Chapter 56. Marijuana is outlawed

Following the legalization of weak beer in 1933 and the return of hard liquor the following year, the modest, localized popularity of marijuana during the Prohibition years might have declined further. But additional legal developments intervened.

On January 1, 1932, the newly established Federal Bureau of Narcotics, a unit in the Treasury Department, took over from the Alcohol Unit of the department the enforcement of the federal anti-opiate and anti-cocaine laws; and former Assistant Prohibition Commissioner Harry J. Anslinger took over as commissioner of narcotics. Commissioner Anslinger had no legal jurisdiction over marijuana, but his interest in it was intense. The Bureau's first  Annual Report under his aegis warned that marijuana, dismissed as a minor problem by the Treasury one year earlier, had now "come into wide and increasing abuse in many states, and the Bureau of Narcotics has therefore been endeavoring to impress on the various States the urgent need for vigorous enforcement of the local cannabis laws."

During his first year as commissioner of narcotics, Mr. Anslinger secured from the National Conference of Commissioners on Uniform Drug Laws the draft of a "Uniform Anti-Narcotics Act," designed for adoption by state legislatures. The conference failed to include a ban on marijuana in the main text of this model law; but it did supply to the states an "optional text applying to the restriction of traffic in Indian hemp." Commissioner Anslinger and his bureau urged on the states the adoption of this "optional text" as well as the basic act; and state after state complied.

Commissioner Anslinger's report for 1935 noted: "In the absence of Federal legislation on the subject, the States and cities should rightfully assume the responsibility for providing vigorous measures for the extinction of this lethal weed, and it is therefore hoped that all public-spirited citizens will earnestly enlist in the movement urged by the Treasury Department to adjure intensified enforcement of marijuana laws."

By 1937, forty-six of the forty-eight states as well as the District of Columbia had laws against marijuana. Under most of these state laws, marijuana was subject to the same rigorous penalties applicable to morphine, heroin, and cocaine, and was often erroneously designated a narcotic.

Commissioner Anslinger's next campaign was for a federal marijuana law. Professor Howard S. Becker, a sociologist now at Northwestern University, has documented in detail the magazine phase of this campaign.  The Readers' Guide to Periodical Literature, Professor Becker notes, failed to list a single article on marijuana from January 1925 through June 1935. Four such national magazine articles, however, were indexed for the period July 1935 through June 1937, and seventeen more were indexed between July 1937 and June 1939. The production of anti-marijuana articles then tapered off again to four between July 1939 and June 1941, with one lone article indexed in the period July 1941 to June 1943.

Of the seventeen articles during the peak of the drive, Professor Becker continues, "ten either explicitly acknowledged the help of the Bureau in furnishing facts and figures or gave implicit evidence of having received help by using facts and figures that had appeared earlier, either in Bureau publications or in testimony before the Congress. . . ."

Typical of the articles in this magazine campaign was one signed by Commissioner Anslinger himself, in collaboration with Courtney Ryley Cooper, which appeared in the  American Magazine for July 1937. It contained such atrocity stories as the following:

An entire family was murdered by a youthful [marihuana] addict in Florida. When officers arrived at the home they found the youth staggering about in a human slaughterhouse. With an ax he had killed his father, mother, two brothers, and a sister. He seemed to be in a daze. . . . He had no recollection of having committed the multiple crime. The officers knew him ordinarily as a sane, rather quiet young man; now be was pitifully crazed. They sought the reason. The boy said he had been in the habit of smoking something which youthful friends called "muggles," a childish name for marihuana.

Four of the sixteen other articles indexed in  Readers' Guide for the peak period contained this same story.

Many readers in the 1970s, familiar with the mild, often calming effect of marijuana on young people in their own neighborhoods, will dismiss these accounts of wild crimes of violence committed under the influence of the drug as sheer nonsense or malicious propaganda–– but this is far from certain. LSD, it will be recalled, was converted as a result of anti LSD publicity from a relatively bland drug before 1962 to a drug that evoked the most bizarre behavior after that date. It is quite possible that marijuana effects were similarly altered during the 1920s and 1930s that some children solemnly warned in advance that marijuana would madden them and cause them to commit the most awful crimes, including crimes of violence, really did lose self-control and commit such crimes thereafter when they smoked marijuana. Whether or not there was some truth in the anti-marijuana stories, however, the were certainly exaggerated–– as one of the cases reported in a 1937 bulletin of the Foreign Policy Association demonstrates.

The cases presented in the bulletin were described as "culled at random from the files of the U.S. Bureau of Narcotics." One such story concerned a young man identified as "J. O.," who was said to have confessed that he murdered a friend and put his body in a trunk "while under the influence of marijuana."

The story turned out to be partly true. Dr. Walter Bromberg, psychiatrist-in-charge at the Psychiatric Clinic, New York County Court of General Sessions, described the case of J. 0. in greater detail in a 1939 issue of the  Journal of the American Medical Association. No doubt J. 0. really had murdered a friend and stuffed his body into a trunk. But the remaining details differed notably from the bureau's version. "J. 0. was examined in this clinic," Dr. Bromberg reported; "although he was a psychopathic liar and possibly homosexual, there was no indication in the examination or history of the use of any drug. The investigation by the probation department failed to indicate use of the drug marijuana." The only known relationship of the crime to drugs was that the victim was a  heroin addict.

Dr. Bromberg's debunking of the story of J. O., however, did not retire that story from circulation. It bobbed up again, with additional verisimilitudinous details, in the United Nations  Bulletin on Narcotics for April-June 1966, in an article by Dr. James C. Munch, identified as "Member, Advisory Committee, U.S. Bureau of Narcotics." In this version J. 0. was quoted as saying: "I was fearless after smoking marijuana cigarettes but would not have done this without marijuana."

The news media frequently may omit mentioning that a criminal was drunk on alcohol when he committed his crime, but when marijuana (or LSD) is supposedly involved in a case, that fact is often given prominence. Dr. Lawrence Kolb has supplied a striking example: "Two young men had some drinks of whiskey in a hotel room where they were celebrating. They then smoked a marijuana cigarette, after which they had some more whiskey and left the hotel room. Shortly thereafter, one of the men shot another man for some trifling reason. This story was played up in the press as a vicious, marijuana-induced murder."

Commissioner Anslinger's drive for federal as well as state anti-marijuana legislation shifted into high gear in 1937, when his superiors in the Treasury Department sent to Congress the draft of a bill that became the Marijuana Tax Act of 1937. This bill, modeled on the Harrison Narcotic Act of 1914, did not on its face actually ban marijuana. It fully recognized the medicinal usefulness of the substance, specifying that physicians, dentists, veterinarians, and others could continue to prescribe cannabis if they paid a license fee of $1 per year, that druggists who dispensed the drug should pay a license fee of $15 a year, that growers of marijuana should pay $25 a year, and that importers, manufacturers, and compounders should pay $50 a year. Only the  nonmedicinal, untaxed possession or sale of marijuana was outlawed.

At hearings on this bill before Senate and House committees, Commissioner Anslinger appeared as the chief witness, buttressed by members of his staff. He told horror stories similar to the ones in his  American Magazine article quoted above. Another witness was the prosecuting attorney from New Orleans, who told of how criminals used marijuana in that city. In addition to stressing the relationship between marijuana and crime, witnesses testified that marijuana "addicts" went crazy.

Curiously, Commissioner Anslinger himself refuted one charge against marijuana now commonly made. In the course of the House hearings, Representative John Dingell of Michigan remarked, "I am just wondering whether the marijuana addict graduates into a heroin, an opium, or a cocaine user."

Commissioner Anslinger replied, "No, sir; I have not heard of a case of that kind. The marijuana addict does not go in that direction."

By 1955, however, Commissioner Anslinger was testifying before a Senate committee that "eventually if used over a long period, [marijuana] does lead to heroin addiction."

No  medical testimony in favor of the proposed federal anti-marijuana law was presented at the 1937 Congressional hearings. Indeed, the only physician to testify was a representative of the American Medical Association–– and he  opposed the bill. Marijuana, he pointed out, was a recognized medicine in good standing, distributed by leading pharmaceutical firms, and on sale at many pharmacies. At least twenty-eight medicinal products containing marijuana were on the market in 1937.

Although the proposed federal law preserved the right of physicians to prescribe marijuana and of pharmacists to dispense it, an editorial in the  Journal of the American Medical Association for May 1, 1937, vigorously opposed the legislation.

The medical profession today seldom dispenses the drug [the  JAMA editorial conceded]. Many physicians will, however, probably feel it necessary to preserve their right to use it if and when circumstances make it advisable to do so and accordingly will feel compelled to pay the tax. Pharmacists presumably seldom have calls for cannabis, but they must nevertheless be prepared to dispense it when a call does come, so they will have to pay the tax. . . . The million dollars to be collected annually by the federal government will no doubt be charged as a part of the cost of practicing medicine, dentistry, and pharmacy. So also will the expense of record keeping and reporting, called for under the bill. All this will in the end be paid for by the patient and thus will go to swell the cost of sickness. Thus the sick and injured must contribute toward federal efforts to suppress a habit that has little or no relation to the use of cannabis for medicinal purposes and that is already within the jurisdiction of the several states.

The  JAMA editorial also took a dim view of the likelihood that the new law would succeed in its purpose of discouraging the  nonmedicinal use of marijuana. Its words have a prophetic ring:

After more than twenty years of federal effort and the expenditure of millions of dollars, the opium and cocaine habits are still widespread. The best efforts of an efficient bureau of narcotics, supplemented by the efforts of an equally efficient bureau of customs, have failed to stop the unlawful flow of opium and coca leaves and their compounds and derivatives, on which the continuance and spread of narcotic addiction depends. The best efforts of the Public Health Service to find means for the prevention and cure of narcotic addiction have not yet accomplished that end. Two federal narcotic farms, operating under the supervision and control of the U.S. Public Health Service, cannot yet guarantee the cure of narcotic addiction. What reason is there, then, for believing that any better results can be obtained by direct federal efforts to suppress a habit arising out of the misuse of such a drug as cannabis? Certainly it is almost as easy to smuggle into the country and to distribute as are opium and coca leaves. Moreover it can be cultivated in many parts of the United States and grows wild in field and forest and along the highways in many places.

The proposed federal anti-marijuana law was also considered at the June 1937 convention of the American Medical Association in Atlantic City. The "Report of the AMA Committee on Legislative Activities" at that convention noted:

There is positively no evidence to indicate the abuse of cannabis as a medicinal agent or to show that its medicinal use is leading to the development of cannabis addiction. Cannabis at the present time is slightly used for medicinal purposes, but it would seem worth while to maintain its status as a medicinal agent for such purposes as it now has. There is a possibility that a restudy of the drug by modern means may show other advantages to be derived from its medicinal use. *

Your committee also recognizes that in the border states the extensive use of the marijuana weed by a certain type of people would be hard to control.

* This "restudy of the drug by modern means" has now begun. At the University of Vermont College of Medicine, for example, researchers announced in August 1970 that they were testing THC for the alleviation of pain in cancer patients. The project was approved by local medical and legal officials, the United States Food and Drug Administration, and the National Institute of Mental Health. The THC was offered for voluntary oral use to patients at the Medical Center Hospital of Vermont. "The background for this study," the hospital's newsletter explained, "is the fact that cancer patients frequently require large doses of sedatives, antidepressants and pain killers toward the terminal part of the illness. Search is therefore being made for a drug which could produce mood elevation in cancer-patients without undesirable side effects." This study was never completed.

In Britain, too, the reevaluation of cannabis as a medicine is under way, with government approval. The Baroness Wootton Subcommittee of the United Kingdom Home Office's Advisory Committee on Drug Dependence commented on this trend in 1968:

"At present cannabis can be prescribed by doctors in the form of extract of cannabis and alcoholic tincture of cannabis. Until very recently the demand for these preparations has been virtually negligible. In recent months however, there has been a striking increase in the amounts prescribed Our enquiries, supported by what we were told by our witnesses, indicate that there are a number of doctors who are beginning to experiment with the use of cannabis in the treatment of disturbed adolescents, heroin and amphetamine dependence and even alcoholism. Whilst we do not expect cannabis prescription will ever become standard medication in the treatment of these conditions, it is quite likely that the amount dispensed on medical prescriptions will continue to increase and that this process may be accelerated when synthetic cannabis derivatives, properly standardised, become available. We see no objection to this and believe that any new legislation should be such as to permit its continuance. We think, however, that when cannabis or its derivatives are prescribed, records of the kind that can be inspected by H.M. Inspectors of Drugs should be available. This will enable the prescribing trend over the next few years to be kept under methodical review."

Dr. William Woodward, a specialist in legal medicine and a lawyer as well as a physician, testified as a representative of the board of trustees of the American Medical Association in opposition to the proposed marijuana legislation at the 1937 Congressional hearings. He pointed out that the case against marijuana rested merely on newspaper stories and was not proven, and he opposed the law as likely to be a nuisance to the medical profession.

Also testifying against the law were the distributors of birdseed, who complained that canaries would not sing as well, or might stop singing altogether, if marijuana seeds were eliminated from their diet.

Congress recognized the legitimacy of the opposition from the birdseed manufacturers, and the bill was amended before enactment to exclude  sterilized marijuana seed. But the AMA's opposition was ignored, and the law was passed without other amendment.

Having secured both state and federal anti-marijuana legislation, Commissioner Anslinger's next goal was to drive marijuana out of legitimate medical practice, despite the promarijuana stand of the American Medical Association. One step in this direction was his successful effort to persuade Dr. Ernest Fullerton Cook, chairman of the Committee on Revision of the  United States Pharmacopeia (U.S.P.), to have marijuana deleted from that official compendium. * Commissioner Anslinger made use of Dr. Cook's well-known opposition to "shotgun remedies" containing two or more active ingredients. I recollect very well my conversation with . . . Dr. Fullerton Cook in relation to removing marijuana from the  Pharmacopeia," the former commissioner wrote in 1970. "He made the decision to remove it after I pointed out that it was being used purely in shotgun prescriptions. In one case, a woman had her prescription refilled 300 times and wound up in Bellevue Hospital as a mental case."

* Cannabis is still an accepted drug in the British Pharmacopoeia.

Commissioner Anslinger's campaign against medicinal use of marijuana was almost wholly successful. During the year ending December 31, 1970, only 38 American physicians paid their tax under the Marijuana Tax Act of 1937 and received licenses to prescribe marijuana.

Since 1937, restrictive legislation on marijuana has increased in quantity and severity. Most state marijuana laws specified that marijuana penalties should be the same as heroin penalties. Thus, as heroin penalties were escalated through the decades, marijuana penalties rose automatically. Nineteen states, moreover, made no distinction between mere possession of one marijuana cigarette and the sale of large quantities of heroin. Under both federal law and the laws of many states, as noted earlier, the giving or furnishing of a narcotic drug or of marijuana was included in the definition of "sale."

Here are some of the penalties in force as of January 1, 1970:

• In Alabama, a judge was required to sentence the possessor of one marijuana cigarette to not less than five years; he could hand down a ten year sentence, and as much as forty years for a second-possession offense. Suspended sentences and probation were prohibited in all cases.

• In Colorado, the mandatory minimum for a first-possession offense was two years and for a first-sale offense ten years; no parole was permitted until these minimum sentences had been served.
• In Georgia, sale of marijuana to a minor was punishable by life imprisonment, even if it was a first offense–– though the jury could recommend ten-to-twenty years instead. A second such offense was punishable by death–– but the jury could recommend life imprisonment or ten to twenty years instead. No mitigation of sentence (suspension, probation, or parole) was permitted; the constitutionality of this clause was in question.
  
  
• In Illinois, the penalty for a first-sale offense was not less than ten years and as much as life. A mandatory life sentence was in effect for a second-sale offense. These penalties remained in effect after a 1968 amendment to the law reduced the penalties for possession of small amounts.
  
  
• In Louisiana, anyone over twenty-one years of age possessing marijuana was subject to a mandatory minimum sentence of five years at hard labor for a first offense; the judge could impose a fifteen-year sentence. Possessors under twenty-one could be sentenced to not more than ten years, with or without hard labor. An adult selling marijuana to another adult was subject to a minimum mandatory sentence of ten years at hard labor and a maximum sentence of fifty years at hard labor for a first offense. If the seller were under twenty-one, sentences ranged from five to fifteen years. If the buyer were under twenty-one, however, a first-sale offense required a mandatory minimum sentence of thirty years at hard labor and could draw a death sentence. No suspended sentences or probation was permitted for any sale offenses or for second-possession offenses.
• In Massachusetts, it was a felony punishable by not more than five years in prison to be in a place where marijuana was kept or deposited, or to be in the company of anyone known to be in illegal possession of marijuana.
  
  
• In Missouri, the judge could hand down a life sentence for a second possession offense or a first-sale offense, without possibility of suspended sentence, probation, or parole. If the buyer were a minor, a death sentence was possible for a first-sale offense.
  
  
• In Rhode Island, a mandatory minimum sentence of ten years was decreed for a first offense of possession with intent to sell. The mandatory minimum for the first actual sale was twenty years, and a forty-year first offense sentence could be imposed.
  
  
• In Texas, the penalty for a first-possession offense was not less than two years, but the judge could impose a life sentence for a first-possession offense. A second-possession offense carried a mandatory minimum ten year sentence or a possible life sentence.
  
  
• In Utah a life sentence was possible for a first marijuana sale offense or for a second possession-with-intent-to-sell offense.

Congress also from time to time escalated federal marijuana penalties along with federal heroin penalties. In 1951, mandatory minimum sentences were fixed for all marijuana offenses, and, all but first-time offenders were rendered ineligible for suspended sentence or probation. In 1956, the mandatory minimum for first-offense possession was fixed at two years (with a ten-year term possible). The mandatory minimum for a second possession offense was fixed at five years (with a twenty-year term possible), with parole as well as probation and suspended sentence prohibited. For sale offenses, the mandatory minimum was set at five years for a first offense and ten years for a second; terms of twenty years for a first offense and forty for a second were possible–– and parole as well as suspended sentence and probation were banned for all sale offenses.

The Comprehensive Drug Abuse Prevention and Control Act of 1970 subsequently reduced federal penalties for marijuana possession.

As in the case of similar penalties for the possession or sale of heroin, these "mandatory" penalties were in fact rarely invoked; the offender was usually allowed to plead guilty to a lesser offense. When extreme penalties were handed down, there usually appeared to be some other reason–– some conduct or advocacy–– aside from involvement with marijuana. Ordinary people, it is commonly agreed, rarely draw such sentences. "In California," one youth leader explains, "it is illegal to smoke marijuana unless you have your hair cut at least once a month." The children of governors, senators, and others in the public eye, when arrested for marijuana offenses, rarely receive even short prison terms. Inequities of sentencing are no doubt among the factors bringing the marijuana laws, and drug law enforcement generally, into disrepute.

Continuing anti-marijuana propaganda kept pace with the continuing anti-marijuana legislation after 1937. And people generally believed the propaganda. In a National Institute of Public Opinion (Gallup) poll of a cross-section of 1,539 adults in 300 localities, made in October 1969, only 12 percent of the respondents thought that use of marijuana should be legalized; 84 percent were opposed, and 4 percent had no opinion. Among grade-school children, opposition to marijuana was even more prevalent; 6 percent thought it should be legalized, while 91 percent were opposed, and 3 percent had no opinion. When adult respondents were asked to describe the effects of smoking marijuana, they gave the following replies.

"The total adds up to more than 100 percent since some persons gave more than one response," the Gallup organization explained. That only 3 percent of respondents considered marijuana "neither habit-forming nor harmful" is worthy of particular note. From the point of view of anti-marijuana laws and anti-marijuana publicity alike, the United States in the 1960s was superbly protected against this hated drug.

Notes
Chapter 56

1. Bureau of Narcotics, U.S. Treasury Department,  Traffic in Opium and Other Dangerous Drugs for the Year Ended December 31, 1932 (Washington, D.C.: U.S. Government Printing Office, 1933), p. 13.

2. U.S. Treasury Department,  Traffic in Opium and Other Dangerous Drugs for the Year Ended December 31, 1931 (Washington, D.C.: U.S. Government Printing Office, 1932), p. 51.

3. Bureau of Narcotics, U.S. Treasury Department,  Traffic in Opium and Other Dangerous Drugs for the Year Ended December 31, 1935 (Washington, D.C.: U.S. Government Printing Office, 1936), p. 30.

4. David Solomon, in  The Marijuana Papers, ed. David Solomon (New York: Bobbs-Merrill, 1966), p. xv.

5. Robert P. Walton,  Marijuana, America's New Drug Problem (Philadelphia: J. B.
Lippincott, 1938), Table 1, p. 37. A

6. Howard S. Becker, "Marijuana: A Sociological Overview," in Solomon,  The Marijuana Papers, p. 62.

7. Ibid.

8. Harry J. Anslinger, with Courtney, Ryley Cooper, "Marijuana: Assassin of Youth,"  American Magazine, 124 (July, 1937): 19, 150.

9. Cited by Walter Bromberg, "Marihuana: A Psychiatric Study,"  JAMA, 113 (1939): 9, reprinted in Solomon,  The Marijuana Papers, p. 251.

10. Ibid.

11. Ibid., pp. 251-252.

12. James C. Munch, United Nations  Bulletin on Narcotics, 18 (1966): 20.

13. Lawrence Kolb,  Drug Addiction, A Medical Problem (Springfield, Ill.: Charles C Thomas, 1962), p. 55.

14. Public Law No. 238, 75th Cong., August 2, 1937, reprinted in Solomon,  The Marijuana Papers, pp. 426-438.

15. Taxation of Marijuana, Hearings before the Committee on Ways and Means, U.S. House of Representative,;, 75th Cong., Ist Sess., on H.R. 6385, April 27-30 and May 4, 1937 (Washington D.C.: U.S, Government Printing Office, 1937), p. 7,

16. Cited by Alfred R. Lindesmith, in Solomon,  The Marijuana Papers, p. xxiv.

17. Ibid.

18, Ibid.

19. Richard Brotman and Alfred M. Freedman, "Perspectives on Marijuana Research," prepared for Center for Studies in Substance Use; unpublished, p. 29.

20. "Federal Regulation of the Medicinal Use of Cannabis,"  JAMA, 108 (May 1, 1937): 1543.

21. Ibid., pp. 154.3-1544.

22. Medical Center Hospital of Vermont, Burlington,  Progress and Care, 20 (August, 1970): 1, 3.

23. Cannabis, Report by the Advisory Committee on Drug Dependence (London: Her Majesty's Stationery Office, 1968), p. 32.

24. "Report of Committee on Legislative Activities,"  JAMA, 108 (June 26, 1937): 2214.

25. Taxation of Marijuana, p. 88.

26. Ibid., pp. 27-30.

27. Ibid., p. 68.

28. Personal communication.

29. Data supplied by the Bureau of Narcotics and Dangerous Drugs, U.S. Department of justice.

30. "Analysis of State Laws Governing Marijuana,"  Congressional Record, January 20, 1970, pp. S240-245.

31. Public Law No. 78-728, 84th Cong., 2nd Sess., July 18, 1956.

32. Personal communication.

33. New York Times, October 26, 1969.

34. New York Times, October 23, 1969.