Chapter 3
Illegal Almost Everywhere

Marijuana is now illegal in most countries of the world. In the United States it is illegal to use, possess, grow, or sell marijuana in about three-quarters of the states. Many people ignore these laws, however; in 2000 an average of one marijuana smoker was arrested every forty-five seconds in America.

Recently, though, the illegal status of marijuana has come under ever-increasing criticism. This is due largely to a growing belief that outlawing marijuana, a drug many experts say is less harmful than alcohol or tobacco, has been an entirely unsuccessful and exceedingly expensive experiment.

Before Marijuana Was Illegal

In the United States, marijuana and other substances derived from the cannabis plant were first made illegal in 1937, but the story leading up to the various cannabis laws goes back to the turn of the twentieth century. In 1900 between 2 and 5 percent of the U.S. population was addicted to morphine, a drug that was the primary ingredient in numerous unregulated medications known as patent medicines. These medicines promised to cure just about every ailment from headaches to indigestion. Because of the strong pain-killing ability of morphine, the medications seemed to work. When the pain associated with disease or injury began to come back, an individual had only to go to the local store and buy another bottle of the patent medicine. Morphine is a highly addictive drug, however, so it was not long before people were buying their patent medicines frequently, and not necessarily because they were still in pain; instead, they bought the medicine to avoid the agony of withdrawal.

The federal government, alarmed at the growing number of unintentionally addicted citizens, responded in 1906 with the Pure Food and Drug Act. This law created the U.S. government's Food and Drug Administration (FDA). The FDA had the task of approving all foods and drugs meant for human consumption before they could be sold. The very first job of the FDA was to remove medicines containing morphine and other opium derivatives from the open market and make them available only by a doctor's prescription. Ultimately, the FDA's actions reduced the number of customers so much that the patent medicine manufacturers went out of business.

The Harrison Act of 1914

The Pure Food and Drug Act of 1906, which was not a criminal law, was extremely effective and reduced the level of addiction more than any of the many criminal drug laws enacted since. One such law, the Harrison Act, enacted in 1914, represented the first time drug use had ever been defined as a crime. This law applied only to derivatives of the drug opium (including morphine) and to derivatives of the coca plant (including cocaine). Although marijuana was not specifically covered by the Harrison Act, this unusual law is important in the history of marijuana illegality because it set the pattern, or precedent, for the federal drug legislation that followed.

The Harrison Act was unusual in that it was actually a tax law, and for the next fifty years American drug laws followed this model, indirectly making the use of certain pain medications a criminal act. The law taxed the nonmedical use of drugs like morphine and cocaine, strong painkillers to which up to 5 percent of the American population was addicted in 1900. The tax for nonmedical use of these drugs was far more than the cost of morphine or cocaine. People who used the drugs without paying the tax were subject to criminal prosecution.

Widespread Illegality

The Harrison Act paved the way for the national prohibition of cannabis. Between 1914 and 1937, twenty-seven different states made marijuana illegal. The states that passed these laws fell into two groups. The first states to pass marijuana laws were in the western part of the country. These states had recently experienced a large immigration of Mexican citizens, who had come north from their country in search of better economic conditions. They were mostly farmworkers, and some of them brought marijuana with them. Most of the non-Hispanic people in the western part of the United States mistrusted the new immigrants and knew nothing about marijuana. Consequently the first anti-marijuana laws were more of an expression of hostility toward the newly arrived Mexican community than opposition to the marijuana some of them used.

A second group of states that enacted criminal laws against the use of marijuana were in the northeastern part of the country. In these states there were few Mexicans, but northeastern residents had heard about the influx of Mexican immigrants out west and about the drug marijuana. These states had just begun to get the morphine addiction problem under control and feared that addicts, cut off from morphine, would substitute some other drug that was not yet controlled. In the absence of any research or medical information, marijuana seemed like a possible candidate for this substitution. So even though marijuana use was virtually unknown in the Northeast at that time, these states also outlawed it.

The Marihuana Tax Act

The law that made nonmedical use of marijuana (spelled marihuana in 1937) illegal was called the Marihuana Tax Act and was passed by Congress in 1937. How that law came to pass is a curious chapter in American lawmaking.

Whenever Congress considers a proposal for a new law, a congressional committee holds hearings to determine the facts surrounding the proposed law. Typically, these hearings require testimony from experts on all sides of the question, and it usually takes at least a few weeks to thoroughly examine all aspects of the proposed new law. Hearings on the new marijuana law, however, lasted only three days, and less than two hours of that time was devoted to testimony. Years later, when professors Richard Bonnie and Charles Whitebread were doing research for their book about the history of the marijuana laws, they were surprised to discover how little discussion took place in Congress before the new marijuana law was passed. They report:

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. . . . It took them four months to finally honor our request because 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. They had to break the bookshelf open because it had slid down inside.⁷

Only a few people testified during that brief 1937 hearing. The first speaker was Harry Anslinger, the newly named commissioner of the Federal Bureau of Narcotics. Anslinger gave a very short testimony based on hearsay and unproven reports, which he summed up with the words, "Marihuana is an addictive drug, which produces in its users insanity, criminality, and death."⁸

Since outlawing marijuana would make all cannabis cultivation illegal, Congress also wanted to hear testimony from representatives of the rope, paint, and birdseed industries that used hemp for their products. Representatives from the rope and paint industries testified that they could use other raw materials in place of hemp. The representative of the birdseed industry, however, said no other seeds produced the glossy feathers that hemp seed did and they wanted to keep using hemp seed. As a result of that testimony, birdseed companies later received an exemption from the Marihuana Tax Act. They were allowed to use imported hemp seeds that have been treated so they do not sprout. That exemption remains in effect today.

Following testimony from Anslinger and representatives of the hemp industries, the congressional committee heard from the medical community. The first medical testimony came from James C. Munch, a pharmacology researcher at Temple University who studied the effects of drugs. Munch testified that he had injected into the brains of three hundred living dogs what he claimed was the active ingredient in cannabis, and that two of those dogs had died.

Researchers today argue that this was highly questionable science. The standard way scientists confirm new research is to publish the results of an experiment in a scientific journal and have those results independently reproduced by a number of other scientists. Munch's experiments with dogs and marijuana were never published, and no other scientist ever reproduced his results. Further, the true active ingredient in cannabis was not even identified until after World War

The Father of Marijuana Prohibition

When Harry J. Anslinger became the commissioner of the Bureau of Narcotics, he was already known for his very strong feelings about drug abuse. While the alcohol Prohibition Act was still in effect during the 1930s, for example, he criticized the law as being lenient; it penalized only people who sold, manufactured, and transported liquor, not people who bought and used it. Anslinger felt that the law should be changed so that buyers and consumers of liquor would also be punished, and he proposed harsh punishments to force the public to obey the liquor laws. He thought that a first-time conviction for buying alcohol deserved a jail term of not less than six months and a fine of not less than $1,000. He felt a second violation deserved imprisonment for two to five years and a fine of $5,000 to $50,000. Although his philosophy of punishing consumers of alcohol was not shared by most of Congress, he did manage to influence the lawmakers in that direction when it came to other substances, including marijuana.

The United States was suffering through the Great Depression when Anslinger became commissioner of the Bureau of Narcotics in 1930. It was a difficult time to get funding for any kind of project, even for law enforcement. To convince Congress to grant the bureau more funds, the commissioner had to prove there was a dangerous new drug threatening the country, one that required immediate federal attention and more money for the Bureau of Narcotics. He believed that dangerous new drug was marijuana.

Anslinger knew the power of public opinion, and he decided to use it. Under his guidance the bureau produced frightening stories about the evils of marijuana. These tales appeared in virtually every newspaper and publication. Lurid posters went up on billboards, in government offices, and on public transportation. And movies like Reefer Madness amplified the fear of marijuana that was growing in America. Although Anslinger, through his vast media campaign, almost single-handedly created the idea of a "marijuana problem" in the United States, much of what he did was the result of a sincere conviction that marijuana posed a danger to the country.

II in a laboratory in Holland. In 1937, however, no one else had done any research on marijuana. Thus, no one on the committee objected to Munch's testimony, and his statements were accepted as fact.

Following Munch, William C. Woodward, who was both a lawyer and a doctor, testified. Woodward was the top legal adviser for the American Medical Association (AMA), the organization that represents physicians in the United States. Testifying on behalf of the AMA, Woodward noted that the AMA did not consider Munch's research conclusive. Further, he said that the AMA had no other evidence of the harmfulness of marijuana. Woodward summed up his testimony with the words, "The American Medical Association knows of no evidence that marihuana is a dangerous drug."⁹

Politics Get in the Way

When the hearing ended, the committee shared what it had learned with the rest of the members of Congress, a common practice used before voting on a new law. Theoretically this is a good system, but sometimes political motivations prevent it from working the way it is intended to.

In 1937 Democratic President Franklin D. Roosevelt was in the middle of a successful push to get Congress to pass the huge package of economic and social reform legislation that came to be known as the New Deal. The overwhelmingly Democratic Congress was helping the president by attempting to discredit all opposition to New Deal legislation. The AMA, however, felt that the New Deal was bad for the medical profession and opposed most of the new legislation. Since the AMA constantly opposed the New Deal from 1932 to 1937, the Democrats who made up most of the marijuana hearing committee treated the AMA as their political enemy. This became obvious during the hearings. Following Woodward's statement that the AMA had found no evidence of marijuana's harmfulness, one of the New Deal congressmen went so far as to say, "Doctor, 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."¹⁰

So despite the AMA's opposition, the Marihuana Tax bill passed from the committee to the floor of Congress for debate and voting. The debate in the House of Representatives lasted only a few minutes. Only one pertinent question was asked from the floor: Did anyone talk to the AMA and get their opinion? Representative Carl Vinson, one of the New Deal Democrats who supported the marijuana bill, answered the question. Getting both the name of the AMA representative and the facts wrong in order to push the new law through, Vinson said, "Their Doctor Wharton gave this measure his full support . . . [as well as] the approval [of] the American Medical Association."¹¹

Thus, the bill passed and went to the Senate, where it passed without debate. President Roosevelt immediately signed the bill into law, making marijuana essentially illegal in the United States.

Soon after the passage of the Marihuana Tax Act, Commissioner Anslinger appointed James C. Munch, the researcher who had injected marijuana into dog brains, to be the Federal Bureau of Narcotics' expert on marijuana. He held that position until 1962.

A Temporary Comeback for Hemp

In 1942, only five years after the Marihuana Tax Act outlawed all cultivation of cannabis, the United States was embroiled in World War II and found itself cut off from Asian sources of cheap hemp fiber. The country's warships needed a lot of hemp for rope, however, so the Marihuana Tax Act of 1937 was ignored while the federal government went into the business of growing hemp on large farms throughout the Midwest and the South.

Hemp cultivation ceased again when the war ended, but the results of that large-scale cultivation can still be seen in the extensive amount of wild hemp, called ditchweed, that reappears each summer throughout the Midwest. Although this ditchweed contains very little THC, various government and police agencies go to great trouble and expense to remove it every year.

The "Insane Killer" Drug

At the congressional committee hearing in 1937, Harry Anslinger, the commissioner of the Bureau of Narcotics, had said that marijuana causes, among other things, insanity. He was not just making this up. In fact, at that time there had been several well-publicized murder trials where the defendants' sole defense had been not guilty by reason of insanity due to having used marijuana prior to the commission of the crime.

To make the "innocent by reason of insanity" defense work, a defense lawyer must produce an expert witness who will testify that the defendant was truly insane, even if temporarily. During the 1930s and '40s when scientific research on marijuana was virtually nonexistent, there was only one witness in the country who could be called on to testify about the effects of marijuana. It was Munch, Anslinger's own marijuana expert who claimed to have injected the drug into dogs.

The most famous of the "defense by reason of insanity from marijuana" trials involved two women who had robbed and killed a bus driver, claiming that they committed the crime because they had gone temporarily insane after smoking marijuana. During the trial Munch justified his expert status by testifying that not only had he conducted the experiments on dogs and testified before Congress about it, but that he had tried the drug himself and it had made him temporarily insane. In this high-profile trial, he testified that after smoking two puffs of marijuana, he hallucinated that he had become a bat and flown around the room for fifteen minutes, ending up at the bottom of a giant inkwell.

Following Munch's sensational testimony, one of the defendants took the stand. She claimed that while she was under the influence of marijuana, she imagined that she grew vampirish fangs that dripped with blood. These testimonies convinced the jury that marijuana causes temporary insanity.

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In another murder trial during the same period, the defendant did not even claim to use the drug. He declared that there had been a bag of marijuana in the room and it had put out "homicidal vibrations" that made him kill dogs, cats, and ultimately two police officers. In the years immediately following the passage of the Marihuana Tax Act, where the marijuana defense was used, the defendants in those and other murder trials were all found innocent by reason of insanity.

Meanwhile, Anslinger was beginning to develop doubts that marijuana was the culprit in the murder cases, and he was bothered by the successful marijuana insanity defenses. He wrote to Munch and told him that if he did not stop testifying for the defense, he would be fired as the official marijuana expert of the Federal Bureau of Narcotics. The pharmacologist stopped testifying, and since there were no other marijuana "experts" around at the time, the "insanity by marijuana" defenses ended. By then, though, marijuana had become known as a drug that turned people into insane killers.

The Boggs Act of 1951

By 1950 the notion that marijuana was an addictive drug that caused insanity, criminality, and death was no longer accepted by many people. In the years since the marijuana hysteria of the 1930s, and despite the fact that the drug was illegal, marijuana use had continued to spread. As a result, more people witnessed its effects firsthand, and few believed the stories about insanity, criminality, and addiction. However, there was a growing sense in the United States that drug use among teenagers was increasing. Congress responded by introducing a new law, the Boggs Act, which carried much harsher penalties for marijuana use.

To pass a new law with harsher penalties, it was necessary to demonstrate that marijuana, if not the cause of insanity, criminality, and addiction, was nevertheless dangerous. As before, a congressional committee heard testimony. First a doctor who ran a government narcotics rehabilitation clinic in Kentucky testified that the medical community knew that marijuana was not an addictive drug and that it did not produce insanity, criminality, or death. The next witness, Commissioner Anslinger, reversed his earlier position, the one he expressed in his 1937 testimony, and agreed that marijuana was not addictive and did not produce insanity or death. Instead, he said, marijuana use is the first step to heroin addiction. That statement introduced the world to the idea that marijuana was the "gateway" to heroin, meaning that using marijuana makes the user more likely to use heroin, a highly addictive drug. In addition to introducing the concept of marijuana as a gateway drug, this represented the first time that it had been categorized with more dangerous drugs.

The Boggs Act had one more reason compelling Congress to vote for it. In 1951 the Cold War was in full swing, and many Americans feared that communist spies and infiltrators were everywhere. Newspapers published hundreds of articles asserting that enemies of the United States were trying to break down the moral fiber of the country's youth. The articles claimed that one way the country's enemies were supposedly doing this was by getting America's youth so hooked on drugs they would be incapable of defending their country should the need arise. Suddenly increasing the penalties for using or selling all nonmedical drugs sounded like a patriotic duty. The Boggs Act passed easily.

Ultimately, the Boggs Act had international consequences. World War II was over and the United States was the most economically and militarily powerful country in the world. Consequently, American laws influenced the laws of other countries. During the 1950s a flurry of new international agreements and laws in almost every country in the world were passed with little reason other than the Americans were doing it. These agreements, influenced by America's Boggs Act, led to outlawing nonmedical use of drugs, including marijuana, in most countries.

The Daniel Act of 1956

By 1956 the United States was responding with shock and anger to a new awareness of organized crime organizations like the Mafia. And Americans were learning for the first time that much of the huge profits going into the pockets of these criminal organizations came from the sale of illegal drugs.

Congress and most state governments responded to the booming illegal drug business by further increasing the penalties for sale and possession of all drugs. One federal law, the Daniel Act of 1956, greatly increased the penalties of the Boggs Act by requiring the courts to give much longer sentences for drug crimes. The Daniel Act included marijuana because people still feared it was the "gateway" to drugs like heroin and cocaine.

Many states followed the Daniel Act with their own versions, and like the new federal law, these provided harsher penalties than previous laws. Many states passed their own laws making possession of any drug the most heavily penalized crime in the state. Virginia's law, for example, required a mandatory minimum sentence of twenty years without possibility of parole, probation, or suspension of sentence for anyone found guilty of possessing any drug for nonmedical use.

The Dangerous Substances Act of 1969

Despite these new harsher laws, the illegal drug business continued to grow. In response, still another new federal law, the Dangerous Substances Act, was passed in 1969. This law took all the drugs known at that time (except alcohol and tobacco) and divided them into groups, or "schedules," based on what the government believed to be their medical value and potential for abuse. (It was also about this time that the government stopped calling all illegal drugs narcotics. This represented an official recognition that narcotic was the medical term for a drug that stops pain or puts people to sleep, a description that did not include many of the drugs being used in nonmedical ways.)

According to the Dangerous Substances Act, which has been modified over the years but is still largely in effect today, the most dangerous drugs are placed in schedules 1, 2, or 3. Schedule 1 drugs are those defined as having little or no legitimate medical use and a high potential for abuse; marijuana, hashish, LSD, and heroin were placed in this group. Schedule 2 drugs are those with accepted but limited medical value and a high potential for abuse, like cocaine, barbiturates, and amphetamines. Schedule 3 drugs are those with high medical value and a high potential for abuse, like morphine and codeine. The Dangerous Substances Act also provides penalties for illegal use, manufacture, and sale of the various drugs.

The Dangerous Substances Act of 1969 was the first federal drug law that had the benefit of some good new scientific research. It was also the first time an American law lowered most of the penalties for nonmedical use of drugs instead of raising them.

Recent Trends in Marijuana Laws

In the years immediately following the Dangerous Substances Act, the national attitude toward marijuana softened and penalties actually declined in many states; by 1980 eleven states had decriminalized possession of small amounts of cannabis for personal use. Declining penalties were accompanied by a decline in the number of people using the drug, a fact that challenged the popular belief that lesser penalties lead to greater use. In 1984 marijuana use (including both infrequent and frequent users) was 26.3 percent nationwide. In the eleven states that had decriminalized marijuana, it was almost the same, 27.3 percent. By 1988, after two decades of decreasing penalties and decriminalization in eleven states, the percentages of users had dropped to 15.4 nationwide and 16.1 in the states that had decriminalized marijuana. Instead of use climbing with lesser penalties, it had been cut almost in half.

As more legislators saw the significance of the statistics, some began to look favorably on decriminalization of marijuana use, meaning that individuals would no longer be arrested for possession of small amounts of cannabis. As of mid-2001 twelve states (Alaska, California, Colorado, Maine, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon) had decriminalized possession of small amounts of marijuana, and six others (Florida, Massachusetts, New Jersey, Texas, West Virginia, and Wisconsin) were poised to do the same. In many of those states, there is a small fine (up to $100) for possession, the result of a federal government requirement for minimum punishment standards.

International laws are changing, too, as the decriminalization movement grows around the world following the success of a Netherlands program that since 1976 has essentially allowed the personal use of cannabis. Following the adoption of the new policy toward marijuana use, the Netherlands saw a 40 percent decrease in marijuana use and an even larger drop in heroin addiction. These results led many other European countries, Canada, Australia, New Zealand, South Africa, and Jamaica, among others, to pass or consider decriminalization laws.

Even as marijuana laws are changing in the United States and elsewhere, the drug remains illegal almost everywhere. And as long as marijuana remains illegal, some people will continue to press for laws that legalize and regulate its use.