Legalizing Drugs | Introduction
The prohibition of drugs is a relatively recent phenomenon in the history of the United States. During the nineteenth century, the federal government applied a laissez-faire philosophy to drugs and asserted no control over their manufacture or consumption. Americans interpreted the U.S. Constitution strictly, believing that the federal government had limited powers and should leave the passage and enforcement of most laws to the states. As a result of this “hands off” philosophy, the companies that manufactured and sold addictive drugs were not regulated.
By the beginning of the twentieth century, however, many Americans had become addicted to drugs. Since the 1850s, morphine had been used not only as an anesthetic for use during surgery, but as a routine pain killer. Morphine use was particularly common among Civil War veterans who had received the drug during and after surgery. Many continued to use morphine for chronic severe pain caused by war injuries. By 1880, so many veterans were addicted to morphine that the press referred to morphine addiction as the soldier’s disease.
Yet Civil War soldiers were not the only drug addicts. At the turn of the century, many middle-aged white women were addicted to drugs. Physicians who were not aware of the dangers of addiction prescribed opium or morphine for such common conditions as menstrual cramps, anxiety, and insomnia. Salesmen roamed the countryside selling potions and elixirs containing alcohol and narcotics such as morphine, cocaine, and opium. These salesmen claimed that their patent medicines could cure diseases ranging from the common cold to tuberculosis. Americans could even obtain these medicines from mail order catalogues.
Because companies were not required to disclose their contents, consumers were often unaware that they were using narcotics. Some of these preparations contained as much as 50 percent morphine, but other powerful drugs often were included.
Sometimes, people used drugs whose dangerous qualities were poorly understood. For example, heroin was considered a nonaddictive treatment for morphine addiction and alcoholism. And from its development in 1886 until 1903, Coca-Cola contained cocaine and was marketed as a “brain and nerve tonic” in drugstores. The availability of these drugs led to a rise in addiction in America.
At the end of the nineteenth century, however, a reforming spirit was evident in the nation. This new attitude led some to believe that addiction to drugs, too, should be addressed through legislative action. The first federal law passed in response to drugs was the Pure Food and Drug Act of 1906. The law not only required that manufacturers list the contents of patent medicines that included morphine, cocaine, opium, or chloral hydrate, but also prohibited manufacturers from making false claims about the benefits of taking these products. Because most compa- nies could not prove the effectiveness of these “medicines,” the law led to the demise of the patent medicine industry. However, the Act did not address the use of these drugs by consumers.
Despite a drop in drug addiction following the restriction on patent medicines, the federal government decided to do more to discourage the use of narcotics. In 1914, Congress passed the Harrison Tax Act, which required that doctors pay a yearly tax of one dollar, which allowed them to prescribe drugs containing opium or coca products as long as they followed the statute’s guidelines. Although others could buy the drugs for nonmedical uses, the tax on such transactions was set high enough to either discourage purchase of the drugs or to force buyers to evade the tax, in effect criminalizing their use. Enforcement of the Harrison Tax Act was at first assigned to the Internal Revenue Service, but in 1930 the Bureau of Narcotics was established for this purpose.
Not long after the formation of the Bureau of Narcotics, the focus of drug enforcement efforts again shifted. Addicts were now seen as criminals, whether or not they had paid their taxes. According to law professor Charles Whitebread, “The existence of this separate agency anxious to fulfill its role as crusader against the evils of narcotics has done as much as any single factor to influence the course of drug regulation from 1930 to 1970. . . . [T]he existence of a separate bureau having responsibility only for narcotics enforcement and for educating the public on drug problems inevitably led to a particularly prosecutorial view of the narcotic’s addict.”
The first Commissioner of the Federal Bureau of Narcotics, Harry Anslinger, saw his effort to wipe out addiction as a crusade. His first target, however, was not chemically a narcotic at all; it was marijuana. Again, the federal effort used taxes as its primary tool. The Marijuana Tax Act of 1937 levied taxes on marijuana dealers and a transfer tax on marijuana sales.
Commissioner Anslinger was convinced, as he noted during Congressional hearings, that “marijuana is an addictive drug, which produces in its users insanity, criminality, and death.” After Anslinger’s appointment to the Bureau of Narcotics, he launched a misinformation campaign against marijuana, enrolling the services of Hollywood and several tabloid newspapers. Exaggerated accounts of the criminal behavior of those who used marijuana became common. As reports of the dangers of using marijuana spread, Anslinger’s position against marijuana gained credibility. The Assistant General Counsel for the Department of the Treasury, Clinton Hester, affirmed that the drug’s eventual effect on the user “is deadly.” Moreover, a Washington Times editorial published before the first hearing on the issue argued: “The fatal marijuana cigarette must be recognized as a deadly drug and American children must be protected against it.”
The lone voice against marijuana prohibition was Dr. William C. Woodward, a doctor and Chief Counsel to the American Medical Association (AMA), who testified that the AMA knew of no evidence that marijuana was dangerous. Woodward questioned the propriety of passing legislation based on personal opinion and asked why no data from the Bureau of Prisons or the Children’s Bureau supported Anslinger’s position. He also argued that the legislation would severely compromise a physician’s ability to utilize marijuana’s therapeutic potential. The committee showed no interest in Woodward’s testimony, however, remark- ing, “If you want to advise us on legislation, you ought to come here with some constructive proposals . . . rather than trying to throw obstacles in the way of something that the federal government is trying to do.” After only two hours of testimony before the committee, less than two minutes of testimony before Congress, and no debate at all before the Senate, the Marijuana Tax Act passed.
Anslinger had convinced Congress that marijuana was a dangerous, addictive drug. However, this position led to some unwanted results. Because of Anslinger’s claim that marijuana caused mental illness, some lawyers successfully argued that the use of marijuana and the resulting insanity meant that some criminals should not be held accountable for their offenses. Still, the use of the insanity plea in these cases strengthened marijuana’s reputation as a dangerous drug.
Congress, however, was not satisfied that the penalties were harsh enough to discourage the use of marijuana. Studies indicated that there had been a 77 percent increase for narcotics violations between 1948 and 1950. Moreover, movies like High School Confidential created the perception that high school students were starting to use drugs. So in 1951, Congress passed the Boggs Act, which nearly quadrupled the penalties for narcotics offenses and lumped marijuana together with narcotic drugs.
Once again, Anslinger’s voice drowned out opposition by the medical community. During the hearings on the Boggs Act, doctors questioned whether marijuana was the dangerous drug that Anslinger and his supporters made it out to be. Dr. Harris Isbell, Director of Research at the Public Health Service hospital in Lexington, Kentucky, stated that marijuana was not physically addictive. In other testimony before a committee chaired by Senator Estes Kefauver, he testified that “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.”
Rather than contradict the doctor’s testimony, Anslinger agreed. However, he argued that marijuana was the first step on the road to heroin addiction. This “gateway” theory quickly gained support. Representative Boggs himself mentioned during House 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.” Anslinger’s gateway theory convinced Congress to approve the Boggs Act.
The government’s efforts to stop the spread of drug use seemed to be working, but out of concern that drugs were providing a source of income to organized crime, the enforcement focus shifted from those who bought drugs to those who sold them. As part of this shift, in 1956, Congress passed the Narcotic Control Act, also known as the Daniel Act, which increased the penalties for violation of the previous drug tax laws. The new law raised the fine for all narcotics and marijuana offenses and increased the mandatory minimum sentences, making suspended sentences, probation, and parole for offenders unavailable. However, the heaviest penalties were for sale of drugs, especially to minors. The states passed similar acts, some with mandatory minimum sentences as long as forty years for the sale of marijuana.
The government’s punitive approach to drugs soon came under fire. Reform-minded lawyers, academics, and physicians argued that addicts should not be jailed but hospitalized, believing that addiction should be treated as a disease instead of a crime. Some believed that Methadone, a synthetic opiate developed in Germany during World War II, was a possible solution to the problem of heroin addiction. Others believed that rehabilitation was the answer, and in 1966, civil commitment for addiction became possible.
By the late 1960s, public attitudes toward drugs had once again shifted. Research had shown that marijuana was less harmful than previously claimed. If the dangers of this drug had been overstated, the argument ran, perhaps it was time to reexamine laws against this and other drugs. Consequently, Congress passed the Controlled Substances Act, under which the penalties for drug use were lowered. The Act also abandoned the idea of using tax laws to control drug use. Although it was still illegal to possess addictive drugs other than nicotine and alcohol, the harsher penalties were reserved for those who sold drugs—particularly when the sale was to a minor. The same law also classified all drugs—even antibiotics—according to their potential for abuse and their significance as medicines.
Despite all the efforts by the government to discourage drug use, by 1971, it was clear that the laws were not working as planned. An evaluation of the government’s drug policy by the National Commission on Marijuana and Drug Abuse found that rates of addiction had not dropped significantly. As part of its findings, the commission recommended decriminalization of marijuana to relieve law enforcement agencies of the burden of arresting individual users and to allow authorities to concentrate on investigating large-scale crime and more dangerous drugs. The recommendation was controversial, and then-President Richard Nixon refused to officially receive the report. Instead, Nixon declared that drugs were America’s number one public enemy.
The president’s declaration helped lend urgency to the debate over the government’s drug policies. Moreover, in 1973, a second report made by the National Commission on Marijuana and Drug Abuse focused on the measurable damage of drug use and addiction. The report found, for example, that heroin—perceived to be one of the most deadly drugs—actually resulted in fewer deaths than barbiturates. In response, the federal government dedicated more funds to support anti-drug efforts and created the National Institute on Drug Abuse in 1974.
The federal policy toward drugs continued to evolve in the 1980s, in some ways returning to a focus on individual drug users. President Ronald Reagan’s drug policy began with First Lady Nancy Reagan’s “Just Say No” campaign. Rather than concerning itself with the forces that encouraged drug use and with those who sell drugs, the campaign emphasized the individual’s responsibility for avoiding drug use. Holding individuals ac- countable took another step forward in 1988, with the passage of a law that imposed civil penalties of as much as $10,000 for possession of even small quantities of illegal drugs.
By the late 1980s, some in the government were ready to declare victory in the war on drugs. In 1989, for example, former President Ronald Reagan claimed that casual drug use had diminished by 37 percent between 1979 and 1989. However, twenty to forty million people still used drugs, and when President George Bush addressed the nation on September 5, 1989, he outlined his strategy for eradicating drug use, calling on Congress to spend $7.2 billion for his war on drugs. Congress granted this request. Of this funding, 70 percent went to law enforcement, including $1.6 billion for jails. Only 30 percent went to prevention, education, and treatment. The Bush administration waged its war by focusing on an enforcement approach—arresting, rather than rehabilitating the drug user.
As the twentieth century closed, the government’s response to drugs continued to be a matter of debate. Many who had once supported prohibition of drugs and who had been staunch supporters of the war on drugs began to question the efficacy of United States policy toward drugs and drug abuse. Even the conservative author and journalist William F. Buckley Jr., who had previously supported the government’s drug policy, came to argue that the costs of prohibition were too high, hurting not only users, but nonusers whose lives are put at risk by the criminal practices of users. However, Buckley noted that his was not a popular position, saying “most Americans think that voting in favor of legalization is like voting in favor of drugs.” As a consequence, U.S. drug policy continued to oppose drug legalization.
The debate over legalization has continued into the twenty-first century. Some continue to support strong legislative measures to combat drug use, arguing that the government must protect its citizens from the dangers of drug abuse. These opponents claim that legalization of any kind would not only increase drug use but other crime as well. Others argue that decriminalization and regulation of drug sales represent more humane solutions, claiming that not only is America losing the war on drugs but the casualties of the war far outweigh any intended benefits. Still others argue for outright legalization, reasoning that the U.S. Constitution prohibits government interference in the personal choice to use or abuse drugs. Whether arguing for decriminalization, regulation, legalization, or continued prohibition of drugs, the authors of the viewpoints in this volume continue the drug policy debate.
