VIRGINIA LAW REVIEW

VOLUME 56 OCTOBER 1970 NUMBER 6

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**

'Assistant Professor of Law, University of Virginia. B.A., 1966, Johns Hopkins University; LL.B., 1969, University of Virginia.

"Assistant Professor of Law, University of Virginia. A.B., 1965, Princeton University; LL.B., 1968, Yale University.

Mr. Snell. What is the bill?

Mr. Rayburn. It has something to do with something that is called marihuana. I believe it is a narcotic of some kind.

Colloquy on the House floor prior to passage of the Marihuana Tax Act.

Introduction

We wish to express our sincere appreciation to the students who assisted us in the preparation of the tables at Appendix A. Because the drug statutes of the several states are particularly confusing and difficult to find, and because so many jurisdictions have recently changed their drug laws, the preparation of the chart required long, tedious work which so many were kind enough to perform. To them, our most sincere thanks.

We should like to thank especially Michael A. Cohen, John F. Kuether, W. Tracey Shaw, Alan K. Smith, and Allan J. Tanenbaum, all students at the University of Virginia School of Law, whose research assistance and tireless effort were invaluable.

We are particularly indebted to Professor Jerry Mandel who supplied us with much of the raw data used in the historical case studies in this Article. In his excellent article on drug statistics in the Stanford Low Review, Problems with Official Drug Statistics, 21 STAN. L. REV. 991 (1969), Professor Mandel suggested in a footnote that someone should attempt a history of the passage of anti-marijuana legislation. We have followed his suggestion and earnestly hope that our product will fill this gap.

A modified and expanded version of this Article will be published in book form in the spring of 1971.

TABLE OF CONTENTS

I. INTRODUCTION

II. THE ANTECEDENTS: CRIMINALIZATION OF NARCOTICS AND ALCOHOL

• A. A Review of the Temperance Movement
• B. Anti-Narcotics Legislation to 1914
  • 1. Narcotics Use at the Turn of the Century: A Growing Problem
  • 2. State Legislative Response Before 1914
  • 3. Watershed: The Passage of the Harrison Act
• C. The judicial Role and the Constitutional Framework: The Police Power and Intoxicant Prohibition to 1920
  • 1. Phase One: Prohibition of Sale and Manufacture of Alcohol
  • 2. Phase Two: Prohibition of Sale of Opium
  • 3. Phase Three: Prohibition of Possession of Alcohol to 1915
  • 4. Phase Four: Prohibition of Possession of Narcotics
  • 5 . Phase Five: Prohibition of Possession of Alcohol After 1915
  • 6. A Postscript on the Police Power: The Cigarette Cases

III. THE GENESIS OF MARIJUANA PROHIBITION

• A. Initial State Legislation: 1914-1931
  • 1. Rationale in the West: Class Legislation
  • 2. Rationale in the East: Substitution
  • 3. The International Scene
  • 4. Conclusion
• B. Judicial Corroboration

IV. PASSAGE OF THE UNIFORM NARCOTIC DRUG ACT: 1927-1937

• A. Origins of the Uniform Law
• B. Drafting the Law
• C. Passage of the State Laws
  • 1. Use Patterns and Public Knowledge: 1931-1937
  • 2. Role of the Federal Bureau of Narcotics
  • 3. Legislative Scrutiny and Media Coverage
  • 4. Available Medical Opinion
• Provisions of the Uniform Narcotic Drug Act and Supplemental Virginia Marijuana Statute
  • (a) Classification and Offenses
  • (b) Penalties

V. PASSAGE OF THE MARIHUANA TAX ACT OF 1937

• A. State Enforcement of the Uniform Law
• B. Public Hysteria or Continued Public Ignorance?
• C. The Tax Act Hearings
  • 1. Who Were Users?
  • 2. What's Wrong with Marijuana?
  • 3. How Dare You Dissent!
• D. Congressional "Deliberation" and Action
• E. Provisions of the Act

VI. THE 1950's: HARSHER PENALTIES AND A NEW RATIONALE - THE "STEPPING STONE" THEORY

• A. The Boggs Act and Its Progeny: The First Escalation
  • 1. The Problem: Increased Narcotics Use
  • 2. The Solution: Harsher Penalties
  • 3. Marijuana and the Boggs Act
    • (a) Increased Use
    • (b) Youthful Users
    • (c) The Danger: A New Rationale
  • 4. The State Response: Mindless Escalation
• B. The Late 1950's: Another Escalation of the Penalties
  • 1. Provisions of the Narcotic Control Act of 1956
  • 2. Marijuana: Along for the Ride
  • 3. Trafficking Patterns
  • 4. Origin and Use
  • 5. Enforcement Patterns
  • 6. The Epitome of Irrationality: Virginia's 1958 Amendment

VII. MARIJUANA USERS IN THE COURTS: 1930-1965

• A. Statutory Fantasies: The Complications of Federal Legislation
  • 1. Quadruple "Jeopardy" and the "Killer Weed
  • 2. Statutory Presumptions
• B. Attacks on State Legislation
• C. Procedural Defenses and Entrapment
  • 1. Search and Seizure
  • 2. Entrapment
• D. The Pro Forma Trial

VIII. THE PUBLIC DISCOVERS THE TRUTH ABOUT MARIJUANA

• A. Marijuana and the Masses
• B. Enforcement of the Marijuana Laws: 1960-1970
• C. Emergence of Medical Opinion
  • 1. Research Obstacles
  • 2. Current Medical Knowledge
    • (a) The Myths
    • (b) Physical Effects
    • (c) Psychomotor Effects
    • (d) Psychological Effects

IX. MARIJUANA LEGISLATION CLASHES WITH JUDICIAL SKEPTICISM AND EMERGING VALUES-PIECEMEAL JUDICIAL RESPONSE: 1965-1970

• A. Multiple Offenses: Untying the Statutory Knots
  • 1. Federal Developments
  • 2. State Developments
• B. Procedural Objections to Enforcement Practices
  • 1. Search and Seizure
  • 2. Entrapment
  • 3. Other Prosecution Practices
• C. Sufficiency of Evidence
• D. Sanction

X. THE HEART OF THE MATTER-SUBSTANTIVE CONSTITUTIONAL CHALLENGES TO THE MARIJUANA LAWS: 1965-1970

• A. The Burden of Justification: The Importance of Having a Presumption on Your Side
  • 1. Due Process and Equal Protection: Rationality of the Classification..
  • 2. Cruel and Unusual Punishment: Rationality of the Sanction
• B. Should the Burden Be Shifted?-Marijuana and Fundamental Rights
  • 1. The Robinson-Powell Argument
  • 2. Free Exercise of Religion
  • 3. Right of Privacy
  • 4. The Ninth Amendment-The Forgotten Kitchen Sink
• C. Another Constitutional Perspective: The Police Power

XI. LEGISLATIVE RECONSIDERATION: 1965-1970

• A. Virginia Legislative "Reform": Publicity Begets Tokenism
• B. The Dodd Bill: Half a Loaf
• C. Postscript: The Dodd Bill Becomes the Comprehensive Drug Abuse Prevention and Control Act of 1970

XII. CONCLUSION: BEFORE THE FALL

• A. Public Policy Formation Process
• B. Twentieth Century Values and the Marijuana Laws
  • 1. The Premise
  • 2. Statutory Recommendations

APPENDIX A. STATUTORY TABLES

APPENDIX B. BIBLIOGRAPHY