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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
IV. PASSAGE OF THE UNIFORM NARCOTIC DRUG ACT:
1927-1937
Our conclusions to this point bear summarization. During the first two decades of the twentieth century, state as well as national policy was steadfastly opposed to manufacture, sale and consumption of narcotics and alcohol except for medical purposes. Constitutional objections ions were uniformly ignored, in the narcotics cases primarily because the nexus between the private conduct and public harm was in fact a close one, and in the alcohol cases primarily because the legislation was in response to full operation of the public opinion process, to which the courts were willing to defer.
We have also found that public opinion had not crystallized against intoxicants generally, although public policy was moving rapidly in that direction. Ultimately, the mere existence of that public policy even in the form of criminal law-was not sufficient to convert a public antipathy toward the evils of commercial alcohol traffic into opposition to moderate use of alcohol. On the question of private use, the public policy was unenforceable and eventually abandoned. However, with respect to narcotics, the public policy, also expressed through the criminal law, effectively converted narcotics use, in the public view, from a medical problem to a legal-moral problem. Sympathy for unfortunate victims turned into moral indictment. Because other laws and medical advances had reduced the number of accidental addicts, the number of addicts decreased; in this sense the public policy was successful. However, to the extent that this police, effectively ostracized a group of users from the rest of society, drove them to criminal activity to sustain their habit, and engendered a moralistic public image, the stage was set for many ensuing problems the consequences of which have only recently become matters of public debate.
Ancillary to these developments during this period was the classification of marijuana in some half the states as an addictive drug that produced the same evils as the opiates and cocaine--crime, pauperism and insanity. The users, few in number, were primarily Mexicans. But as Mexican immigration increased and the legitimate supply of narcotics and alcohol disappeared, a fear developed, particularly in the western states, that marijuana use would increase, particularly among the white youth. As a result, some twenty-two states restricted marijuana use to medical channels. The private conduct objection having evaporated, the courts uncritically affirmed the legislative classification, accepting on faith nonscientific opinion that marijuana was a "killer weed."
Even though the public opinion process did not operate on the issue during this period, the decision-makers in all probability thought that their actions comported with latent public attitudes. If indeed marijuana caused crime and insanity, of course the public would oppose its use, as it presumably did use of opium and cocaine. Because the users were few in number and confined primarily to a suppressed social and economic minority, there was no voice which could be beard to challenge these assumptions. To put it another way, the middle class had successfully frustrated alcohol prohibition because the public opinion process came to reflect its view that the law should not condemn intoxication. Yet because marijuana use was primarily a lower class phenomenon, the middle class was generally unaware of the proposed legislation.
The public opinion process did not operate and decision-makers remained uninformed about the drug. Quickly and with neither consideration nor dissent, the laws were enacted, thus establishing a deliberative format followed often in the succeeding debates.
Although the groundwork had been laid, denigration of the "loco-weed" was primarily a regional phenomenon until 1932. Nationalization ensued in two fell swoops in the 1930's. First, cannabis was included in an optional provision of the Uniform Narcotic Drug Act proposed in 1932. Second, Congress enacted the Marihuana Tax Act in 1937. In the following sections we shall scrutinize these two watershed developments.
A. Origins of the Uniform Law
As we have suggested, the Harrison Act's masquerade as a revenue measure required residual state legislation in order to effectuate full prohibition of the narcotics trade in America.1 After its passage most states obediently marched to the tune played in Washington. By 1931 every state had restricted the sale of cocaine and, with the exception of two, the opiates.2 Thirty-six states had enacted legislation prohibiting unauthorized possession of cocaine3 and thirty-five prohibited unauthorized possession of the opiates and other restricted drugs.4 Eight states also prohibited possession of hypodermic syringes.5 Perhaps the most significant feature of the state response to the Harrison Act was the sharp increase in penalties between 1914 and 1931.6 Even those penalties, however, seem light in comparison with the current penalties.7
On the other hand, some influential legislators thought that the Federal Act was sufficient to deal with the problem.8 And there was a considerable lack of uniformity regarding the offenses prohibited and the penalties imposed by the several states. Finally, there was little attention devoted to development of enforcement patterns within and among the states.9
With such a variety of state legislation, it is not surprising that little data is available on the enforcement of these laws. Since the Uniform Crime Statistics, currently the most reliable source for enforcement data, were first compiled in 1932, there are no figures on the number of drug arrests by state authorities in the 1920's. One commentator asserts:
As of June 30, 1928, of the 7738 prisoners in federal penitentiaries, 2529 were sentenced for narcotics offenses, 1156 for prohibition law violations, and 1148 for stolen-vehicle transactions. Data are not available for approximately the same number in state institutions at this time.10
Despite the significant degree of federal enforcement activity evidenced by the above data, state law enforcement agencies seldom involved themselves with narcotics.11 Perhaps the best evidence of the lax enforcement of state narcotic laws from 1914 to 1927 is the 1921 call for more effective enforcement of the 1917 Massachusetts anti-narcotic law by the Medical Director of the Boston Municipal Court:
Our laws aiming at the suppression of morphinism could perhaps be better, but, no matter whether they be improved or not, they will not have their maximal efficiency without adequate appropriations for their enforcement. Even with the insufficient funds now available, more could be reached. I understand, for instance, that there is no special police force (white squads) entrusted with the detection and arrest of cases of V.D.L. [Violation of the Drug Law.] and that officers are very much hankered by not being allowed to follow suspected persons outside their particular districts.12
The general lack of uniformity in anti-narcotic legislation,13 the weakness of state enforcement procedures, 14 and the growing hysteria about dope fiends and criminality15 converged in several requests beginning as early as 1927 for a uniform state narcotic law.16
The drafting process of the Uniform Narcotic Drug Act must also be viewed against the backdrop of two larger movements:
(1) the trend toward the creation and dissemination of uniform state laws by the National Commissioners on Uniform State Laws, a group to which each state sent two representatives appointed by the governor; and
(2) the general concern in the late 20's and early 30's about controlling interstate crime, manifested, for example, in the creation of the nearly autonomous Federal Bureau of Investigation in 1930.
Because the concepts of states rights and narrowly construed federal power held shelf sway in this period, appeal to the National Commissioners was the inevitable recourse for those pressing for uniform and-narcotic regulations.
B. Drafting the Law
A committee of Commissioners in conjunction with Dr. William C. Woodward, Executive Secretary of the Bureau of Legal Medicine and Legislation of the American Medical Association, prepared and submitted at the 1925 meeting of the Commissioners the First Tentative Draft.17 The Committee report stated: "It occurs to your committee that the New York Act should be taken as a basis for framing a Uniform Act, and the draft submitted herewith is largely a copy of the New York Act." 18 It appears that the First Draft was drawn up by the Chairman of the Committee alone.19 It was never presented on the floor of the full meeting but was recommitted for further study. 20 The First Draft included the following definitions:
(12) "Cannabis indica" or "cannabis sativa" shall include any compound, manufacture, salt, derivative or preparation thereof and any synthetic substitute for any of them identical in chemical composition.
(13) "Habit forming drugs" shall mean coca leaves, opium, cannabis indica or cannabis sativa.21
Nowhere in the Committee report or in the Proceedings does there appear an explanation of the inclusion of cannabis under the prohibited or regulated drugs.
The Second Tentative Draft was presented in 1928,22 and again the draft was not discussed at the Conference but recommitted for further study.23 The Second Draft was an exact copy of the 1927 New York statute.24 It retained cannabis in the class of "habit forming drugs ." 25 The lack of concern on the part of the Commissioners themselves for the whole narcotics matter is reflected in the remarks of the President of the Conference in introducing a brief statement to the Conference by Dr. Woodward:
President Miller: In view of the importance of the act I think it would not be amiss to listen to the Doctor for a few minutes, that he may point out to us why it is important. In some of the states we do not recognize the importance because it has not been called to our attention.26
Moreover, the statements of Dr. Woodward point out that one of the major forces supporting the drafting of the Uniform Act was the AMA. The doctors not only wanted to protect the public from drug addiction but also sought uniformity among state laws "in order that the profession may have a better understanding of its obligations and duties and of its rights in the use of narcotic drugs. " 27
Two Third Drafts were submitted. The initial one closely resembled the first two Tentative Drafts and was presented in 1929.28 Again, it was recommitted for further study.29 The second Third Tentative Draft30 was the first to remove cannabis from the definition of "habit forming drugs" and to include only a supplemental provision for dealing with the drug.31 The explanation for this change from the first two drafts is contained in this note following the supplemental section:
Note: Because of the many objections raised to the inclusion of cannabis indica, cannabis americana and cannabis sativa in the general list of habit-forming drugs, no mention is made of them in other sections of this act. The foregoing section is presented in order to meet an apparent demand for some method of preventing the use of such drugs for the production and maintenance of undesirable drug addiction. It may be adopted or rejected, as each state sees fit, without affecting the rest of the act.32
Judge Deering, the Chairman of the Committee on the Uniform Narcotic Drug Act, recommended recommission for further study because the committee had not yet had a chance to consult with the newly created Bureau of Narcotics. At the time of this conference (August 14, 1930) no one had yet been appointed to fill the office of Commissioner of the Bureau.33
After receiving suggestions from the newly appointed Commissioner Anslinger, the Committee presented a Fourth Tentative Draft to the national conference in September 1931.34 The section dealing with marijuana was identical to that included in the 1930 revised version of the Third Tentative Draft.35 The national conference directed the Committee to return the next year with a Fifth Tentative or Final Draft:36
The Fifth-and final-Tentative Draft was adopted by the National Conference of Commissioners on October 8, 1932.37 There were some major changes in the Uniform Act between the Fourth and the Fifth Tentative Drafts with regard to the regulation of marijuana. Although the marijuana provisions remained supplemental to the main body of the Act, any state wishing to regulate sale and possession of marijuana was instructed to simply add cannabis to the definition of "narcotic drugs," in which case all the other provisions of the Act would apply to marijuana as well as the opiates and cocaine.38 It appears that the change from a supplemental section to a series of amendments to the relevant sections of the Act was preferred by the Narcotics Bureau.39 The only opposition to adoption of the Final Draft came from some Commissioners who objected to tying the uniform state law to the terms of the Federal Harrison Act.40 This last obstacle to adoption of the Act was overcome by the argument that a number of states had already passed such legislation so that the federalism problem should not stand in the way; the Act was adopted 26-3.41 These floor arguments at the national conference are a most important indication that no one challenged or even brought up the issue of the designations of the drugs to be prohibited. Moreover, this brief debate confirms the notion that the Act received very little attention of any of the Commissioners other than those sitting on the committee that drafted it.42
Examination of the annual proceedings of the Commissioners immediately suggests several conclusions about the drafting and proposal of the Uniform Narcotic Drug Act. (1) It was drafted in conjunction with the American Medical Association and, after 1930, Commissioner Anslinger of the Federal Bureau of Narcotics. (2) It was not one of the more controversial uniform laws and it was given little consideration during the full meetings of the Commissioners. (3) Impetus for the legislation, especially the optional marijuana provisions, came from the Bureau of Narcotics itself. (4) No scientific study of any kind was undertaken before the optional marijuana section was proposed. (5)The first three tentative drafts included marijuana within the general part of the Act while the last two (including the one finally adopted by the Commissioners) made marijuana the subject of a separate, optional provision. (6) The model for all the drafts of the Uniform Act was the 1927 New York State statute.
C. Passage of the State Laws
By 1937 every state had enacted some form of legislation relating to marijuana, and thirty-five had enacted the Uniform Act.43 The process by which a previously regional phenomenon became nationwide closely parallels that which characterized the earlier state-by-state developments. The major difference is that the Bureau of Narcotics sought to insure passage of the Act in each state through lobbying and testifying before the legislatures and by propagandizing in channels of public opinion. The Bureau's role has been overstated, however. The same factors that combined to produce the earlier legislation were exacerbated during the nationalization period, 1932-1937, and the legislation probably would have passed just as easily without the efforts of the Bureau.
Use of the drug was still slight and confined to underprivileged or fringe groups who had no access either to public opinion or to the legislators. The middle class had little knowledge and even less interest in the drug and the legislation. Passage of the Act in each state was attended by little publicity, no scientific study and even more blatant ethnic aspersions than the earlier laws. In short, the laws went unnoticed by legal commentators, the press and the public at large, despite the propagandizing efforts of the Bureau of Narcotics.
1. Use Patterns and Public Knowledge: 1931-1937
As we noted earlier, marijuana use began in this country in states near the Mexican border,44 "marijuana" in fact being a Mexican label for the cannabis drug. Throughout the 1920's marijuana use was confined primarily to the Mexican-American community; however, by the late 20's use of this drug had spread to many of the larger cities and had become quite popular among some elements in the Black ghettoes .45 jazz musicians, dancers and others found the drug a cheap and readily available euphoriant.46
Nevertheless, use still remained slight even in 1934. Commissioner Anslinger himself asserted in 1937: "Ten years ago we only heard about it [marijuana] throughout the Southwest . . . . [I]t has only become a national menace in the last 3 years." 47 Still another commentator has written:
Only in the 1920's was there any significant usage even by the Mexican-American communities in border cities, and only in the mid and late 1920's did Negro, jazz musicians and "degenerate" bohemian sub-cultures start smoking marijuana. Even the most lurid Journalists did not claim marijuana "seeped" into society at large until the 1930's and usually the mid-30's.48
As late as 1928, the arrest of one Harlem youth for possession of a small amount of marijuana was news." Thus, we conclude that the number of users was still small, although it may have begun to grow around 1935, and that these users were still concentrated regionally in the West and Southwest and socioeconomically within the lower class Mexican-American and Black communities.
At the same time, the overwhelming majority of middle-class Americans in the 1930's knew nothing of marijuana use-they had never seen marijuana and knew no one who used the drug. Prior to 1935 there was little, if any, attention given marijuana in major national magazines50 and the leading national newspapers.51 That few middle class Americans in this period knew anything of marijuana or its effects is best illustrated by the fact that the Bureau of Narcotics conducted a campaign to alert people to the dangers of marijuana. The Bureau as early as 1932 began arousing public opinion against marijuana by "an educational campaign describing the drug, its identification and its evil effects." 52 In July 1936, the New York City police were shown marijuana so that they would recognize it growing or in dried, smokeable form .53 Thus, even policemen had to be shown the plant as late as 1936 to permit effective enforcement of the New York state law. We may accordingly infer that the level of public familiarity with the drug was quite low indeed.54
What little information filtered to the middle class was generated by sporadic campaigns by local newspapers detailing the potential evils of marijuana; the accounts, as before, were sensationalistic and tended to exacerbate latent ethnic prejudices. For example, a 1934 newspaper account linked crime in the Southwest with marijuana smoking Mexican-Americans in the region.55 In a 1935 letter to the editor of the New York Times, a Sacramento, California, reader asserted:
Marijuana, perhaps now the most iinsidious of our narcotics, is a direct by-product of unrestricted Mexican immigration . . . . Mexican peddlers have been caught distributing sample marijuana cigarettes to school children.56
The writer went on to demand a quota on Mexicans permitted to enter the country. In testifying in favor of the Marihuana Tax Act, Commissioner Anslinger submitted a letter he had received from the editor of a Colorado newspaper asking the Bureau to help stamp out the marijuana menace. After describing an attack by a Mexican-American, allegedly under the influence of marijuana, on a girl of his region the writer stated:
I wish I could show you what a small marijuana cigaret can do to one of our degenerate Spanish-speaking residents. That's why our problem is so great; the greatest percentage of our population is composed of Spanish-speaking persons, most of whom are low mentally, because of social and racial conditions.57
Again, in the testimony at the hearings on the Marihuana Tax Act the following is excerpted from an article included in the record:
We find then that Colorado reports that the Mexican population there cultivates on an average of 2 to 3 tons of the weed annually. This the Mexicans make Into cigarettes, which they sell at two for 25 cents, mostly to white school students.58
Thus, not only did few middle-class Americans know about marijuana and its use, but also what little "information" was available provoked an automatic adverse association of the drug with Mexican immigration, crime and the deviant life style in the Black ghettos. Naturally, the impending drug legislation, as had the earlier state legislation, became entangled with society's views of these minority groups.
2. Role of the Federal Bureau of Narcotics
It has become quite fashionable among critics of existing marijuana legislation to assert that the sole cause of the illegal status of marijuana has been the crusading zeal of the Federal Bureau of Narcotics and especially of its long-time head, Harry J. Anslinger. Some observers have suggested that the Bureau's activity was produced by bureaucratic exigencies and the need to expand;59 others have said the Bureau was on a moral crusade;60 still others have asserted that the Bureau believed its own propaganda about the link between criminality and dope fiends.61 While much of this may be true, it is clear that the Bureau did not single-handedly conjure up the idea of banning marijuana use. Since many states had already undertaken the regulation of marijuana before the creation of the Bureau in 1930, we cannot credit the Bureau alone with the pressure to outlaw the drug.
At the same time, it is certain that the Federal Bureau of Narcotics' actions quickened the pace of the passage by state legislators of the Uniform Narcotic Drug Act. The Bureau saw the passage of state narcotics laws as one of its primary objectives. To this end we have detailed how directly the Bureau was involved in the creation of the Final Draft of the Uniform Act. After approval of the Final Draft, the Bureau began a significant campaign in the newspapers and legal journals to boost public support for the Uniform Act.62 By detailing the inability of federal enforcement agencies to deal with the burgeoning narcotics traffic, the Bureau continued to press for passage of the Uniform Act by creating a felt need in the public for such legislation.63 Despite the efforts of the Bureau, the Uniform Act went virtually unnoticed by legal commentators and periodicals, and by the public media.
3. Legislative Scrutiny and Media Coverage
The Uniform Act was passed by the legislatures of most states with out scientific study or debate and without attracting public attention.
In examining in detail the passage of the Uniform Act in Virginia and some other selected states, it will be clear that public concern over marijuana succeeded the outlawing of the drug and did not precede it. Our methodology to determine the extent of public attention in a given state at the time of the passage of the act was to review the newspapers of larger cities for the two weeks before and after passage.64
In Virginia the Uniform Narcotic Drug Act passed the House 88-0 on February 16, 1934,65 and was approved 34-0 by the Senate on February 22.66 Although the Act as passed in Virginia contained no marijuana provisions, the same legislature the next month passed a bill (H.B. 236), prohibiting "use of opium, marijuana [and] loco weed ... in the manufacture of cigarettes, cigars" and other tobacco products.67 This law, which amended a 1910 Virginia statute prohibiting the use of opium in the manufacture of cigarettes,68 was the first mention of marijuana, or any of its derivatives in the Virginia Code.
An examination of the Richmond Times-Dispatch, the newspaper of the state capital and perhaps the most influential newspaper in the state at that time, for the period surrounding the enactment of these two provisions (February 1 to March 15, 1934) shows clearly that little, if any, public attention attended their passage. There is no mention at any time of H.B. 236.69 As for H.B. 94 (the Uniform Act), the Times Dispatch reported on February 7 that the bill had been introduced. This announcement was buried among the list of all bills introduced and referred on February 6.70 In a February 12 article dealing with "controversial" bills before the House and Senate that week no mention was made of H.B. 94. On March 6, the newspaper recorded: "Among the important bills passed were. . . . [far down the list] the Scott bill, making the State narcotic law conform to the Federal statute." 71 That is the sum of the publicity received by the Uniform Act and the statute that first regulated marijuana in any way in Virginia.
In 1936, the legislature passed a separate statute prohibiting the sale and use of marijuana. This bill-S.B. 289-passed the House and Senate unanimously.72 The Act prohibited, except for a narrow medical exception, sale, possession, use and cultivation of marijuana .73 The penalties for violation, interestingly, were more severe than those for violation of the 1934 Uniform Act. Looking again at the Times-Dispatch for the period from February 15 to March 19, 1936, we find only one brief article on the new marijuana legislation. After the Senate passed the measure on February 29, the following appeared:
Among the bills passed by the Senate was the Apperson measure prohibiting the cultivation, sale or distribution of derivatives of the plant cannabis sativa, introduced as an outgrowth of alleged traffic in marihuana cigarettes in Roanoke. It fixes punishment for violation of its provisions at from one to 10 years in the penitentiary, or by confinement in jail for 12 months and a fine of not more than $1,000 or both.
Charges that school children were being induced to become addicts of marihuana cigarettes and that the weed was being cultivated in and near the city on a wide scale were laid before the Roanoke City Council last year. A youth who said he was a former addict of the drug testified before the Council that inhalation of one of the cigarettes would produce a 'cheap drunk' of several days' duration.74
No further mention of this statute was made after the House passed it or after the Governor signed it into law.
In order to determine whether the lack of public attention in Virginia was common to other states when the first prohibition of marijuana took place, we have surveyed the leading newspapers of several other states at the times encompassing passage of the law. We tried to select states that had not previously regulated use of the drug under the assumption that more publicity would attend initial legislation than an amendment of existing law.
In New Jersey, Rhode Island, Oregon and West Virginia, for example, the major newspapers of Newark, Providence, Salem and Charleston 78 respectively, referred to the Uniform Act only once and to marijuana not at all. In Kentucky, the Louisville Herald Post printed only two short references to the Uniform Act,79 one of which referred to marijuana:
[Congressman] Kramer added that boys and girls of school age are being led into the use of habit forming drugs by underworld leaders.......... Muggles" or cigarettes made from marijuana, commonly called loco weed or hemp, are also tabooed under the new state law, it was learned.80
Typical of both legislative and newspaper concern about the new law is the following Charleston Daily Mail comment:
A Narcotic Bill
Inconspicuously upon the special calendar of the house of delegates rather far down upon it-is Engrossed S.B. No. 230, lodging specific powers in the hands of state authorities for the control of the traffic in narcotics. It has passed the Senate unanimously. It should pass the House, and its only danger of defeat there is the very real one that it will become lost in the shuffle of adjournment now but a few hours away.
The bill goes under the name of the uniform narcotic drug act and it is just that. Identical measures for the control by the states of illicit traffic on drugs have been passed by other states, notably the Southern group. Its passage here would result in a broad territory in which there are corresponding laws .... 81
The editorial nowhere mentions marijuana. The bill itself passed in the waning hours of the special session with no subsequent attention given it. 82
From our survey of these and other states, we have concluded that with but one exception83 the Virginia experience was the norm. (1) The laws prohibiting use, sale, possession, and distribution of marijuana passed unnoticed by the media. There was no public outcry for such legislation. (2) Quite often the bill was buried beneath more controversial bills in a busy legislative session. (3) In many states the Act was passed late in the session along with myriad other "uncontroversial" laws. (4) Finally, no state undertook independent study to determine the medical facts about marijuana-they relied on information supplied by the Federal Bureau of Narcotics84 or a few lurid newspaper stories.85
4. Available Medical Opinion
In conjunction with the fourth conclusion from our state case histories of the passage of this Act, we should examine the extent of medical knowledge that might have been available to legislators had they wanted to conduct an independent evaluation of the dangers of the hemp drugs.
There were five influential sources for information about the effects of marijuana and hemp on humans. None of these were conducted with the scientific precision characterizing modern studies of drug effects. However, they each deserve mention here either because they deserved attention then or because they heavily influenced later commentators.
The first exhaustive study of the effects of cannabis and the other hemp drugs was done by the British in India. Their Indian Hemp Drugs Commission studied cannabis use among the native population in India in 1893 and 1894,86 and submitted its conclusions in a 500-page report. The Commission received evidence from 1,193 witnesses, including 335 doctors, and studied the relevant drug-related judicial proceedings and the intake records of every mental hospital in British India. As a result they concluded:
In regard to the moral effects of the drugs, the Commission are of opinion that their moderate use produces no moral injury whatever. There is no adequate ground for believing that it injuriously affects the character of the consumer. Excessive consumption, on the other hand, both indicates and intensifies moral weakness or depravity. Manifest excess leads directly to loss of self-respect, and thus to moral degradation. In respect to his relations with society, however, even the excessive consumer of hemp drugs is ordinarily inoffensive. His excesses may indeed bring him to degraded poverty which may lead him to dishonest practices; and occasionally, but apparently very rarely indeed, excessive indulgence in hemp drugs may lead to violent crime. But for all practical purposes it may be laid down that there is little or no connection between the use of hemp drugs and crime.87
It is quite clear, however, that the Indian Hemp Drug Commission88 Report was not disseminated in the United States until 1969 .
On the other hand, periodic reports of the Panama Canal Zone Governor's Committee to study the physical and moral effects of the use of marijuana were available to legislators before the passage of the Uniform Act. After an investigation extending from April to December 1925, the Committee reached the following conclusions:
There is no evidence that marijuana as grown here is a "habit-forming" drug in the sense in which the term is applied to alcohol, opium, cocaine etc. or that it has any appreciable deleterious in influence on the individual using it.89
In 1933, a similar Panama Canal Zone committee reported:
Delinquencies due to marijuana smoking which result in trial by military court are negligible in number when compared with delinquencies resulting from the use of alcoholic drinks which also may be classed as stimulants and intoxicants.90
About the time that the final Governor's Committee Report from the Canal Zone was completed, a New Orleans physician, Dr. Fossier, completed a study from which he concluded that marijuana was a highly dangerous drug with habit-forming properties.91 This piece would have remained relatively unnoticed due to the obscurity of the journal in which it was published had it not been picked up by the New Orleans District Attorney, Eugene Stanley, and made the basis for his own article-Marihuana as a Developer of Criminals92 which appeared in a law enforcement journal. Mr. Stanley stated:
It is an ideal drug to cut off inhibitions quickly. . . .
At the present time the underworld has been quick to realize the value of this drug in subjugating the will of human derelicts to that of a master mind. Its use sweeps away all restraint, and to its influence may be attributed many of our present day crimes. It has been the experience of the Police and Prosecuting Officials in the South that immediately before the commission of many crimes the use of marihuana cigarettes has been indulged in by criminals so as to relieve themselves from the natural restraint which might deter them from the commission of criminal acts, and to give them the false courage necessary to commit the contemplated crime.93
Mr. Stanley's article, based on no empirical data whatsoever, was widely used by courts to corroborate early legislation and by lobbyists to justify the later prohibitive legislation against the hemp drugs.94
In 1933 the following colloquy appeared in the Journal of the American Medical Association:
Effects of Cannabis
To the Editor:-I have been hearing about the smoking of cigarets dipped into or medicated with fluid extract of Cannabis americana. I can find nothing about the use of the drug by addicts. What is its immediate effect? What are its late effects? What is the minimum lethal dose? In what way does it differ from or resemble "muggles" in its action? While in Louisiana I was told that the use of marihuana causes dementia. Is this true' Please omit name.
M.D., Illinois.
ANSWER.-The effect of Cannabis americana is the same as that of Cannabis indica- and, of the effect of the latter, the books are so full that it is hardly necessary to detail them here. It must suffice here to say that cannabis, at the height of its action, usually produces hallucinations, with or without euphoria, and that these are followed by a deep sleep. Its most marked after-effect is the liability to the establishment of a craving for the drug, the habitual use of which undermines the intellectual qualities and the social value of the victim and leads to general physical deterioration. It is stated that smokers nearly always become imbecile in time. The minimum lethal dose is unknown, no fatalities having been reported in man. In view of the fact that one dose may kill one dog that has no marked effect on another, one must admit the possibility of a lethal effect on man. In view of what has been said, it must be admitted that "marihuana," which is merely another name for Cannabis indica, may cause dementia.95
The reply contains no indication how or where the persons who answered the question got their data. It seems clear from the nature of the response that the medical community was quite uncertain as to the effects of the drug in 1933.
In 1934, Dr. Walter Bromberg, senior psychiatrist at Bellevue Hospital, reported that marijuana was not a habit-forming drug and was far less responsible for crime than other drugs such as alcohol. In this study, Bromberg drew his data from examination of 2,216 inmates convicted of felonies.96 Dr. Bromberg pointed out that marijuana users tend to be passive in comparison to users of alcohol and that the hemp drugs should lead to crime only in cases of use by already psychopathic types. 97
This then was the extent of medical evidence available to laymen and legislators alike at the time the Uniform Narcotic Drug Act and the fast prohibitions of marijuana were enacted in most states. We can conclude the following from our brief review of the medical literature. (1) Little was really known about the effects of marijuana use-there were few studies and what studies there were had serious methodological flaws. (2) Even if the studies we record had been adequate methodologically, they appeared generally in obscure medical not widely read by laymen. (3) Of these studies, most found marijuana relatively harmless especially in contrast to use of alcohol. (4) None of these studies were considered in either the formulation or the passage of the Uniform Act in the states examined. And what is more astounding is that instead of consulting medical opinion, legislators relied on lurid newspaper accounts of marijuana, often provided by defendants in criminal prosecutions whose motivation was to use marijuana to escape criminal responsibility.
5. Provisions of the Uniform Narcotic Drug Act and Supplemental Virginia Marijuana Statute
Having studied the circumstances surrounding passage of the Uniform Act and similar legislation in several states between 1932 and 1937, we shall briefly summarize the provisions of those laws.
(a) Classification and Offenses.-The Virginia legislature made no changes in the Uniform Act as drafted by the Commissioners and did not include the supplementary marijuana provisions in passing that Act.98 In 1936, Virginia passed special marijuana legislation99. which defined cannabis exactly as did the definitional provision of the Uniform Act. Both the special marijuana statute in Virginia and the Uniform Act prohibited possession, transfer and cultivation of the drug100 but did not refer to the more specific acts that later came to be separated and punished more heavily, such as sale to a minor and possession of more than a certain amount.
(b) Penalties.-The Uniform Act contained no specific penalties for its violations; the matter of supplying the appropriate penalties was left to each state. Virginia punished first violations of its Uniform Act by a fine not exceeding $100 and/or imprisonment in jail not exceeding one year, and second and subsequent offenses by a fine not exceeding $1,000 and/or imprisonment for not more than five years in the penitentiary.101 The penalties for violation of Virginia's 1936 marijuana statute were stiffer than for violation of its Uniform Act. Each offense was punishable by imprisonment in the penitentiary for from one to ten years or by confinement in jail for not more than twelve months and/or by a fine up to $1,000, in the discretion of the court or jury.102
An analysis of penalties for violation of the marijuana statutes enacted in other states at about the same time indicates Virginia's penalties were atypically harsh. In New Jersey, for instance, the penalty for unlawful possession and sale of marijuana was that attaching to a high misdemeanor.103 In Rhode Island the penalty for unlawful possession was a fine of not more than $1,000 or imprisonment for not more than threeyears or both.104 For unlawful selling, Rhode Island provided a fine of not more than $2,000 or imprisonment for not more than five years or both.105 In Kentucky the penalty for a first offense violation was a fine of not less than $100 and not more than $500 or jail for not less than thirty days nor more than one year or both. For second and subsequent offenses the statute required imprisonment in the penitentiary for not less than one nor more than five years.106 Finally, West Virginia penalized a first offender by a fine not exceeding $100 or jail for not exceeding one year or both, and subsequent offenders by fine not exceeding $1,000 or imprisonment in the penitentiary not exceeding five years or both.107
This comparison indicates that Virginia penalties could be more severe than the average. Moreover, Virginia did not distinguish in penalty between possession and sale of the drug, and violation of Virginia's separate marijuana law could be more heavily penalized than violation of the Uniform Act.
1. See p. 989 supra
2. STATE LAWS 13.
Being unable to resolve that conflict of opinion, I have deemed it the safest course to leave the subject to be governed by the Federal statute until such time at least as it shall more clearly appear in what way that statute might be wisely supplemented by the state.
48. REPORT OF THE NEW YORK STATE BAR ASSOCIATION 133 [1925] (emphasis original) Commissioner Anslinger felt that the states had failed to do their part during this period:
Notwithstanding the limited power of the Federal Government, state officers immediately became imbued with the erroneous impression that the problem of preventing abuse of narcotic drugs was one now [after the Harrison Act] exclusively cognizable by the National Government, and that the Federal Law alone, enforced, of course, by Federal agencies only, should represent all the control necessary over the illicit narcotic drug traffic.
Anslinger, The Reason for Uniform State Narcotic Legislation, 21 GEO. L.J. 52, 53 (1932).
9 TERRY & PELLENS 969-91. See also 1928 HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS AND PROCEEDINGs 77-78 (handbooks hereinafter cited as 19- HANDBOOK].
10 King, The Narcotics Bureau and the Harrison Act, 62 YALE L.J. 736, 738 n.12 (1953). See also Schmeckbier, The Bureau of Prohibition in BROOKINGS INST. FOR GOVT RESEARCH, SERVICE MONOGRAPH.No. 57, at 143 (1929).
11 See JOINT LEGISLATIVE COMM. TO INVESTIGATE THE LAWS IN RELATION TO THE DISTRIBUTION AND SALE OF NARCOTIC DRUGS, FINAL REPORT, NEWYORK SENATE Doc. No. 3 (1918):
No fixed policy exists for the enforcement of the State statutes except in the larger cities of the State but their enforcement has been left to the desultory or spasmodic efforts of local police officials . . . .
Quoted in TERRY & PELLENS 834. See also FT. BECKER, OUTSIDERS 137-38 (1963).
12 Sandoz, Report on Morphinism to the Municipal Court of Boston, 13 J. CRIM. L. & CRIMINOLOGY 10, 54 (1922) (emphasis original)
13 See STATE LAWS 31-34.
14 Id. at 28.
15 See SPECIAL COMMITTEE TO INVESTIGATE THE TRAFFIC IN NARCOTIC DRUGS, U.S. TREASURY DEP'T, REPORT (1919)
16 H. ANSLINGER & W. TOMPKINS, THE TRAFFIC IN NARCOTICS 159 (1953).
17. 1925 HANDB00K 977-85.
18 Id. at 975.
19 Id. at 305.
20 Id.
21 Id. at 978.
22 1928 HANDBOOK 323-33.
23 Id. at 75-78.
24 Ch. 672, [1927] N.Y. Laws 1695-1703.
25 1928 HANDBOOK 325.
26 Id. at 76-77.
27 Id. at 77.
28 1929 HANDBOOK 332-40.
29 Id. at 83.
30 1930 HANDBOOK 485-97.
31 The provision, which made an exemption for medicinal or scientific use, read in part as follows:
Section 12. (Cannabis Indica, Cannabis Americana and Cannabis Sativa.) No person shall plant, cultivate, produce, manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound cannabis indica, cannabis americans, or cannabis sativa, or any preparation or derivative thereof, or offer the same for sale, administering dispensing or compounding . . . .
Id. at 493.
32 Id. There is no evidence of what objections had been raised. The authors feel certain that the dissenters were birdseed and hemp growers who also objected to the passage of the Marihuana Tax Act. See pp. 1054, 1059 infra.
33 1930 HANDBOOK 126-27.
34 1931 HANDBOOK 390-402.
35 Id. at 398-99.
36 Id. at 127-28.
37 1932 HANDBOOK 95-107.
38 Id. at 326.
39 See Tennyson, Uniform State Narcotic Law, I FED. B. Assn J., Oct. 1932, at 55; Illicit Drug Traffic, 2 FED. B. ASS'N J. 208-09 (1935) (indicating that the simple amendments for marijuana were designed by the Bureau so that other drugs could be added in the same way).
40 1932 HANDBOOK 95-107.
41 Id. at 107.
42 From our own computations, the total time spent by all the Commissioners discussing this Act from 1927 to 1932 could not have exceeded one hour. Moreover, the small number of states present at the time of the roll call, as compared with the 48 that voted on the Uniform Machine Gun Act the day before, indicates that concern for this Act was less than overwhelming.
43 Tax, Act Hearings 25-26.
44 See H. BECKER, OUTSIDERS 135 (1963).
45 NEW YORK CITY MAYOR'S COMMITTEE ON MARIHUANA, REPORT, reprinted in THE MARIHUANA PAPERS 277-307 (D. Solomon Ed. 1966) [hereinafter cited as LAGUARDIA REPORT].
46 id. at 292-94. The following exchange from the Hearings on the Marihuana Tax Act indicates the low cost of the drug in 1937:
Mr. Thompson: What is the price of marijuana?
Mr. Anslinger: The addict pays anywhere from 10 to 25 cents per cigarette. In illicit traffic the bulk price would be around $20 per pound. Legitimately, the bulk is around $2 per pound.
Tax Act Hearings 27.
47 Tax Act Hearings 20.
48 Mandel, Hashish, Assassins and the Love of God, 2 ISSUES IN CRIMINOLOGY I49 (1966).
49 N.Y. Times, Oct. 7, 1928, § 2, at 4, col. 6.
50 There is only one article even vaguely related to marijuana listed prior to 1935 Our Home Hasheesh Crop, LITERARY DIGEST, Apr. 3, 1926, at 64. See H. BECKER, OUTSIDERS 141 (1963).
51 From 1923 to 1935 there were only thirteen short articles related in any way to marijuana in the New York Times, even though New York City had banned marijuana as early as 1914 and the state legislature had acted in 1927.
52 BUREAU OF NARCOTICS, U.S. TREASURY DEP'T, TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 59 (1937). See also H. BECKER, OUTSIDERS 140 (1963).
53 N.Y. Times, July 24, 1936, at 6, col. 3.
54 In 1923 the New York Times, in a short article, reported: "The latest habit forcing drug . . . marijuana, which is smoked in a cigarette-was exhibited" at a women's club meeting. N.Y. Times, Jan. 11, 1923, at 24, col. 1.
55 N.Y. Times, Sept. 16, 1934, § 4, at 6, col. 3.
56 Id., Sept. 15, 1935, s 4, at 9, col. 4.
57 Tax Act Hearings 32.
58 Gomila, Marijuana-A More Alarming Menace to Society Than All Other Habit Forming Drugs, quoted in Tax Act Hearings 32-33. See also Gusfield, On Legislating Morals: The Symbolic Process of Designating Deviance, 56 CALIF. L. REv. 54, 69 (1968). 59 Dickson, Bureaucracy and Morality: An Organizational Perspective on a Moral Crusade, 16 SOCIAL PROB. 143 (1968).
60 H. BECKER, OUTSIDERS 137-45 (1963); see T. DUSTER, THE LEGISLATION OF MORALITY 17-19 (1970).
61 King, The Narcotics Bureau and the Harrison Act, 62 YALE L.J. 736, 737-39 (1953).
62 E.g., Anslinger, The Reason for Uniform State Narcotic Legislation, 21 GEo. L.J. 52 (1932); Tennyson, Uniform State Narcotic Law, I FED. B. ASS'N J., Oct. 1932. at 55 (Mr. Tennyson was Legal Advisor, Bureau of Narcotics).
63 See, e.g., N.Y. Times, Sept. 16, 193 1, at 37, col. 2.
64 It seems that if there were any public concern at all about the Uniform Act and its adoption, it should appear at those times in mention of the bill, marijuana or narcotic drugs in general. We used the papers of the larger cities under the assumption that they would usually contain the fullest and most accurate account of the business of state legislatures.
65 VA. HOUSE JOUR. 324 (1934).
66 VA. SENATE JOUR. 300-01 (1934).
67 Any manufacturer or manufacturers of cigarettes who shall employ opium, marihuana, loco weed, or any other sedative, narcotic or hypnotic drug, like chemical or substance, either in the tobacco used or paper wrappers of cigarettes, cigars, tobacco or any otherwise undiluted foodstuff or beverage, other than that advertised, sold and used as a drug or medicine, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than one hundred dollars nor more than one thousand dollars, or confined in jail not less than six months nor more than twelve months, or both, for each offense. Ch. 268, [1934] Va. Acts of Assembly 411 (H.B. 236).
68 Ch. 246, [1910] Va. Acts of Assembly 358 (codified as amended VA. CODE ANN. 18.1-345,-346 (Supp. 1970)).
69 On March 11, 1934, the day after the prohibition of use of opium in cigarettes was amended to include marijuana, the Richmond Times-Dispatch did not mention the action, and an article entitled "Bills Passed by Assembly" did not mention any marijuana or narcotic laws. Richmond Times-Dispatch, Mar. 11, 1934, at 4, col. 2. A March 12, six-column article, entitled "Vital Measures Passed in Busy 1934 Assembly" also did not mention either the narcotics legislation or the marijuana amendment. id., Mar. 12, 1934, at 1, col. 2.
70 Id., Feb. 7, 1934, at 4, col. 1.
71 Id., Mar. 6,1934, at 2, col. 5.
72 VA. HOUSE JOUR. 827 (1936); VA. SENATE JOUR. 498 (1936).
73 Ch. 212, [19361 Va. Acts of Assembly 361.
74 Richmond Times-Dispatch, Mar. 1, 1936, at 12, col. 3.
75 The Newark Star Ledger was surveyed from May 20 to June 10, 193 3, a period surrounding the passage of the statute, ch. 186, [1933] N.J. Acts 397, on June 5, 1933. On the day of the signing of the bill, there appeared a short article noting that the Uniform Narcotic Drug Act had become law. Newark Star Ledger, June 5, 1933, at 2. 76 The statute, ch. 2096, [1934] R.I. Acts 101, was approved April 26, 1934. The Providence journal was surveyed from April 10 to April 28, 1934, and on April 12 there appeared five sentences on the Uniform Act. providence journal, Apr. 12, 1934, at R. On April 21, the law was described in a short article summarizing the business of the legislative session. Id., Apr. 21, 1934, at 7. Neither article mentioned marijuana.
77 The Salem Oregon Statesman in the period from February 8 to February 28, 1935, had only one article dealing with drugs. Salem Oregon Statesman, Feb. 21, 1935, at 2, col. 2.
78 The Uniform Act was passed in West Virginia on March 8, 1935. Ch. 46, [1935] W. Va. Acts 179. The Charleston Daily Mail, which carried detailed legislative news, was surveyed from March I to March 20, 1935. On March 1, the legislature reconvened under a special calendar including the Uniform Act. During this period, the Act attracted little attention except for an editorial on March 7. Charleston Daily Mail, Mar. 7, 1935, at 10, co]. 1. The bill was mentioned in passing in two other stories on upcoming legislation, and in a report that a federal judge criticized West Virginia's failure to enact the Act. Id., Mar. 6, 1935, at 6, col. 4.
79 The Louisville Herald Post was surveyed from April 15 to June 15, 1934. The marijuana section of the Uniform Act became effective on June 14, 1934. Ch. 142, [1934] Ky. Acts 562. The only reference to the Act was Louisville Herald Post. June 6, 1934, at 10.
80 Id.
81 Charleston Daily Mail, Mar. 7,1935, at 10, col. 1.
82 Id., Mar. 11, 1935, at 1, col. 1, reports: "In the confusion of the closing hours Saturday night the legislature passed many bills, many of them unread and unprinted and not understood."
83 In Missouri, the passage of the Uniform Act was attended by pressure on the legislature stemming from a hysteria campaign in the St. Louis Star Times which contained 5 major articles urging the outlawing of marijuana and presenting lurid case studies of the evils of the drug. These articles were quoted in the Tax Act Hearings. See St. Louis Star Times, Jan. 17-Feb. 19, 1935.
84 See, e.g., N.Y. Times, Sept. 16, 1931, at 37, col. 2 (recording Commissioner Anslinger's statements on the need for uniform state laws to regulate marijuana).
85 In the Missouri case, the legislature, in response to the scare stories in the St. Louis Star Times, took only 10 days to present the law, hold quick hearings, and unanimously pass the anti-marijuana legislation.
86 INDIAN HEMP DRUGS COMMISSION 1893-94, REPORT: MARIJUANA (J. Kaplan ed. 1969).
87 Id. at 264.
88 Id. at vi.
89 Quoted in Marijuana Smoking in Panama, 73 THE MILITARY SURGEON 274 (1933).
90 Id. at 279.
91 Fossier, The Marijuana Menace, 84 NEW ORLEANS MEDICAL & SURGICAL J. 247 (1931).
92 Stanley, Marihuana as a Developer of Criminals, 2 Am. J. POLICE Sci. 252 (1931).
93 Id. at 256.
94 See Tax Act Hearings 23-24, 37.
95 100 JA.M.A. 601 (1933).
96 Bromberg, Marijuana Intoxication: A Clinical Study of Cannabis Sativa Intoxication,
97 Am. J. PSYCHIATRY 303 (1934).
97 Id. at 309; see Facts and Fancies About Marijuana, LITERARY DIGEST, Oct. 24, 1936, at 7-8. This presentation begins by digesting Dr. Bromberg's article for laymen:
It is clear from this study [of 2,216 criminals convicted of felonies] that in this region the drug is a breeder of crime only when used by psychopathic types in whom the drug allows the emergence of aggressive, sexual or antisocial tendencies. . . . It is quite probable that alcohol is more responsible as an agent for crime than is marihuana.
The article continues:
The following facts stand out in social and medical reports:
1. Marihuana is not a habit-forming drug, as is heroin or opium.
2. It prolongs sensations; it is in high favor as an aphrodisiac.
3. It is the most inexpensive of drugs; marihuana cigarettes usually selling at from three to twenty-five cents each.
The article then describes the effects of marijuana:
After smoking from one to three "reefers," if one has not been told what to expect, the first effects of the drug pass almost unnoticed-nothing, perhaps, but a slight twitching of muscles of the neck, back or legs. The mind remains calm and clear. Suddenly, without apparent cause, a chance remark . . . sends the subject into a spasm of violent laughter.
Becoming calm again, while the drug continues to exert its weird effects, the smoker finds ideas crowding through his brain with bewildering rapidity; those around him become slow-dull. Nor is the language of his own tongue swift enough to keep pace with his lightning thoughts.
Soon the self-esteem of the smoker begins to grow in like proportion. . . .
Paradoxically, trifling discomforts become unbearable evils; the flare of a match near-by brings a resentment that is immediately transformed into an overwhelming desire for revenge. But before the "reefer man" could possibly climb to his feet, or even reach a hand for a gun or knife, new thoughts have come crowding in....
Above all other distinguishing effects of marihuana intoxication is the fact that all normal conceptions of time and space are lost.
As in the split-second dream that seems to last the night through, time seems of interminable length; the clock stands still for days.
Vision, too, takes on new concepts. Inconsiderable distances become tremendous....
Yet, throughout the intoxication, there is constant awareness that the strange fancies rushing through the mind are not natural, but purely the effects of the drug; unlike the opium-cater, he is acutely conscious of those about him. He has many of the sensations of the gay "drunk" at the ball.
Describing a pot-party:
There is little noise; windows are shut, keeping the smell of smoking weeds away from what might be curious nostrils.
Nor is there any of the yelling, dashing about, playing of crude jokes or physical violence that often accompany alcoholic parties; under the effects of marihuana, one has a dread of all these things.
98 Ch. 86, [1934] Va. Acts of Assembly 81.
99 Ch. 212, [1936] Va. Acts of Assembly 361.
100 Id.
101 Ch. 86, S 20, [1934] Va. Acts of Assembly 90.
102 Ch. 212, § I (c), [ 1936] Va. Acts of Assembly 362. The penalty for violation of ch. 268, [1934] Va. Acts of Assembly 411, which prohibited the use of marijuana in the manufacture of cigars and cigarettes, was confinement in jail for from 6 to 12 months and/or a fine of from $100 to $1000.
103 Ch. 186, § 12, [1933] N.J. Laws 41 1.
104 Ch. 2096, S 14, [19341 R.I. Acts III.
105 Id. § 15.
106 Ch. 142, [1934] Ky. Acts 562.
107 Ch. 46, § 2 3, [1935] W. Va. Acts 192.
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