The Dirty Little Secret Behind Our Drug Laws

Down through the ages with frightening regularity, societies have struck out against what is foreign and unknown. Today in America, people do not understand illicit drugs and their users. Unaware of the background of illicit drug usage and cowed by arguments about its dangers, they assent to government regulations that in other areas of people's lives they regard as odious and worthy of opposition. Is there anything about drugs that in fact merits such an exception?

One of the least understood aspects of this problem is its history. Few people realize that, during most of America's history, any and all drugs were freely available. Still fewer people realize that none of the arguments currently advanced in support of drug laws played more than a minor role in initiating prohibition. Prohibition was almost solely the result of antipathy directed towards specific groups—minorities—associated with drug use.

The Chinese were perhaps the first racial minority attacked in this manner. In 1854, in a case before the California Supreme Court, the court found as a fact that the Chinese are "a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development." The immediate result of the case was to exclude from the courts of California the testimony of Chinese against whites, but the broader consequence was to open the floodgates to discrimination and oppression against the Chinese on a monumental scale.

The popular press excoriated the Chinese, who became the scapegoat for every evil. In 1873 the Democratic Party declared at its California convention

that we regard the presence of the Chinese in our midst as an unmixed evil, ruinous alike to the people and the state, while the prospect of an increase of their numbers is appalling to the hearts of all; and we demand that the incoming legislature, through its own enactments and its urgent appeals to congress, take steps not merely to prevent the further influx of the mongolian horde upon us, but to secure the speedy exodus of those already here.

Quite in line with these sentiments—for it was common knowledge that all Chinese smoked opium—the first two laws prohibiting opium smoking were passed in San Francisco and Virginia City, Nevada, in 1875 and 1876. The racial motivation of these laws was highlighted when in 1887 Congress prohibited the importation of opium by Chinese but not by Americans. Three years later Congress prohibited the manufacture of smokable opium by all but American citizens (Chinese were not permitted to become citizens).

Similar racial antipathy surfaced in a linking of blacks and cocaine. A "Report on the International Opium Commission and on the Opium Problem as Seen within the United States and Its Possessions," sent to Congress in 1910 with a message from President Taft requesting appropriate legislation, included the observation: "It has been authoritatively stated that cocaine is often the direct incentive to the crime of rape by the negroes of the South and other sections of the country."

As David F. Musto, M.D., explains in The American Disease:

The most passionate support for legal prohibition of narcotics has been associated with fear of a given drug's effect on a specific minority. Certain drugs were dreaded because they seemed to undermine essential social restrictions which kept these groups under control: cocaine was supposed to enable blacks to withstand bullets which would kill normal persons and to stimulate sexual assault. Fear that smoking opium facilitated sexual contact between Chinese and white Americans was also a factor in its total prohibition. Chicanos in the Southwest were believed to be incited to violence by smoking marijuana. Heroin was linked in the 1920s with a turbulent age group: adolescents in reckless and promiscuous urban gangs. Alcohol was associated with immigrants crowding into large and corrupt cities. In each instance, use of a particular drug was attributed to an identifiable and threatening minority group.

As a result of this fear, Congress never publicly debated whether to control narcotics but only how. The Harrison Act implementing narcotic prohibition was passed in a few minutes in December 1914.

PROHIBITION The Harrison Act was designed to prohibit the use of narcotics except for medical purposes. A doctor was permitted to prescribe them "in the course of his professional practice only." Although it is likely that few legislators intended to prohibit the dispensing of narcotics to addicts merely to maintain and not to cure them, doctors were soon being arrested for such activity. In March 1919 the United States Supreme Court, by a 5-4 decision, held the Harrison Act to be constitutional and the maintenance of addicts to be illegitimate. Indeed, the majority considered maintenance such an obviously immoral notion that "no discussion of the subject is required."

Realizing that the sudden removal of formerly legitimate sources of narcotics was to court disaster, many local officials attempted to find temporary sources of supply until addicts could be medically "cured" in clinics planned for the purpose. Few clinics were established, however, before being forced to close by the federal government.

Perhaps the most famous clinic operated in Shreveport, Louisiana, from 1919 until shut down by the government in 1923. It had the complete support of local officials, and within six months of its closure the Shreveport Journal reported that narcotics were readily available on the street, whereas prior to the closure illicit traffic was practically unknown.

Just as with the national prohibition of liquor, or the attempted prohibition of cigarettes by 14 states, the prohibition of narcotics was failing. The knee-jerk response was to call for tougher laws. In 1924 the importation of heroin was forbidden. The act had dramatic effects. Within weeks of the act's passage, morphine—both less expensive and more readily obtainable—almost disappeared from the black market, replaced by the more lucrative and now better publicized heroin. If tougher laws were not the answer, then surely tougher enforcement was: by 1928, almost one-third of all prisoners in federal penitentiaries were serving sentences for Harrison Act violations.

"KILLER WEED" The evolution of the laws prohibiting marijuana followed a similar course. Marijuana was brought to America in 1611 by the Jamestown settlers, who cultivated it for its fiber. It remained a major crop until after the Civil War, and throughout the 19th and early 20th centuries it was widely available as a medicinal and intoxicating agent. And the steps leading to its prohibition had by now become standard.

First, the use of marijuana was linked with a minority—Hispanic-Americans. Reported the National Commission on Marihuana and Drug Abuse, in a retrospective study released in 1972:

Whether motivated by outright ethnic prejudice or by simple discriminatory disinterest, the proceedings before state legislatures [after 1915] resembled those in Texas in 1923. There was little, if any, public attention and no debate. Pointed references were made to the drug's Mexican origins and sometimes to the criminal conduct which invariably followed when Mexicans ingested the killer weed.

Second, a series of gruesome crimes allegedly committed by marijuana smokers was widely publicized. As demonstrated by Edward M. Brecher and the editors of Consumer Reports in the seminal work Licit and Illicit Drugs, some, if not all, of the stories were patent fabrications.

By 1937, 46 states had laws against marijuana, and in that same year the federal prohibition of marijuana was implemented, despite the opposition of the American Medical Association. Again, the response to the failure of prohibition was tougher enforcement. Anti-marijuana propaganda and penalties escalated until in several states the penalties for a first-offense sale of marijuana could be life imprisonment. In Louisiana and Missouri, if the buyer were a minor the death sentence could be imposed.

These draconian penalties were no more effective against marijuana than similar penalties invoked against the ever-widening panoply of other prohibited drugs. In 1959 the federal government tried a new tactic, initiating a program, which has continued to this day, to prevent citizens of other countries from growing crops to supply the illicit market. But this program has had its side-effects. Restriction of the production of opium, for example, has been detrimental not to the illicit market but rather to the legitimate medical market. By 1972 the Japanese and others were complaining in the United Nations of their inability to procure their medical requirements.

NOBLE EDICTS With drug usage pandemic, no one today seriously contends that our drug laws are successful. New and better laws are often thought to be the answer, but the experiences of other cultures in prohibiting the use of drugs casts grave doubts upon such an approach.

Prohibition has been attempted by mankind for thousands of years, but it was not until 1604 that James I of England made what was perhaps the first well-documented attempt at it. In that year he imposed an exorbitant tax on a drug so that only the very rich—the nobility—could afford it. The drug was nicotine, as contained in tobacco, and the tax worked admirably to lower imports. Smuggling of the substance, on the other hand, proliferated. It took James I only four years to realize his error, and in 1608 he drastically cut the tax so as to make importing less expensive than smuggling.

During the 17th century, total prohibition seemed the simplest course in other parts of the old world. Prohibition of tobacco was decreed in the Ottoman Empire, the Persian Empire, India, Russia, Bavaria, Saxony, and Zurich. When the severe penalty of bodily mutilation failed to stem the smuggling, the death penalty was decreed. The result in every country was the same. Prohibition was a complete failure, and its imposition was eventually reversed.

About the same time as tobacco appeared in Europe, the drug caffeine was introduced in the form of coffee. Coffee came from the Middle East, where its appearance prompted Cairo and Mecca to prohibit its sale. Like tobacco before it, coffee was virulently attacked when authorities discovered it was being taken for pleasure, and many European rulers banned its distribution or consumption. Invariably the bans proved ineffective and were dropped.

In 1729 England attempted to curb the sale of gin. The effort was quickly deemed a failure and the law withdrawn. But soon members of the nobility were again clamoring for prohibition via an exorbitant tax—prohibition, that is, for the poor. The supporters of the bill indicated that the entire justification for the bill was to keep gin from "persons of inferior rank." The law was passed in 1736 and was almost universally held in contempt, as it was common knowledge that the ruling class did not consider the law applicable to them. The greater the efforts to enforce it, the more antagonistic the public became. In 1743 the prohibition of gin in England was terminated.

Also in 1729, the emperor of China issued the first decree attempting to limit the importation and consumption of opium. Penalties were progressively intensified until, in 1850, in response to the continually deteriorating situation, a new imperial edict announced that anyone caught possessing opium would be beheaded and his family enslaved. Seven years later the Chinese abandoned prohibition at the behest of the Western powers, who did not want their lucrative opium trade interrupted.

ANTISOCIAL DRUGS? The history of prohibition provides strong evidence that its implementation is impossible and the motives for its implementation sullied, but that same history includes a whole set of arguments supporting drug laws. Even if people realized that these laws were put in place by our racially illiberal predecessors and were never effectively implemented, these arguments appear to make a sound case for trying new versions of drug prohibition.

Probably the argument most often advanced is that drug usage is harmful to society. It socially and physically disables individuals, making permanent parasites or, worse, criminals of them.

This fear derives in part from well-publicized stories of gruesome crimes attributed to drug usage. Many of these alleged incidents, however, as noted earlier, have been patent fabrications. As for the rest, there was almost invariably no attempt to determine that the illicit drug was the actual cause; it was merely assumed.

It is well documented that the effects of a drug on an individual's behavior may be as much, or more, the result of group and individual expectations regarding the drug's effects rather than the actual pharmacological effects of the drug itself. Thus, the widespread publicity surrounding some fabricated horror stories may well have resulted in some real ones. Expectations aside, the actual tendency of most of the illicit drugs is to impede activity, thereby decreasing the likelihood of antisocial behavior.

In his 1969 study, Narcotics Addicts in Kentucky, Dr. John A. O'Donnell found that a substantial number of addicts had, during the many years of prohibition, been receiving narcotics through prescriptions from their doctors. Over 91 percent of the male addicts were never convicted of a crime during the entirety of their addiction. Furthermore, during this period the black market for illicit drugs virtually disappeared in Kentucky. Upon the deaths of the older physicians, however, who were the only doctors willing to run the legal risks of prescribing to addicts, the black market returned.

In 1968 the Journal of the American Medical Association published a report on the Dole-Nyswander methadone maintenance program in New York City. Providing addicts with a legal and therefore inexpensive supply of narcotics (methadone) had resulted in an 88 percent reduction in their criminality. Furthermore, the number of addicts gainfully employed rose from 28 percent prior to maintenance to 85 percent for those remaining 24 months or more, and the number on welfare dropped from 40 percent to 15 percent.

But perhaps the strongest refutation of the charge that drug usage is socially harmful comes again from history: With the exception of the drugs covered by local laws prohibiting alcohol and blatantly anti-Chinese laws like the act of February 23, 1887, prohibiting the importation of opium by Chinese subjects in the United States but not by American citizens, all drugs were freely available in this country prior to the implementation of the Harrison Act in 1915. When there were no drug laws, there was no drug problem.

ANTISOCIAL LAWS Crime and social deterioration have, of course, been associated with drugs. But the conclusion is inescapable that these are the results, not of drug usage, but of the drug laws. They have been instrumental in the formation of large criminal syndicates in our country and in promoting graft and corruption on every level of government. They have cost our society literally hundreds of billions of dollars (the annual cost, according to a recent report of the US House Select Committee on Narcotics, exceeds $27 billion). They have cost tens of thousands of lives from contaminated drugs, hepatitis and other needle-borne diseases, and from crime related to the black-market acquisition of drugs. They have destroyed the careers and lifestyles of hundreds of thousands of our citizens simply by labeling them criminals.

Finally, as our friends and neighbors have violated these laws, their existence has bred disrespect for all laws, and their selective and discriminatory enforcement has bred contempt for the entire legal system. As stated by a narcotics agent testifying before the Select Committee on Crime: "When the drug problem was a Negro problem, everyone went to jail. When it moved out into white communities, we have seen a different standard of justice being applied."

We are periodically presented with the fact that the sons and daughters of our politicians use illicit drugs with seeming impunity, but such use is not limited to the sons and daughters. In 1962 Commissioner Harry J. Anslinger of the Federal Bureau of Narcotics reported the existence of an addict who "was one of the most influential members of the United States Congress. He headed one of the powerful committees of Congress. His decisions and statements helped to shape and direct the destiny of the United States and the free world." Edward Brecher tells how the drug laws applied to this man:

Commissioner Anslinger heard of this man's addiction, recognized the political damage that might follow exposure, and therefore arranged a continuing supply of drugs for the elderly Congressman from a pharmacy on the outskirts of Washington. When a nationally syndicated columnist got a tip on the story from the pharmacist, Commissioner Anslinger staved off exposure by warning the journalist that "the Harrison Narcotic Act provided a two-year jail term for anyone revealing the narcotic records of a drug store. "

What better evidence is there that the whole idea of harmful "dope fiends" is a myth? As Dr. Thomas Szasz points out in Ceremonial Chemistry: when the powerful and wealthy "take psychoactive drugs, they are still respected political leaders who, in their spare time, wage war on drug abuse; when the powerless and the poor take the same drugs, they are 'dope fiends' bent on destroying the nation." The myth of the "dope fiend" was designed to frighten the public into supporting the prohibition of illicit drugs. But laws which allow for incarcerating and even executing individuals should not be based upon a myth.

"AMAZINGLY BLAND" The other classic argument for drug laws is that the illicit drugs are harmful to individuals. Yet today the two most harmful drugs in America—nicotine and alcohol—are legally obtainable. Both have a physical and mental dependence potential; that is, they are addicting, just as narcotics are. But in addition, both nicotine and alcohol are organically damaging. Narcotics are not.

Cigarette smoking causes lung cancer and is a major factor in deaths from coronary heart disease, chronic bronchitis, emphysema, and other diseases. Each year over 300,000 smokers die prematurely as a result of their smoking. Alcohol is responsible for irreversible brain and liver damage and is also a significant factor in homicides, suicides, fatal accidents, the "battered child syndrome," birth defects, and so on, ad nauseum.

In stark contrast, study after study has been forced to conclude that the taking of narcotics results in no measurable organic damage. The point is not that the illicit drugs are safe, but as Edward Brecher and the editors of Consumer Reports concluded in Licit and Illicit Drugs: "There is general agreement throughout the medical and psychiatric literature that the overall effects of opium, morphine, and heroin on the addict's mind and body under conditions of low price and ready availability are on the whole amazingly bland."

Yet the argument from individual harm does not just rest on shaky evidence. It also relies on a questionable political principle—that if sufficient harm were demonstrated, prohibition would be necessary and proper; that individuals should not be allowed to harm themselves. The basis for America's labyrinth of drug laws is, in short, the idea that some of us may force our neighbors not to engage in noncoercive acts that we deem harmful to them or that do not accord with our view of how citizens should live. It is a doctrine of force, a doctrine of intolerance. In America the government seeks to protect its citizens from drugs; in the Third Reich the protection was from Jews.

The crux of the problem is that the public has come to view drug taking, not as unhealthy behavior, but as immoral behavior. Why else would the drug laws remain in the face of all the evidence showing that they are relatively unharmful? Why else would people continue to be allowed access to "approved" drugs such as nicotine and alcohol?

Americans must realize that the widespread belief in the evil of illicit drugs is a carry-over from the unfortunate phase of our history when members of minority groups were regarded as morally inferior, thus justifying intervention in their lives. In each and every case, a particular drug that came to be associated with a particular minority or minority lifestyle was then banned in order to enshrine in law the moral superiority of the nonuser over the user. It is this reality that so readily explains the extreme reticence to eliminate such laws even in the face of their obvious counterproductive nature. And it is this reality that so readily explains the fact that significant opposition to drug control legislation did not develop until illicit drug usage became widespread in white, middle-class America.

One hundred years ago the concept that the State could tell Americans what they could and could not ingest would have been ridiculed. Fifty years ago the concept that the State could tell farmers in foreign countries what they could and could not plant would have seemed bizarre. And today, we must realize that no citizens can long exist free when the majority can prohibit the noncoercive acts of the minority.

Michael Monson earned a degree in history from Dartmouth College and is currently an attorney with a Phoenix, Arizona, law firm.