The Illegalization of Marijuana: A Brief History

On the first day of 2014, Colorado became the first state to permit marijuana dispensaries to sell pot for recreational use. Across the state, celebratory stoners welcomed the New Year by lining up at licensed retailers to buy bags of (heavily taxed) artisanal marijuana, with varietal names like Pineapple Express and Alaskan Thunderbolt.

Since the first statewide medical marijuana laws went into effect in California in 1996, the number of Americans with legal access to what for many is a pleasurable drug has been steadily growing.

Twenty states and the District of Columbia now permit the sale of various forms of marijuana for medical purposes; in the past several months, the governor of New York, a state known since 1973 for its punitive drug laws, announced that he too would pursue accommodation for medical marijuana; and recreational marijuana is expected to be offered for sale in Washington State later this year.

Recently, the District of Columbia decriminalized the possession of an ounce or less of marijuana, treating it as a civil offense from now on.

In the least restrictive jurisdictions, purchasing medical marijuana requires a perfunctory visit to a “pot doc”—licensed physicians who specialize in prescribing marijuana, easily located through online and newspaper advertisements—for the diagnosis of any of dozens of conditions, including chronic pain, gastrointestinal distress, and depression, which the drug is believed to help alleviate.

Medical marijuana remains solidly in the realm of alternative medicine, and few clinical studies have been conducted to confirm specific claims.

After paying a consultation fee on the order of $100, new medical marijuana patients are issued a card that allows them to shop at a dispensary or order from delivery services that offer cultivars of the two major strains of the plant, Cannabis indica and Cannabis sativa, as well as potions, baked goods, and candies made from its extracts.

With the current state-level push toward legalization, voters seem to have found a way around the twentieth-century quest for prohibition—a prohibition that has become increasingly difficult to explain or justify.

Consider that marijuana remains on the federal government’s list of Schedule I drugs, defined as the most dangerous of the controlled substances, and is labeled as posing a severe risk of addiction, although many physicians don’t believe that to be true.

Unlike alcohol, excessive pot smoking has not been unambiguously implicated in violent behavior or poor health. As a Schedule I drug, under federal law, marijuana is considered to have no medical use, although there are thousands of patient testimonials to the contrary.

And perhaps the biggest contradiction of all is that since the century-long drive for prohibition was initiated, marijuana has become extremely popular. Every year, hundreds of thousands of unlucky citizens face criminal sanctions for getting caught with a drug that one third of all Americans—including college students, professional athletes, legions of entertainers, and the past three U.S. Presidents—have experimented with at least once. In popular culture, the drug has become accepted as harmless fun. In 2014, a talk show host can joke with a former congressman about being pot smokers on cable TV.

As Americans consider further legalizing marijuana it is worth reviewing how the use of this plant became illegal in the first place and why prohibition persists in much of the country more than a half century after its use became common.

Interestingly, while marijuana use has been an urgent topic of conversation for over a century in this country, the voices of doctors and scientists have been largely quiet. Instead, the debate has been shaped by media portrayals of drug use and reinforced by politicians and advocacy groups that supported them.

From Commonplace to Illegal

Today, in states with the most liberal marijuana laws, citizens’ access to the drug now resembles that of the nineteenth and early twentieth centuries, before the first attempts at federal regulation.

Cannabis, like opiates and cocaine, was freely available at drug stores in liquid form and as a refined product, hashish. Cannabis was also a common ingredient in turn-of-the-century patent medicines, over-the-counter concoctions brewed to proprietary formulas.

Then, as now, it was difficult to clearly distinguish between medicinal and recreational use of a product whose purpose is to make you feel good. The hashish candy advertised in an 1862 issue of Vanity Fair as a treatment for nervousness and melancholy, for example, was also “a pleasurable and harmless stimulant.” “Under its influence all classes seem to gather new inspiration and energy,” the advertisement explained.

While there were fads for cannabis across the nineteenth century, strictly recreational use was not widely known or accepted.

During this period, American druggists were familiar with hashish and other preparations of cannabis, and the marijuana plant had been widely cultivated for the hemp fiber used in rope and ships’ riggings.

But the practice of smoking marijuana leaf in cigarettes or pipes was largely unknown in the United States until it was introduced by Mexican immigrants during the first few decades of the twentieth century. That introduction, in turn, generated a reaction in the U.S., tinged perhaps with anti-Mexican xenophobia.

The first attempt at federal regulation of marijuana came in 1906, with the passage of the Pure Food and Drug Act. The act included cannabis among the various substances patent medicine companies were required to list on their labels in order that worried customers could avoid it.

Then, between 1914 and 1925, twenty-six states passed laws prohibiting the plant. The anti-marijuana laws were uncontroversial and passed, for the most part, with an absence of public outcry or even legislative debate.

Flush with success in pushing through alcohol prohibition, temperance campaigners in the 1920s began turning attention toward opiates and cocaine, which had become prohibited under increasingly strict Supreme Court interpretations of the 1914 Harrison Narcotics Act.

Former Spanish-American War hero Richmond P. Hobson, who had been the Anti-Saloon League’s best-paid public speaker, began warning of a dire threat posed by narcotics to national survival and the national character. Newspapers and magazines published melodramatic and sensational stories about the threat of narcotics addiction and the horrible plight of those caught in narcotics’ grip.

Following a Hollywood drug scandal in 1921, the newspapers published by William Randolph Hearst launched what became an annual crusade against narcotics with a hyperbolic and tear-jerking account by star reporter, “sob sister” Winifred Black, who also wrote under the name Annie Laurie.

Hearst’s efforts, timed to coordinate with Hobson’s annual Narcotic Education Week, exploited a new angle during the second half of decade: depicting marijuana as the largely unknown drug of murder, torture, and hideous cruelty (such as this example from 1927).

The fact that marijuana smoking was a habit of immigrants and the lower class clearly played a role in its prohibition, though there is little indication that Hearst was more racist than might be expected of a man of his time and station.

The association of murder, torture, and mindless violence with marijuana was not borne out by evidence or actual events but blossomed thanks to the vivid imaginations of the journalists charged with sensationalizing the tired story of drug use and addiction. Until a few decades prior, the public was acquainted with opiates from widespread medicinal use, and with cocaine from its presence in drugstore potions including Coca-Cola.

Journalists, politicians, police, and middle-class readers had no similar familiarity with marijuana, allowing it to become the vessel for their worst fears: addicting, personality-destroying, violence-causing. For the journalists in the 1920s charged with composing annual anti-narcotics jeremiads for Hearst’s famously sensational newspapers, a new “murder” drug must have seemed a gift.

Prohibition Repealed, But Not for Drugs

In the 1930s, the nation’s top anti-narcotics official took up the anti-marijuana cause.

Ironically, Harry J. Anslinger, a former assistant commissioner of the Prohibition Bureau who headed the U.S. Treasury Department’s Narcotics Bureau from 1930 to 1962, initially opposed federal legislation against marijuana because he foresaw it would be difficult for his agency to enforce.

However, Anslinger began to capitalize on fears about marijuana while pressing a public relations campaign to encourage the passage of uniform anti-narcotics legislation in all 48 states. He later lobbied in favor of the Marijuana Tax Act of 1937.

In Congressional testimony, Anslinger drew from what became known as his “gore file” of brutal murders and rapes allegedly committed by people high on pot. (That the marijuana was a causal factor for the crime was taken for granted.) “How many murders, suicides, robberies, criminal assaults, holdups, burglaries and deeds of maniacal insanity it causes each year can only be conjectured,” Anslinger wrote in a 1937 article in American Magazine title “Marijuana, Assassin of Youth.”

It was surely no coincidence that the scare movie Reefer Madness came a year earlier.

The 1937 Marijuana Tax Act, which regulated the drug by requiring dealers to pay a transfer tax, passed in the House after less than a half-hour of debate and received only cursory attention in the press. House members seem not to have known a great deal about the drug. In response to a question from another member, Speaker of the House Sam Rayburn (D-Tex.) explained that marijuana was “a narcotic of some kind,” while another Representative John D. Dingle (D-Mich.) appeared to confuse it with locoweed, a different plant.

In hearings, the only witness to speak against the bill was a representative of the American Medical Association, who congressmen accused of obstructionism and misrepresenting the AMA’s views.

Anslinger favored strict legal penalties against the use of narcotics, including marijuana, and worked behind the scenes to defund or discredit research that contradicted his views on the danger of these drugs or the effectiveness of prohibition.

When New York Mayor Fiorello LaGuardia and the New York Academy of Medicine produced a report in 1944 concluding that marijuana was only a mild intoxicant, it was pre-emptively attacked in the American Journal of Psychiatry in an article solicited by Anslinger.

Fourteen years later, Anslinger tried to prevent publication of a joint American Bar Association-American Medical Association study that suggested penalties for possession were too harsh. The report was ultimately published by the Indiana University Press after narcotics agents convinced the original sponsor to drop funding.

Through the 1950s, lawmakers and journalists seemed to have little patience or interest for fine distinctions among illegal drugs. Heroin, cocaine, or marijuana were all “dope”: dangerous, addicting, frightening, and bad.

The Kids Are Alright? Marijuana Comes to Campus

Views of drugs changed in the mid-1960s, with increasing reports about a new type of marijuana smoker: college students.

Along with uppers and downers—the amphetamine and barbiturate pills that had become ubiquitous through nearly every segment of American society—journalists found that the sons and daughters of America’s middle class were taking to marijuana.

The pronounced expansion of marijuana use among youth in the 1960s had no single cause. In the sweet-smelling haze, observers have seen mutiny against the values of the previous generation and the War in Vietnam, an admiration for the free-spirited Beats, and the freedom born from an excess of material wealth and time.

For many youth, smoking pot seemed harmless fun, perhaps just a little more fun because it was against the law. The mild pleasures of the drug itself seemed to refute the logic of the laws against it.

By 1965, the epidemic of drugs on campus occupied the front pages of newspapers, but neither journalists nor legislators had any enthusiasm for locking up America’s best and brightest for what increasingly seemed like a trivial offense.

By the 1960s, even Anslinger conceded the criminal penalties then in force for youthful marijuana use were too severe. In 1967, not only hippie activists but the solidly mainstream voices of Life, Newsweek, and Look magazines questioned why the plant was illegal at all.

Meanwhile, the number of state-level marijuana arrests increased tenfold between 1965 and 1970.

Drugs and the “Law and Order” Presidency

Elected to the presidency in 1968 on a promise to restore “law and order” to a nation jolted by riots, protests, and assassinations, Richard Nixon aggressively recruited journalists and media executives to participate in what he declared would be a War Against Drug Abuse.

The public relations push included attempts to strong-arm radio broadcasters to cease playing drug-themed music and recruiting television personality Art Linkletter and (oddly) the pill-popping Elvis Presley as anti-drug spokesmen. (Presley never actually did any work on behalf of the anti-drug campaign but did request that Nixon give him a badge from the Bureau of Narcotics and Dangerous Drugs. The photo of their meeting has become the most requested item from the National Archives.)

At a White House event for television executives in 1970, Nixon obtained pledges that anti-drug themes would be inserted in twenty prime-time shows, ranging from “Hawaii Five-O” to “Marcus Welby M.D.” (Prior to this time, television programing, like studio films, avoided drug themes.) By applying pressure to television stations and sponsors, the Nixon administration collected $37 million worth of commercial airtime for anti-drug messages by 1971.

Changes in federal drug policy during the Nixon administration loosened penalties for some kinds of drug violations, while expanding the powers of law enforcement (including the creation of no-knock and late-night search warrants) and reshaping the federal anti-drug agencies to be more directly responsive to White House control.

In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, which placed marijuana in the most restrictive category of drugs having no permissible use in medical practice. The scheduling of marijuana was suggested by an Assistant Secretary of Health pending the report from a Commission on Marijuana and Drug Abuse, headed by a former governor of Pennsylvania Raymond Shafer with members appointed by the president, speaker of the House, and the president pro tem of the Senate.

The report, which was released in its final form in 1973, called for an end to criminal penalties for marijuana possession and also an end to the government’s anti-drug education efforts, which the report decried as wasted money. White House tapes recorded Nixon pressuring Shafer to reject the committee’s findings, and the president refused to receive the report in public.

Nixon’s director of the Narcotics Treatment Administration recalled to Frontline documentarians that when he joined the administration the president told him, “You’re the drug expert, not me, on every issue but one, and that’s decriminalization of marijuana. If you make any hint of supporting decriminalization, you are history. Everything else, you figure it out. But that one, I’m telling you, that’s the deal.”

There was a tautological aspect to Nixon’s opposition to marijuana. The president, whose preferences ran toward mixed drinks, detested marijuana precisely because the drug was illegal, and to smoke pot was to embrace the lawlessness that he saw as sweeping the country.

“Believe me, it is true, the thing about the drug [marijuana], once people cross that line from [unintelligible] straight society to the drug society, it’s a very great possibility they are going to go further,” Nixon told Linkletter in a private conversation preserved by the White House’s secret taping system. “You see, homosexuality, dope, immorality in general. These are the enemies of a strong society. That’s why the communists and left-wingers are pushing the stuff, they are trying to destroy us.”

As the particular fears that motivated anti-marijuana legislation dissipated, attitudes toward marijuana prohibition became a litmus test for attitudes about the relationship between law and personal judgment. The laws gave the drug an extra attraction for youth experimenting with rebellion, but within the logic of “law and order,” disrespect for the law seemed to be the root of many problems. The anti-war protesters, Nixon believed, were “all on drugs.”

An Easing of Attitudes in the 1970s

Despite Nixon’s unyielding anti-marijuana stance, during the early and middle 1970s, there was a growing consensus that criminal punishments for pot were contrary to the public interest; and medical and legal authorities were disputing the logic of harsh anti-marijuana laws.

The National Parent Teacher Association Congress, American Medical Association, American Bar, American Public Health Association, National Education Association, and the National Council of Churches all passed resolutions endorsing decriminalizing possession of small amounts of marijuana. The Committee for Economic Development and the Consumers Union agreed.

The New York Times, Washington Post, and the conservative National Review all editorialized in favor of decriminalization. The film Reefer Madness—which had been made to scare the nation about the dangers of marijuana—was now being released by pro-marijuana campaigners as a comedy on the midnight movie circuit.

By 1977, the use of the drug seemed so commonplace and the fears so archaic that President Jimmy Carter called for the decriminalization of marijuana. As Carter pointed out in a message to Congress in 1977, anti-marijuana laws cause more harm to marijuana users than the drug itself.

Drugs and the Media in the Age of “Just Say No”

Still, not everyone had grown comfortable with drugs’ increasing prevalence and the loosening of attitudes about them.

In 1976, Marsha “Keith” Schuchard and her husband, Ronald, were appalled when confronted with evidence that their 13-year-old daughter was smoking pot. With a neighbor in their suburban Atlanta neighborhood, Sue Rusche, Schuchard formed Families in Action, a parents’ group that promoted anti-drug education and zero-tolerance policies.

Within a few years, they had formed organizations that offered support to thousands of similar groups around the country. Under commission from the federal National Institute on Drug Abuse, Schuchard wrote a handbook for parent organizations, Parents, Peers, and Pot. More than a million copies were distributed and more than 4,000 parents’ groups formed by 1983.

Schuchard stated in the book that her goal was to protect psychologically vulnerable children from a popular culture that pushed them toward drugs, not to advocate prohibition for adults. However, the fine distinction was lost by politicians who built on the movement’s support.

Ronald Reagan had opposed decriminalization of marijuana as governor of California and, as president, showed no sympathy for drug use or users.

Prompted largely by fear over crack cocaine, Congress passed three major pieces of anti-drug legislation during the 1980s, each more punitive than the last. In 1986, Reagan called for the implementation of drug testing to ensure that schools and workplaces remained “drug-free.”

As in the past, the generalized fear of “drugs” distinguished only between teetotalers and criminals. Drugs were drugs, albeit federal sentencing guidelines made some drugs much worse.

During the Reagan administration, the White House spearheaded an extensive anti-drug media campaign that was soon joined by nonprofit and independent groups. Soon after the election of her husband, First Lady Nancy Reagan took on the mission of spreading an anti-drug message, unveiling her “Just Say No” slogan at an elementary school in 1982.

In the years that followed, Nancy Reagan recited the slogan at rallies and public appearances across the country, in public service announcements designed by the Ad Council, in thousands of billboards, and on dozens of talk shows.

The Drug Abuse Resistance Education (DARE) program, which brought police into schools to lecture against drugs, was also founded during this period, as were clubs in many schools that enticed pupils to sign anti-drug pledges.

The Partnership for a Drug-Free America, founded by a group of advertising executives in 1985, introduced its “This is your brain on drugs” public service advertisements a few years later.

Highlights in the media barrage must also include the White House-sponsored “Stop the Madness” music video starring, among many others, New Edition, LaToya Jackson, and Whitney Houston, with a brief appearance by Nancy Reagan.

Government surveys showed that drug use declined during the 1980s, but ending “the scourge of drugs” was still a successful campaign issue for George H. W. Bush when he pursued the presidency in 1988.

Concern over drug use appeared to peak in September the following year, when 64 percent of respondents in a New York Times/CBS News poll identified drugs as the single most pressing issue facing the nation, not long after Bush gave an Oval Office speech on the subject.

The media campaign against drugs persisted well into the 1990s, in every medium imaginable, from television to t-shirts to milk cartons, as a cause ostensibly absent of political overtones.

Evidence is mixed on whether anti-drug media campaigns served their purpose of reducing drug use. A study of the National Youth Anti-Drug Media Campaign from 1998 to 2004 found that the $1.2 billion federal initiative was not effective in reducing drug use, and may even had the reverse effect on some youth, by sparking teens’ curiosity.

The DARE program was curtailed in many parts of the country after a number of studies found no evidence that it resulted in decreased drug use among children.

These programs certainly seem to have been effective in raising the profile of the drug issue and maintaining public concern. Even for a president such as Bill Clinton, who admitted smoking (but not inhaling) marijuana, continuing to warn the public against the threat while pledging an undying effort to fight it must have seemed better politics than suggesting a compromise.

In 1998 and 1999, Clinton’s drug czar, Barry McCaffery, paid out $25 million to five major television networks for writing anti-drug messages into specific prime-time shows, with the White House reviewing and signing off on scripts in advance.

The Road to Legalization?

Over the past few decades, it was possible to joke about weed in the media—there were of course still Snoop Dogg, Willie Nelson, and Cheech and Chong—but decades of intense anti-drug propaganda have made it awfully hard for anyone to credibly support something called “drugs.”

Since the beginning of the twentieth century, there have been persistent links between political decisions about drug policy and efforts to influence public opinion.

Following the anti-drug campaigns of recent years, it is fascinating to note that today’s liberalization efforts have largely succeeded not by trying to shift attitudes about drugs, but by redefining marijuana as medicine and by focusing on the economic and social costs of the incarceration that has resulted from drug laws.

About 800,000 Americans are arrested annually for marijuana offenses, mostly simple possession. Few wind up in prison as a result of a first offense, but this encounter with the criminal justice system can have serious consequences, including the loss of eligibility for federal student financial aid and subsidized housing.

And the “three-strikes laws,” which 22 states and the federal government passed between 1993 and 1995 and which mandated stiff prison sentences for a person convicted of a third felony, ensure that marijuana offenses can lead to dire results.

Although black Americans smoke pot at a nearly identical rate as whites, they are nearly four times more likely to be arrested because of it.

“It’s important for it to go forward because it’s important for society not to have a situation in which a large portion of people have at one time or another broken the law and only a select few get punished,” President Barak Obama said in a January interview with the New Yorker.

And all taxpayers contribute to the billions of dollars a year required to enforce anti-marijuana laws and punish the offenders. Pot often inspires giggles, but marijuana prohibition has serious implications.

To the extent that these arguments to end the illegalization of marijuana have been persuasive it has largely been the result of voter initiatives, rather than the efforts of politicians.

Further liberalization seems likely. According to Gallup, 58 percent of Americans now favor legalizing marijuana. This has been the first time the firm has recorded a pro-legalization majority since it began asking the question in 1969.

It seems unlikely that “doing drugs” will become acceptable any time soon. But smoking a joint? Maybe.

Depending in which state you pose the question, it might be just fine already.