Special Report – Marijuana Prohibition, The United States 1911-2016

In the first of a four part series, we will be examining one of the most interesting public debates of our time: the legalization of cannabis. We commence this series with an examination of the history of prohibition in the United States. In ensuing articles we will be looking at the arguments in favour of legalization at Federal level,  the medical and scientific uses of cannabis and what role big business will play monetising marijuana should full federal legalization come about?.
 Harborside Medical Marijuana Dispensary Oakland CA
A revolution is taking place, it is a green revolution but not in the ecological sense which addresses issues such as global warming and climate change. Rather, it is a revolution in terms of drug policy both domestically and internationally and more particularly whether the prohibition on the posession, use and cultivation of cannabis (already removed by certain states) should finally be ended. In this special report we take a critical look at the growing trend towards ending prohibition and ask the question whether we should legalize or decriminalize?

In the U.S. cannabis remains illegal under federal law, notwithstanding this a number of states have legalized either for medicinal or recreational use or both. At the time of writing, 28 states and the District of Columbia currently have laws legalizing cannabis.

Seven states Colorado, Washington, Alaska, Oregon, California, Massachusetts, Nevada and the District of Columbia have legalized marijuana for recreational use. In Alaska, adults 21 and older can now transport, buy or possess up to an ounce of cannabis and six plants. Oregon voters approved a similar measure allowing adults to posses up to an ounce of cannabis in public and 8 ounces in their homes, set to take effect July 1. Colorado and Washington previously passed similar ballot measures legalizing marijuana in 2012.

A number of states have also decriminalized the possession of small amounts of marijuana. Most recently, Delaware passed legislation that decriminalizes the private use of up to an ounce of marijuana, replacing penalties with a civil fine.

Other states have passed medical marijuana laws allowing for limited use of cannabis. Some medical marijuana laws are broader than others, with types of medical conditions that allow for treatment varying from state to state. Others states (not shown on the map below) have passed laws allowing

“At a certain point, if enough states end up decriminalizing, then Congress may then reschedule marijuana.”President Barack Obama

Timeline – Cannabis Prohibition 1911-1992.

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    April 29, 1911

    Commonwealth of Massachusetts becomes first state to ban cannabis in the United States of America

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    Pure Food and Drug Act 1906

    Required labeling of any cannabis contained in over-the-counter remedies.

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    The Harrison Act 1914

    The Harrison Narcotics Tax Act is enacted. Congress votes to levy a tax on opiates like opium and coca leaves, and lays the groundwork for future drug laws.

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    14th June 1930

    Creation of the Federal Bureau of Narcotics with the appointment of Harry J. Anslinger as first director.

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    The Uniform State Narcotic Law 1935

    Under President Franklin D. Roosevelt, an act is passed to bring state laws into accordance with federal statutes in fighting drug sales and abuse. It is modeled on the Harrison Act.

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    The Marihuana Tax Act of 1937

    The Marihuana Tax Act of 1937 effectually curbs the trafficking of marijuana through heavy taxation. The Narcotics Bureau assumes control of enforcing it.

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    The Boggs Act 1951

    The Boggs Act establishes the first mandatory prison sentences for violators of narcotics laws. Under the legislation, sponsored by Rep. Hale Boggs of Louisiana, penalties for selling narcotics increases to 2 to 5 years in a federal penitentiary for first offenders, 5 to 10 years for second offenders, and 10 to 20 years for third offenders.

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    Single Convention on Narcotic Drugs 1961

    In 1961, the United Nations drew up a treaty known as the Single Convention on Narcotic Drugs to curb drug trafficking and drug abuse. The treaty makes narcotic drug production and possession illegal, and it details an enforcement system for that purpose. For example, different classes of drugs are organized and identified as either Schedule I, II, III, or IV, and are penalized accordingly.

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    The Shafer Commission 1970

    Nixon establishes the Shafer Commission. When it becomes clear that the group will advocate the legalisation of small amounts of marijuana, Nixon states publicly that he will disregard the advice of the commission he created.

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    The Controlled Substances Act 1970

    The Controlled Substances Act is passed, classifying drugs on four different schedules or categories of seriousness. Marijuana is classified as a Schedule 1 drug, making it legally one of the most dangerous substances carrying the highest penalties

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    The Shafer Report 1972

    The Shaffer Commission recommends legalising small quantities of marijuana. The group has researched the drug using 50 projects, ranging from a study of the effects of marijuana on the human body to a field survey of enforcement of the marijuana laws in six cities. As promised, Nixon rejects the proposal.

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    Drug Enforcement Agency

    Amalgamation of the Bureau of Narcotics and Dangerous Drugs, the Office for Drug Abuse Law Enforcement and the Office of National Narcotics Intelligence — are consolidated into the Drug Enforcement Administration.

Part 1 – the History of Cannabis Prohibition in the United States
The history of cannabis prohibition in the United States is slightly different to the UK and Ireland experience. The United States never joined the League of Nations and so was not a party to the 1925 Geneva Convention. Indian hempseed had been cultivated in America since the time of the Jamestown Colony, when an ordinance decreed that it must be grown. There were several other “must grow” laws over the next 200 years (you could be jailed for not growing hemp during times of shortage in Virginia between 1763 and 1767), and during most of that time, hemp was legal tender. The United States Census of 1850 counted 8,327 hemp “plantations” (minimum 2,000-acre farm) growing cannabis hemp for cloth, canvas and even the cordage used for baling cotton.

The emergence of anti-cannabis laws coincides with alcohol prohibition. As early as 1911 hearings on a Federal anti-narcotics law heard debate on controlling cannabis. The USA unsuccessfully proposed that cannabis be discussed at the Hague Conference on opiates in 1912. Their enthusiasm for drug control was a mix of moralism and self-interest, both tending to boost America’s developing international influence.

At this time, most medical drugs were imported, so controlling them made little difference to US domestic policy, but gave the US a moral and economic lever against their mostly German and British producers. Cannabis was an exception, so it had some friends in the pharmaceutical, veterinary, and seed oil industries. It also had enemies among the press and politicians who used it as part of thinly veiled racist attacks on Mexican immigration and Black cultural independence.

Among the most vehement enemies of cannabis was William Randolph Hearst. Hearst’s newspapers introduced the word ‘marijuana’ into English from Mexican slang, sensationalising it and thus confusing the public into thinking this ‘devil weed’ was quite different from the familiar agricultural plant hemp which had been grown throughout the United States. There have been various theories as to why Hearst was so vehemently against cannabis, but it has been suggested that mechanised hemp production had the potential to undercut the price for wood pulp. Hearst had invested heavily in the timber industry to support his newspaper chain and didn’t want to see the development of hemp paper in competition.

Thus the expressions ‘Reefer Madness’, ‘Marijuana,’ ‘the Assassin of Youth’, ‘The Killer Weed’ and ‘The Gateway Drug’ were popularised by the Hearst newspaper empire during prohibition era of the 1920’s-30’s. In 1930, a new division in the Treasury Department was established — the Federal Bureau of Narcotics — and Harry J. Anslinger was named director. This, if anything, marked the beginning of the all-out war against cannabis or marijuana as it was increasingly being referred to in America in the early 1930’s

By using the mass media as his forum (receiving much support from Hearst), Anslinger propelled the anti-marijuana sentiment from the state level to a national movement. In particular he used his notorious ‘Gore Files’ to propagate some of the myths that have long since become associated with cannabis. More sinister were Editorials with a strongly racist angle became increasingly prevalent in the lead up to the American Marijuana Tax Act 1937

“There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others.”

“…the primary reason to outlaw marijuana is its effect on the degenerate races.”

The 1937 Act was vigorously opposed by the American Medical Association. Dr. William C. Woodward, Legislative Council of the A.M.A proved to be a thorn in Anslinger’s side slamming him distorting earlier AMA statements that had nothing to do with marijuana and making them appear to be AMA endorsement for Anslinger’s view which was not the case. Woodward also reproached the legislature and the Bureau for using the sensationalist term marijuana in the legislation and not publicising it as a bill about cannabis or hemp. Furthermore, he questioned why the bill was prepared in private and not put out for discussion with the various interest parties.

The Bill passed through committee very quickly and perhaps holds the record for the shortest discussion of any piece of legislation ever to come before the House as can be seen from the official record

Member from upstate New York: “Mr. Speaker, what is this bill about?”

Speaker Rayburn: “I don’t know. It has something to do with a thing called marihuana. I think it’s a narcotic of some kind.”

Mr. Speaker, does the American Medical Association support this bill?”

Member on the committee jumps up and says: “Their Doctor Wentworth [sic] came down here. They support this bill 100 percent.”

And on the basis of that lie (Woodward of course did not support the bill) on August 2, 1937, marijuana became illegal at the federal level.

In 1951, the United States Congress passed the Boggs Act which strengthened the enforcement of the Marihuana Tax Act of 1937 and the Narcotic Drug Import and Export Act of 1922 by enforcing harsh penalties on individuals convicted of drug law violations. For the first time at a federal level, marijuana and other narcotics were lumped together as a result of the Act’s provision for uniform penalties across the board. Penalties for selling narcotics increased from 2 to 5 years in a federal penitentiary for first offenders, 5 to 10 years for second offenders, and 10 to 20 years for third offenders. The increase in drug use during the 1960s resulted in numerous long sentences and led the federal government to re-examine its punitive approach and the patchwork quilt of disparate legislative measures to deal with drug enforcement.In February 1968 President Lyndon Johnson called the laws “a crazy quilt of inconsistent approaches and widely disparate criminal sanctions.” He asked Congress to pass tougher laws and to create a powerful organization to enforce them. On April 8, 1968, Congress abolished the FBN and the BDAC and created a new Justice Department agency, the Bureau of Narcotics and Dangerous Drugs (BNDD). Even after the creation of the BNDD, however, there remained other federal agencies involved somewhat in drug regulation.

President Richard Nixon proposed that Congress reduce the confusion over policy and the duplication of effort by federal agencies by combining disparate regulations into a single statute. Congress complied by enacting the Comprehensive Drug Abuse Prevention and Control Act of 1970. Nixon signed the bill on October 27, 1970, and it became effective on May 1, 1971. Around the same time the act was signed into force, Nixon declared his ‘War on drugs’. Two months before Nixon’s declaration, the Shafer Commission began its study into the nature and scope of marijuana use, the effects of the drug, the relationship of marihuana use to other behavior and the efficacy of existing law.

The War on Drugs

With the Controlled Substances Act 1 passed, the Nixon administration switched its policy focus to the international domain and worked hard to amend the 1961 Single Convention on Narcotic Drugs. As a result, a conference was called in 1972 to consider a number of amendments. The outcome the 1972 protocol to the 1961 convention was a copper fastening of global prohibition with emphasis being placed on supply side reduction. In parallel to the convention, there was also the 1971 Convention on Psychotropic Substances to which extended global prohibition towards drugs such as LSD, MDMA and amphetamines which were not included in the 1961 convention. Logically the two conventions should have been integrated, and it has been suggested that developed countries such as the United States took a janus faced approach to synthetic drugs, while on the one hand imposing controls on developed countries over the cultivation, production and distribution of natural drugs, and on the other hand being quite reluctant to impose concomitant controls on their respective chemical and pharmaceutical industries. While the UN conventions went beyond commodity restrictions towards a multilateral framework more prohibitory in nature,ultimately the decision to prohibit was left to relevant authorities at national level.

Notwithstanding the fact that Nixon established the Shafer Commission, when it became clear that the group would advocate the legalization of small amounts of marijuana, Nixon publicly stated that he would disregard the advice of the commission he created. Two years later the commission delivered its report, which recommended legalizing small quantities of marijuana for person use. True to form Nixon rejected the proposals. The 13 member commission were persuaded by 50 research reports they commissioned in addition to testimony received at ten public hearing hearings and four private sessions. The commission concluded (correctly as it turned out) that the cost to society of penalizing cannabis use outweighed the perceived dangers of legalising. Between 1973 and 1977, however, eleven states decriminalized marijuana possession. In January 1977, President Jimmy Carter was inaugurated on a campaign platform that included marijuana decriminalization. In October 1977, the Senate Judiciary Committee voted to decriminalize possession of up to an ounce of marijuana for personal use.
shafer report findings summary

“From the very inception of marihuana control legislation, this nation has utilized a policy of a total prohibition, far more comprehensive than the restrictions established during the prohibition of alcohol. The exaggerated beliefs about the drug’s effects, social impact, and user population virtually dictated this legal approach. During this entire period, total prohibition was sought through the use of heavier and heavier penalties until even first-time possession was a felony in every jurisdiction, and second possession offenses generally received a mandatory minimum sentence without parole or probation.

The Commission recommended the following change in federal law:

“Possession of marijuana for personal use would no longer be an offence but marijuana possessed in public would remain contraband subject to summary seizure and forfeiture.”

“The Commission feels that the criminalization of possession of marihuana for personal is socially self-defeating as a means of achieving this objective. We have attempted to balance individual freedom on one hand and the obligation of the state to consider the wider social good on the other. We believe our recommended scheme will permit society to exercise its control and influence in ways most useful and efficient, meanwhile reserving to the individual American his sense of privacy, his sense of individuality, and, within the context of an interacting and interdependent society, his options to select his own life style, values, goals and opportunities.”

The Shaffer Commission delivered its report to President Nixon in 1972

The War on Drugs took on a new impetus during the 1980’s. The era witnessed the emergence of the Medellin Cartel, a foreshadow of what was to come in the 1990’s and 2000’s in Mexico and a by-product of global prohibition. The Reagan administration took a zero tolerance approach towards drug use and as a consequence spending on the War on Drugs accelerated shifting drug control resources from health agencies to the Department of Justice. The Reagan administration claimed that owing to the surge in cocaine use, stiffer penalties were required. However, they neglected to mention that the rise in cocaine use was not without precedent. In the mid-1880s, cocaine was introduced into the United States and was used widely through the early 1900s. Cocaine was promoted as a remedy for respiratory ailments, as an aphrodisiac, and as an antidote for morphine addiction and alcoholism.

In 1986, Congress passed the Anti-Drug Abuse Act, requiring stringent federal prison sentences for everyone from large-volume dealers to low-level couriers. The 1986 Act established two tiers of mandatory prison terms for first-time drug traffickers: a five-year and a ten-year minimum sentence. Under the statute, these prison terms were triggered exclusively by the quantity and type of drug involved in the offence. For example, the ten- year penalty is triggered if the offence involved at least one kilogram of heroin or five kilograms of powder cocaine or 50 grams of cocaine base. Under the Act’s approach, higher mandatory minimum penalties can apply if the offender previously had been convicted of a drug trafficking offence. One of the most draconian provisions arose in respect of those found in possession of crack cocaine for personal use. If the accused had 5 grammes in their possession, they would be subject to a mandatory 5 year . This accelerated a process that contributed to mass incarceration of non- violent drug offenders which rose from 50,000 in 1980 to 400,000 by 1997.

The Anti-drug Abuse Act of 1988

Reagan signed the Anti-drug Abuse Amendments Act of 1988 which upped the ante of the 1986 act by making life without parole the sentence for offenders who are on their third strike with two or more prior convictions. It also establishes a national director of drug policy, William J. Bennett, who becomes known as the first ‘drug czar.’

Ending Prohibition – 1973-2016

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    National Organization for the Reform of Marijuana Laws (NORML) founded

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    In 1972, NORML files an administrative petition with the DEA. “NORML’s petition called on the federal government to reclassify marijuana under the Controlled Substances Act as a Schedule II drug so that physicians could legally prescribe it. Federal authorities initially refused to accept the petition until mandated to do so by the US Court of Appeals in 1974, and then refused to properly process it until again ordered by the Court in 1982…Fourteen years after NORML’s initial petition, in 1986, the DEA finally held public hearings on the issue before an administrative law judge. Two years later [on Sep. 6, 1998], Judge Francis Young ruled [in the matter of Marijuana Rescheduling Petition, Docket No. 86-22] that the therapeutic use of marijuana was recognized by a respected minority of the medical community, and that it met the standards of other legal medications.”The final ruling in the case was made Feb. 18, 1994.

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    Oregon becomes the first state to pass cannabis decriminalization legislation

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    Dutch government passes the Revised Opium Act 1976 was a compromise between outright prohibition and social integration of illegal drugs. The Act was subsequently amended. The sale of cannabis is technically an offence under the Opium Act, but prosecutorial guidelines provide that proceedings will only be instituted in certain situations. An operator or owner of a coffee shop (which is not permitted to sell alcohol) will avoid prosecution if he/she meets certain criteria.

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    In 1978, New Mexico passed the first state law recognizing the medical value of marijuana [Controlled Substances Therapeutic Research Act]. Over the next few years, more than 30 states passed similar legislation.

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    In 1980, the National Cancer Institute (NCI) began experimental distribution of a new drug called Marinol, an oral form of THC (the primary active ingredient in marijuana), to cancer patients in San Francisco. Simultaneously, six states conducted studies comparing smoked marijuana to oral THC in cancer patients who had not responded to traditional antivomiting medication. These state-sponsored studies revealed that thousands of patients found marijuana safer and more effective than synthetic THC. Meanwhile, the NCI experiments showed that some patients responded well to Marinol… Confronted with two different medical recommendations, the government chose to dismiss the state studies and give Marinol the green light

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    May 1985 – Marinol Approved by FDA.”Made by Unimed, Marinol is the trade name for dronabinol, a synthetic form of delta-9 tetrahydrocannabinol (THC), one of the principal psychoactive components of botanical marijuana. It was approved in May 1985 for nausea and vomiting associated with cancer chemotherapy in patients who fail to respond to conventional antiemetic treatments. In December 1992, it was approved by FDA for the treatment of anorexia associated with weight loss in patients with AIDS. Marketed as a capsule, Marinol was originally placed in Schedule II.”

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    Drug Enforcement Administration administrative law judge Francis Young rules in favor of NORML to make cannabis a medicine, citing among many affirming reasons “Marijuana in its natural form is one of the safest therapeutically active substances known to man.”The Reagan administration and Department of Justice appealed DEA administrative law judge Young’s ruling seeking to uphold a total ban on cannabis—even for sick, dying or sense-threatened medical patients whose physicians recommend cannabis as a safe and non-toxic therapeutic agent.

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    Miles Herkenham, Senior Investigator at the National Institute of Mental Health, and his research team discover the cannabinoid receptor system in 1990. The discovery helps scientists understand the pharmacological effects of cannabinoids, which occur when the THC in marijuana binds with the cannabinoid receptors in the brain.

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    Voters in California pass a state medical marijuana initiative in 1996. Known as Proposition 215 it permits patients and their primary caregivers, with a physician’ s recommendation, to possess and cultivate marijuana for the treatment of AIDS, cancer, muscular spasticity, migraines, and several other disorders; it also protects them from punishment if they recommend marijuana to their patients

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    Colorado and Washington become the first states to fully legalize cannabis in the United States. However cannabis remains a schedule 1 drug under the Controlled Substances Act 1971.

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    On December 23, 2013, Uruguay became the first country in the world to fully legalise the production, sale and consumption of marijuana for personal use when President José Mujica signed law 19.172.

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    Alaska and Oregon legalized recreational cannabis. Alaska’s law took effect on February 25, 2015. Oregon’s initiative began on July 1, 2015

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    California, Nevada and Massachusetts legalized recreational cannabis.

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