| CHAPTER VIII Nonchalance on Capitol Hill |
|
| Books - The Marihuana Conviction |
| Written by Richard J Bonnie |
|
THE TREASURY DEPARTMENT went to Capitol Hill to secure passage of the Marihuana Tax Act with an open-and-shut case. Anslinger and his colleagues stressed four points in their testimony before the House Ways and Means Committee and a subcommittee of the Senate Finance Committee: marihuana was a disastrous drug; its use was increasing alarmingly and had generated public hysteria; state legislation had proved incapable of meeting the threat posed by the weed, and federal action was therefore required; and, the government might best act through separate legislation rather than through an amendment to the Harrison Act. For five mornings in the House and one morning in the Senate, the legislators and bureaucrats convinced one another of the need for this legislation. The selection and questioning of witnesses reflect clearly the consensus among the participants regarding the relative importance of the matters upon which the legislation was predicated. Of primary interest was the question of federal resRon-sibility. The New Deal Congress had been flexing its muscles for four years and resented any suggestion that any "national" problem was beyond its competence. If the Treasury "experts" contended that marihuana was a national menace, then the United States Congress was committed in principle to federal action. The threat of invalidation by the Supreme Court posed the only restraint, and even that issue was rapidly becoming one only of form. What's Wrong with Marihuana? The narcotics bureaucracy had no definitive scientific study of the effects of marihuana to present to the Congress. Even so, one might have thought the Treasury Department would have submitted a synthesis of available scientific information, or perhaps would have summoned a number of private investigators or the government's own public health experts to testify about the drug's effects. None of these things were done. No statement was submitted by the Public Health Service. Neither of the government's own public health experts, Drs. Treadway and Kolb, testified, nor did Drs. Bromberg and Siler who had recently published scientific articles on the effects of cannabis in humans. Instead, the scientific aspects were summarized briefly by the FBN, a law enforcement agency. The bureau submitted a written statement which acknowledged some uncertainty within the scien-tific community. Then they dismissed it: Despite the fact that medical men and scientists have disagreed iTon the properties of marihuana, and some are inclined to minimize the harmfulness of this drug, the records offer ample evidence that it has a disastrous effect upon many of its users. Recently we have received many reports showing crimes of violence committed by persons while under the influence of marihuana. . . . The deleterious, even vicious, qualities of the drug render it highly dangerous to the mind and body upon which it operates to destroy the will, cause one to lose the power of connected thought, producing imaginary delectable situations and gradually weakening the physical powers. Its use frequently leads to insanity. I have a statement here, giving an outline of cases reported to the Bureau or in the press, wherein the use of marihuana is connected with revolting crimes.1 Only the Gomila and Stanley articles were presented to support this statement.2 Stanley's article cited the Indian Hemp Drugs Commission report, and Gomila cited Bromberg's study, but neither of these reports were themselves presented, nor were the Canal Zone studies. The few hints of uncertainty in the bureau's written statement disappeared in Anslinger's oral testimony. Mr. ANSLINGER. I have another letter from the prosecutor at a place in New Jersey. MY DEAR MR. SCHWARZ: That I fully appreciate the need for action, you may judge from the fact that last January I tried a murder case for several days, of a particularly brutal character in which one colored young man killed another, literally smash-ing his face and head to a pulp, as the enclosed photograph demonstrates. One of the defenses was that the defendant's intellect was so prostrated from his smoking marihuana cigarettes that he did not know what he was doing. The defendant was found guilty and sentenced to a long term of years. I am con-vinced that marihuana had been indulged in, that the smoking had occurred, and the brutality of the murder was accounted for by the narcotic, though the defendant's intellect had not been totally prostrate, so the verdict was legally correct. It seems to me that this instance might be of value to you in your campaign. Sincerely yours, Mr. Hartshorne is a member of the Interstate Commission on Crime. Anslinger's testimony was the only information on effects which was presented to the Senate subcommittee. In the House, Anslinger brought along a representative from the scientific community. Instead of presenting one of the few re-searchers who had done any significant research into the effects of cannabis on humans, however, the bureau chose a Temple Univer-sity pharmacologist, Dr. James Munch, whose experience was confined to limited experimentation of the effects of cannabis on dogs. One participating committeeman, Congressman McCormack (later the Speaker), soon realized how little Dr. Munch could contribute, and with his questions began to assume the role of the expert witness on the effects of cannabis in man: Dr. MUNCH. In connection with my studies of Cannabis, or marihuana, I have followed its effects on animals and also, so far as possible, its effect upon humans. Continuous use will tend to cause the degeneration of one part of the brain, that part that is useful for higher or physic reasoning, or the memory. Functions of that type are localized in the cerebral cortex of the brain. Those are the disturbing and harmful effects that follow continued exposure to marihuana.... I have found in studying the action on dogs that only about 1 dog in 300 is very sensitive to the test. The effects on dogs are extremely variable, although they vary little in their suscepti-.bility. The same thing is true for other animals and for humans. Animals which show a particular susceptibility, that is, which show a response to a given dose, when they begin to show it will acquire a tolerance. We have to give larger doses as the animals are used over a period of 6 months or a year. This means that the animal is becoming habituated, and finally the animal must be discarded because it is no longer serviceable. Mr. McCORMACK. We are more concerned with human beings than with animals. Of course, I realize that those experiments are necessary and valuable, because so far as the effect is concerned, they have a significance also. But we would like to have whatever evidence you have as to the conditions existing in the courttry, as to what the effect is upon human beings. Not that we are not concerned about the animals, but the important matter before us concerns the use of this drug by human beings. Mr. McCORMACK. I take it that the effect is different upon different persons. The Birth of a Menace The second component of the bureau's case was the contention that marihuana use had spread alarmingly in recent years, provok-ing a public outcry. To demonstrate this, the bureau submitted only the 1936 letter from the city editor of the Alamoosa Daily Courier and the Gomila article, hardly firm evidence of any such alarming increase.5 The Congress, however, was neither in the mood nor in a position to question Anslinger's contentions. What did interest legislators, however, was why use suddenly increased in 1935. In both houses Anslinger dismissed the suggestion that drug users turn to marihuana when other drugs are not available: Senator BROWN. Do you think that the recent great increase in the use of it that has taken place in the United States is probably due to the heavy hand of the law, in its effect upon the use of other drugs, and that persons who desire a stimulant are turning to this because of enforcement of the Harrison Narcotics Act and the State laws? When asked to estimate the number of users, Anslinger reported that the states had made about 800 marihuana arrests, 400 in California alone, the previous year. He suggested that the California authorities had cracked down and that if the other states were more efficient, there would have been more arrests, although he admitted that use probably was not as prevalent anywhere else as in California? Arrest figures are singularly unhelpful in ascertaining incidence of use, being a function more of enforcement policy, investigative activity, and statistical reporting than of the size of the using population. But even if a significant leap in arrest figures could be taken to indicate increased incidence of use, Anslinger's figures were meaningless. There was no systematic reporting of state arrests, so Anslinger could not possibly have compiled a reliable figure. Even so, he did not present figures for prior years for comparative purposes, and 800 arrests in a year could not have been much of an increase. Some perspective is provided by the fact that in 1970, when statistical reporting was still primitive, there were an estimated 200,000 marihuana arrests and perhaps 60,000 were in California. All in all, Anslinger's bold assertion that marihuana use had markedly increased was entirely unsupported. But that, of course, did not make any difference. Anslinger used the newspaper cam-paigns of 1935 to paint a credible picture of public hysteria. Just as such propaganda generated interest in the Uniform Act among state legislatures, it created a "felt need" for federal legislation in the Congress, despite the fact that there is no evidence this public hysteria about marihuana really existed on any signficant scale.8
The Need for National Legislation The third component of the bureau's case was that even though every state now had marihuana legislation, local authorities could not cope with the marihuana menace. To support this proposition the bureau offered editorial pleas from the Washington newspapers and Anslinger's testimony that officials of several states had re-quested federal help. The FBN offered no information on why the states needed help. Was there a major interstate trafficking network which could not be broken by local authorities? Senator Brown realized the importance of this question and asked Anslinger to "make clear the need for federal legislation. You say the states have asked you to do that. I presume it is because of the freedom of interstate traffic that the States require the legislation." Anslinger agreed: "We have had requests from the States to step in because they claimed it was not growing in that State, but that it was coming in from another state."9 He presented nothing to support this statement, no letters from local authorities and no investigative reports by FBN agents describing the trafficking apparatus. Although absence of recorded evidentiary support is not necessarily conclusive on this matter, nothing remains today in the FBN's files which would have supported the contention. The bureau's implicit attitude was that most of the states were not trying very hard to enforce their marihuana legislation, due to either inadequate resources or simple lack of interest. The need for federal legislation did not arise from the limitations imposed by state boundaries but from the inefficiency of state authorities within their own jurisdictions, as perceived by the bureau. If the bureau was given statutory responsibility through a federal law on marihuana, Anslinger hoped to spark state and local enforcement in those jurisdictions which had not yet taken the problem seriously. In the states which had already begun to suppress marihuana—New York, Louisiana, Colorado, and California—the bureau would assist by supplying additional manpower and money.") The congressmen and senators participating in the hearings accepted the bureau's argument. In fact, Senator Brown, chairman of the subcommittee which considered the legislation in the Senate, and Chairman Doughton of the Ways and Means Committee had been thoroughly briefed by the bureau in advance of the hearings. Again and again, Anslinger, Doughton, Brown, and McCormack seemed merely to be reinforcing each others' convictions. There was no probing of the government witnesses. In fact, the govern-ment made its case in the House in one session, and the next three sessions were devoted to countering technical objections of the oilseed, birdseed, and hemp industries.11 On the last morning of scheduled hearings, however, the final witness introduced some suspense into these otherwise pro forma proceedings. Dr. William C. Woodward, the bureau's sometime ally, appeared on behalf of the AMA to oppose the bill. Dr. Woodward methodically challenged the validity of each of the assump‘tions upon which the legislation was based, noting again and again that he had no objection to amendment of the Harrison Act. Yet the congressmen were in no mood for the AMA or Dr. Woodward, and they roundly insulted his audacity in daring to question the wis-dom of the bill (an attitude that might not have surfaced had Woodward not been standing alone while his medical colleagues stood on the sidelines). How Dare You Dissent! Dr. Woodward objected to H.R. 6385 because he believed that its ultimate effect would be to strangle any medical use of marihuana. Although there were admittedly few recognized therapeutic appli-cations, the bill, in his view, inhibited further research which might bear fruit. He implied that the bill was designed with this objective in mind. Dr. Woodward was, in fact, quite correct in both respects. Anslinger had desired since 1930 to eliminate any medical use, and the Marihuana Tax Act had exactly that effect for thirty years. It was not characteristic of Dr. Woodward to raise objections without presenting alternatives. He patiently noted that if federal legislation was considered necessary, it could be achieved without sacrificing medical usage by simply amending the Harrison Act. The bureau had drafted the Marihuana Tax Act in secret12 without consulting him or any other representative of the AMA, and he did not hesitate to point out deficiencies in the bureau's case. First, he criticized the nature of the testimony in general: That there is a certain amount of narcotic addiction of an objectionable character no one will deny. The newspapers have called attention to it so prominently that there must be some grounds for their statements. It has surprised me, however, that the facts on which these statements have been based have not been brought before this committee by competent primary evidence. We are referred to newspaper publications concerning the prevalence of marihuana addiction. We are told that the use of marihuana causes crime. But yet no one has been produced from the Bureau of Prisons to show the number of prisoners who have been found addicted to the marihuana habit. An informal inquiry shows that the Bureau of prisons has no evidence on that point. You have been told that school children are great users of marihuana cigarettes. No one has been summoned from the Children's Bureau to show the nature and extent of the habit among children. Inquiry of the Children's Bureau shows that they have had no occasion to investigate it and know nothing particularly of it. Inquiry of the Office of Education—and they certainly should know something of the prevalence of the habit among the school children of the country, if there is a prevalent habit—indicates that they have had no occasion to investigate and know nothing of it. Moreover, there is in the Treasury Department itself, the Public Health Service, with its Division of Mental Hygiene. The Division of Mental Hygiene was, in the first place, the Division of Narcotics. It was converted into the Division of Mental Hygiene, I think, about 1930. That particular Bureau has control at the present time of the narcotics farms that were created about 1929 and 1930 and came into operation a few years later. No one has been summoned from that Bureau to give evidence on that point. Informal inquiry by me indicates that they have had no record of any marihuana or Cannabis addicts who have even been com-mitted to those farms. The Bureau of the Public Health Service has also a division of pharmacology. If you desire evidence as to the pharmacology of Cannabis, that obviously is the place where you can get direct and primary evidence, rather than the indirect hearsay evidence.13 Woodward noted with regard to the alleged evil effects of the drug, that during the drafting of the Uniform Act, the participants "could not . .. find evidence that would lead it to incorporate in the model act a [marihuana] provision."14 Dr. Woodward also pointed out that there was no evidence to believe there had been an increase in the use of the drug. Mr. McCORMACK. There is no question but that the drug habit has been increasing rapidly in recent years. Dr. Woodward's most pointed attack was directed againk the assumption that federal legislation was needed to control the marihuana habit. He argued that existing state legislation was more than sufficient, if properly enforced, and that if lack of coordina-tion was the problem, that was the FBN's fault. Noting that the FBN already had the authority under its establishing act to "ar-range for the exchange of information concerning the use and abuse of narcotic drugs in [the] states and for cooperation in the institution and prosecution of suits. . . ,"16 he asserted that the bureau had not done its job: "If there is at the present time any weakness in our state laws relating to Cannabis, or to marihuana, a fair share of the blame, if not all of it, rests on the Secretary of the Treasury and his assistants who have had this duty imposed upon them for 6 and more years." 17 Dr. Woodward also contended that the law would be a useless expense to the medical profession and would be unenforceable as well. Since marihuana grows so freely, and every landowner was a potential "producer," whether wittingly or unwittingly, full enforcement would require inspection of the entire land area of the country, a task which would be unseemly for the federal govern-ment ,to undertake.19 Further, the assumption of federal respon-sibility would exacerbate the "general tendency to evade responsibility on the part of the states, .. . a thing that many of us think ought not to be tolerated." 2° Finally, Dr. Woodward wondered why, if federal legislation was considered necessary, the Congress did not simply amend the Harrison Act. To the bureau's argument that such a course would be unconstitutional, he inquired how Treasury's counsel could argue that the present bill was constitutional since the technique was identical. Dr. Woodward's own view was that amendment of the Harrison Act would be constitutional and that such a course would dispel the professional objections which he had raised.21 As soon as Dr. Woodward completed his testimony, he was met with objections. First, Congressman Vinson suggested that Wood-ward was not speaking for the AMA, and he engaged the doctor in a contentious dialogue about the impact of a recent AMA Journal editorial which appeared to support the bill.22 Vinson argued that it reflected AMA policy. Woodward contended that it merely para-phrased Anslinger. Then Vinson embarked on a thinly veiled diatribe against the AMA's opposition to New Deal legislation, suggesting that Woodward's position on H.R. 6385 was the kind of obstructionism which he had come to expect from the association?3 When the subject turned to the AMA's position on the Harrison Act, Congressman Cooper joined the fray: This exchange captures vividly what was at issue. Dr. Woodward was opposed to federal legislation which, in his view, would impose severe burdens without achieving any benefits. The New Deal Congress, on the other hand, was disposed to legislate on any colorably "national" evil, whatever its scope. It could be said, indeed, that the Congress was psychologically habituated to the enactment of federal legislation. Several minutes later Chairman Doughton began: The CHAIRMAN. If [marihuana's] use as a medicine has fallen off to a point where it is practically negligible, and its use as a dope has increased until it has become serious and a menace to the public, as has been testified here—and the testimony here has been that it causes people to lose their mental balance, causes them to become criminals so that they do not seem to realize right from wrong after they become addicts of this drug—taking into consideration the growth in its injurious effects and its diminution in its use so far as any beneficial effect is concerned, you realize, do you not, that some good may be accomplished by this proposed legislation? The CHAIRMAN. I believe you did say in response to Mr. Cooper that you believed that some legislation or some change in the present law would be helpful. If that be true, why have you not been here before this bill was introduced proposing some remedy for this evil? After accusing Dr. Woodward of obstructionism, evasiveness, and bad faith, the committee did not even thank him for his testi-mony. When the Senate Finance Committee conducted hearings on the bill—now styled H.R. 6906—two months later, Dr.Woodward must have decided to spare himself the grief of a personal appear-ance. He submitted instead a short letter which stated the AMA's reasons for opposing the bill. 26 Both committees reported the bill favorably despite Woodward's objections. The Ways and Means report raised the FBN assertions against marihuana to the level of congressional findings: Under the influence of this drug the will is destroyed and all power of directing and controlling thought is lost. Inhibitions are released. As a result of these effects, it appeared from testi-mony produced at the hearings that many violent crimes have been and are being committed by persons under the influence of this drug. Not only is marihuana used by hardened criminals to steel them to commit violent crimes, but it is also being placed in the hands of high-school children in the form of marihuana cigarettes by unscrupulous peddlers. Cases were cited at the hearings of school children who have been driven to crime and insanity through the use of this drug. Its continued use results many times in impotency and insanity. 27 Congressional "Deliberation" and Action The marihuana "problem" and the proposed federal cure went virtually unnoticed by the general public. Having failed to arouse public opinion on any significant scale through its educational campaign, the Bureau of Narcotics nevertheless pushed the proposed legislation through congressional committees. The committee mem-bers were convinced by inaccurate, unscientific evidence that federal action was urgently needed to suppress a problem that was no greater and probably less severe than it had been in the preced-ing six years when every state had passed legislation to suppress it. The committee was also convinced, incorrectly, that the public was aware of the evil and that it demanded federal action. The debate on the floor of Congress illustrates the nonchalance of the legislators. The bill passed the House of Representatives in the very late afternoon of a long session. Many members were un-familiar either with marihuana or with the purpose of the act. When file bill came to the House floor on 10 June 1937, one congressman objected to considering the measure at such a late hour: Mr. DOUGHTON. I ask unanimous consent for the present consideration of the bill [H.R. 69061 to impose an occupational excise tax upon certain dealers in marihuana, to impose a trans-fer tax upon certain dealings in marihuana, and to safeguard the revenue therefrom by registry and recording. The Clerk read the title of the bill. Mr. SNELL. Mr. Speaker, reserving the right to object, and notwithstanding the fact that my friend, Reed, is in favor of it, is this a matter we should bring up at this late hour of the after-noon? I do not know anything about the bill. It may be all right and it may be that everyone is for it, but as a general principle, I am against bringing up any important legislation, and I sup-pose this is important, since it comes from the Ways and Means Committee, at this late hour of the day. On 14 June, when the bill finally emerged on the House floor, four congressmen in one way or another asked that the proponents explain the provisions of the act. Instead of a detailed analysis, they received a statement of one of the members of the Ways and Means Committee which repeated reflexively the lurid criminal acts Anslinger had attributed to marihuana users at the hearings. After less than two pages of debate, the act passed without a roll call. 29 When the bill returned as amended from the Senate, the House considered it again and adopted as quickly as possible the Senate suggestions, which were all minor.3° The only question was whether the AMA agreed with the bill. Congressman Vinson not only said they did not object, but he also claimed that the Bill had AMA support. After turning Dr. Woodward's testimony on its head, he also called him by another name—Wharton.31 Notes 1. House, Hearings on H.R. 6385, p. 30. |
