criminal laws against the use of 
marijuana.  What we found was that the 27 states divided into three groups 
by explanation.  
The first group of states to have marijuana laws in that part of the 
century were Rocky Mountain and southwestern states. By that, I mean 
Texas, New Mexico, Colorado, Montana.  You didn't have to go anywhere but 
to the legislative records to find out what had motivated those marijuana 
laws.  The only thing you need to know to understand the early marijuana 
laws in the southwest and Rocky Mountain areas of this country is to know, 
that in the period just after 1914, into all of those areas was a 
substantial migration of Mexicans.  They had come across the border in 
search of better economic conditions, they worked heavily as rural 
laborers, beet field workers, cotton pickers, things of that sort.  And 
with them, they had brought marijuana.  
Basically, none of the white people in these states knew anything about 
marijuana, and I make a distinction between white people and Mexicans to 
reflect a distinction that any legislator in one of these states at the 
time would have made. And all you had to do to find out what motivated the 
marijuana laws in the Rocky mountain and southwestern states was to go to 
the legislative records themselves. Probably the best single statement was 
the statement of a proponent of Texas first marijuana law.  He said on the 
floor of the Texas Senate, and I quote, "All Mexicans are crazy, and this 
stuff (referring to marijuana) is what makes them crazy."  Or, as the 
proponent of Montana's first marijuana law said, (and imagine this on the 
floor of the state legislature) and I quote, "Give one of these Mexican 
beet field workers a couple of puffs on a marijuana cigarette and he 
thinks he is in the bullring at Barcelona."  
Well, there is was, you didn't have to look another foot as you went from 
state to state right on the floor of the state legislature.  And so what 
was the genesis for the early state marijuana laws in the Rocky Mountain 
and southwestern areas of this country? It wasn't hostility to the drug, 
it was hostility to the newly arrived Mexican community that used it.

A second group  of states that had criminal laws against the use of 
marijuana were in the Northeast, Connecticut, Rhode Island, New York -- 
had one and then repealed it and then had one again -- New Jersey.  Well, 
clearly no hypothesis about Mexican immigration will explain the genesis 
of those laws because, as you know, the Northeast has never had, still 
doesn't really, any substantial Mexican-American population. So we had to 
dig a little deeper to find the genesis of those laws.  We had to go not 
only to the legislative records but to the newspapers in the state 
capitols at the time these laws were passed and what we found, in the 
early marijuana laws in the Northeast, we labeled the "fear of 
substitution."  If I may, let me paraphrase an editorial from the New York 
Times in 1919 so we will get exactly the flavor of this fear of 
substitution.  
The New York Times in an editorial in 1919 said, "No one here in  New York 
uses this drug marijuana.  We have only just heard about it from down in 
the Southwest," and here comes the substitution.  "But," said the New York 
Times, "we had better prohibit its use before it gets here.  Otherwise" -- 
here's the substitution concept -- "all the heroin and hard narcotics 
addicts cut off from their drug by the Harrison Act and all the alcohol 
drinkers cut off from their drug by 1919 alcohol Prohibition will 
substitute this new and unknown drug marijuana for the drugs they used to 
use."  
Well, from state to state, on the theory that this newly encountered drug 
marijuana would be substituted by the hard narcotics addicts or by the 
alcohol drinkers for their previous drug that had been prohibited, state 
to state this fear of substitution carried, and that accounted for 26 of 
the 27 states -- that is, either the anti-Mexican sentiment in the 
Southwest and Rocky Mountain areas or fear of substitution in the 
Northeast. That accounted for 26 of the 27 states, and there was only one 
state left over.  It was the most important state for us because it was 
the first state ever to enact a criminal law against the use of marijuana 
and it was the state of Utah. 
Now, if you have been hearing this story and you have been playing along 
with me,  you think "Oh, wait a minute, Whitebread, Utah fits exactly with 
Colorado, Montana, -- it must have been the Mexicans."  
Well, that's what I thought at first. But we went and did a careful study 
of the actual immigration pattern and found, to our surprise, that Utah 
didn't have then, and doesn't have now, a really substantial 
Mexican-American population. So it had to be something else.
Come on folks, if it had to be something else, what do you think it might 
have been? Are you thinking what I was thinking -- that it must have had 
something to do with the single thing which makes Utah unique in American 
history -- its association with the  Mormon church.

With help from some people in Salt Lake City, associated with the Mormon 
Church and the Mormon National Tabernacle in Washington -- with their help 
and a lot of work we found out what the genesis was of the first marihuana 
law in this country.  Yes, it was directly connected to the history of 
Utah and Mormonism and it went like this.

I think that a lot of you know that, in its earliest days, the Mormon 
church permitted its male members to have more than one wife -- polygamy. 
 Do you all know that in 1876, in a case called Reynolds against the 
United States, the United States Supreme Court said that Mormons were free 
to believe what they wanted, but they were not free to practice polygamy 
in this country.  Well, who do you think enforced that ruling of the 
Supreme Court in 1876? At the end of the line, who enforces all rulings of 
the Supreme Court?  Answer:  the state and local police.  And who were 
they in Utah then?  All Mormons, and so nothing happened for many years.  
Those who wanted to live polygamously continued to do so.
In 1910, the Mormon Church in synod in Salt Lake City decreed polygamy to 
be a religious mistake and it was banned as a matter of the Mormon 
religion.  Once that happened, there was a crackdown on people who wanted 
to live in what they called "the traditional way".  So, just after 1910, a 
fairly large number of Mormons left the state of Utah, and indeed left the 
United States altogether and moved into northwest Mexico.  They wrote a 
lot about what they wanted to accomplish in Mexico.  They wanted to set up 
communities where they were basically going to convert the Indians, the 
Mexicans, and what they referred to as "the heathen" in the neighborhood 
to Mormonism.  
By 1914, they had had very little luck with the heathen, but our research 
shows now beyond question that the heathen had a little luck with them.  
What happened apparently -- now some of you who may be members of the 
church, you know that there are still substantial Mormon communities in 
northwest Mexico -- was that, by and large most of the Mormons were not 
happy there, the religion had not done well there, they didn't feel 
comfortable there, they wanted to go back to Utah where there friends were 
and after 1914 did.  
And with them, the Indians had given them marijuana.  Now once you get 
somebody back in Utah with the marijuana it all becomes very easy, doesn't 
it?  You know that the Mormon Church has always been opposed to the use of 
euphoriants of any kind.  So, somebody saw them with the marijuana, and in 
August of 1915 the Church, meeting again in synod in Salt Lake City 
decreed the use of marijuana contrary to the Mormon religion and then -- 
and this is how things were in Utah in those days -- in October of 1915, 
the state legislature met and enacted every religious prohibition as a 
criminal law and we had the first criminal law in this country's history 
against the use of marijuana. 
That digression into the early state marijuana laws aside, we will now get 
back on the Federal track, the year is 1937 and we get the national 
marijuana prohibition -- the Marihuana Tax Act

Now, first again, does everybody see the date, 1937?  You may have thought 
that we have had a national marijuana prohibition for a very long time.  
Frankly, we haven't.  
The marijuana prohibition is part and parcel of that era which is now 
being rejected rather generally -- the New Deal era in Washington in the 
late 30s.

Number two, you know, don't you, that whenever Congress is going to pass a 
law, they hold hearings.  And you have seen these hearings.  The hearings 
can be extremely voluminous, they go on and on, they have days and days of 
hearings.  Well, may I say, that the hearings on the national marijuana 
prohibition were very brief indeed.  The hearings on the national 
marijuana prohibition lasted one hour, on each of two mornings and since 
the hearings were so brief I can tell you almost exactly what was said to 
support the national marijuana prohibition.
Now, in doing this one at the FBI Academy, I didn't tell them this story, 
but I am going to tell you this story. You want to know how brief the 
hearings were on the national marijuana prohibition?

When we asked at the Library of Congress for a copy of the hearings, to 
the shock of the Library of Congress, none could be found.  We went 
"What?"  It took them four months to finally honor our request because -- 
are you ready for this? -- the hearings were so brief that the volume had 
slid down inside the side shelf of the bookcase and was so thin it had 
slid right down to the bottom inside the bookshelf. That's how brief they 
were.

Are you ready for this?  They had to break the bookshelf open because it 
had slid down inside.  There were three bodies of testimony at the 
hearings on the national marijuana prohibition. 

The first testimony came from Commissioner Harry Anslinger, the newly 
named Commissioner of the Federal Bureau of Narcotics. Now, I think some 
of you know that in the late 20s and early 30s in this country there were 
two Federal police agencies created, the FBI and the FBN -- the Federal 
Bureau of Investigation, and the Federal Bureau of Narcotics.  

In our book, I talk at great length about how different the history of 
these two organizations really are.

But, the two organizations, the FBI and the FBN had some surface 
similarities and one of them was that a single individual headed each of 
them for a very long time.  In the case of the FBI, it was J. Edgar 
Hoover, and in the case of the FBN it was Harry Anslinger, who was the 
Commissioner of the Federal Bureau of Narcotics from 1930 until 1962.

Commissioner Anslinger gave the Government testimony and I will quote him 
directly.  By the way, he was not working from a text that he had written. 
 He was working from a text that had been written for him by a District 
Attorney in New Orleans, a guy named Stanley.  Reading directly from Mr. 
Stanley's work, Commissioner Anslinger told the Congressmen at the 
hearings, and I quote, "Marihuana is an addictive drug which produces in  
its users insanity, criminality, and death."  That was the Government 
testimony to support the marijuana prohibition from the Commissioner.
The next body of testimony -- remember all of this took a total of two 
hours -- uh ..  You understand what the idea was, don't you?  The idea was 
to prohibit the cultivation of hemp in America.  You all know, because 
there has been some initiative here in California that hemp has other uses 
than its euphoriant use.  For one, hemp has always been used to make rope. 
Number two, the resins of the hemp plant are used as bases for paints and 
varnishes. And, finally, the seeds of the hemp plant are widely used in 
bird seed. Since these industries were going to be affected the next body 
of testimony came from the industrial spokesmen who represented these 
industries.
The first person was the rope guy.  The rope guy told a fascinating story 
-- it really is fascinating -- the growth of a hemp to make rope was a 
principle cash crop right where I am from, Northern Virginia and Southern 
Maryland at the time of the Revolutionary War. But, said the rope guy, by 
about 1820 it got cheaper to import the hemp we needed to make rope from 
the Far East and so now in 1937 we don't grow any more hemp to make rope 
in this country -- it isn't needed anymore.

If you heard that story, there are two things about it that I found 
fascinating.  Number one, it explains the long-standing rumor that our 
forefathers had something to do with marijuana.  Yes, they did -- they 
grew it.  Hemp was the principal crop at Mount Vernon.  It was a secondary 
crop at Monticello.  Now, of course, in our research we did not find any 
evidence that any of our forefathers had used the hemp plant for 
euphoriant purposes, but they did grow it.

The second part of that story that, to me is even more interesting is  -- 
did you see the date again - 1937?  What did the rope guy say?  We can get 
all the hemp we need to make rope from the Far East, we don't grow it hear 
anymore because we don't need to.
Five years later, 1942, we are cut off from our sources of hemp in the Far 
East.  We need a lot of hemp to outfit our ships for World War II, rope 
for the ships, and therefore, the Federal Government, as some of you know, 
went into the business of growing hemp on gigantic farms throughout the 
Midwest and the South to make rope to outfit the ships for World War II.

So, even to this day, if you are from the Midwest you will always meet the 
people who say, "Gosh, hemp grows all along the railroad tracks."  Well, 
it does.  Why?  Because these huge farms existed all during World War II.

But, the rope people didn't care.  The paint and varnish people said "We 
can use something else." And, of the industrial spokesmen, only the 
birdseed people balked.  The birdseed people were the ones who balked and 
the birdseed person was asked, "Couldn't you use some other seed?"

These are all, by the way, direct quotes from the hearings.  The answer 
the birdseed guy gave was, "No, Congressman, we couldn't.  We have never 
found another seed that makes a birds coat so lustrous or makes them sing 
so much."

So, on the ground that the birdseed people needed it -- did you know that 
the birdseed people both got and kept an exemption from the Marihuana Tax 
Act right through this very day for so-called "denatured seeds"?  

In any event, there was Anslinger's testimony, there was the industrial 
testimony -- there was only one body of testimony left at these brief 
hearings and it was medical.  There were two pieces of medical evidence 
introduced with regard to the marijuana prohibition.

The first came from a pharmacologist at Temple University who  claimed 
that he had injected the active ingredient in marihuana into the brains of 
300 dogs, and two of those dogs had died.  When asked by the Congressmen, 
and I quote, "Doctor, did you choose dogs for the similarity of their 
reactions to that of humans?"  The answer of the pharmacologist was, "I 
wouldn't know, I am not a dog psychologist." 

Well, the active ingredient in marijuana was first synthesized in a 
laboratory in Holland after World War II.  So what it was this 
pharmacologist injected into these dogs we will never know, but it almost 
certainly was not the active ingredient in marijuana.


-- 

Clifford A. Schaffer
P.O. Box 1430
Canyon Country, CA 91386-1430
(805) 251-4140
World Wide Web: http://www.calyx.net/~schaffer
World's Largest Online Library of Drug Policy