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Marihuana, A Signal of Misunderstanding - Table of Contents
Marihuana, A Signal of Misunderstanding - Table of Contents

The Report of the National Commission on Marihuana and Drug Abuse

I. Control of Marihuana, Alcohol and Tobacco

History of Marihuana Legislation*

TIGHTENING THE LAW

After the passage of the Marihuana Tax Act, the FBN began with a four-pronged enforcement policy:

  1. Control of cultivation of the plant for legitimate purposes and eradication of wild growth;
  2. Pacification of marihuana-sensationalism in the press;
  3. Education of the federal judiciary toward strict application of the law; and
  4. Allocation of federal enforcement resources toward major trafficking rather than petty possession offenses.

The scope of the plant's growth, the transportability of the seeds, the dormancy of the seeds, and the lack of a highly efficient herbicide militated against a comprehensive eradication program. The cost of such a program would have been substantial even if success were assured. No active effort was undertaken to conduct an acre-by-acre survey of the United States.

The eradication "program" became simply a matter of reaction to routine information-letters from farmers who had identified the plant and discoveries of acreage by law enforcement agents.

As the Bureau's interest in marihuana subsided during the 1940's, so did the effort to eradicate the wild growth. In fact, the Federal Government encouraged the cultivation of hemp during the war, even though an inactive strain had not been developed, because sources of sisal rope had been severed by Japan's occupation of the Philippines. All over the United States, the weed remained plentiful and largely undetected.

After passage of the Act, Commissioner Anslinger directed his agents to discourage local officials from playing up any alleged involvement of marihuana with crime to the press. On April 11, 1938, the Commissioner told his New York District Supervisor that:

Our present policy is to discourage undue emphasis on marihuana for the reason that in some sections of the country recently press reports have been so exaggerated that interest in the subject has become almost hysterical and we are therefore trying to mold public opinion along more conservative and saner lines (Anslinger, April 11, 1938).

Immediately following passage of the Act, the FBN also directed an "educational" effort toward the federal judiciary to emphasize the need for severe sentences for marihuana offenders. The Bureau also concentrated on the stifling of suppliers, large interstate traffickers, and smugglers. Small possession cases were to be left to local authorities.

Several factors, however, served to frustrate this policy. First, marihuana traffic was highly disorganized and there was no national or regional network as such (New York City, 1945). Second, use was still concentrated geographically and socioeconomically and was not a major enterprise. Finally, during the war years, the Bureau abandoned responsibility for most marihuana law enforcement to the states, where the disorganized traffic and regional use could be most effectively controlled. The FBN chose instead to concentrate on the opiates.

After the relative quiet of the war years there was apparently a significant increase in narcotic drug abuse in the late, 1940's and the public began to be concerned with the spread of narcotic addiction, particularly among young persons. Congressional furor was aroused by the assertion that the use of marihuana inevitably led to the use of these harder drugs, particularly heroin.

The new legislation came in two waves. In 1951, Congress passed the Boggs Act (Boggs Act, November 2, 1951: 767) which increased penalties for all drug violators. For the first time in federal drug legislation marihuana and the narcotic drugs were lumped together, since the Act provided uniform penalties for the Narcotic Drugs Import and Export Act (Boggs Act, November 2, 1951: 767) and the Marihuana Tax Act (21 USC 1964). The states followed the federal lead. Then, in 1956, Congress passed the Narcotic Control Act, escalating the penalties still further. Once again the states responded in kind.

The hearings before the Subcommittee of the House Ways and Means Committee and the floor debate indicate that the Boggs Act was motivated by a. perceived increase in narcotic use in the period 1948 to 1951 (Kefauver Committee Hearings, 1951: 240-241; New York Times, 1951).

Representative Boggs, speaking during the Congressional debate on his bill, enunciated a concern which was reflected in many other quarters. After noting that there had been a 24% increase in arrests for narcotic violations between 1949 and 1950 and a 70% increase between 1948 and 1950, Representative Boggs stated:

The most shocking part about these figures is the fact that there has been an alarming increase in drug addiction among younger persons. In the first six months of 1946, the average age of addicted persons committed . . . at Lexington, Kentucky, was 37.5 years. Only three patients were under the age of 21. During the first six months of 1950, only four years later, the average had dropped to 26.7 years and 766 patients were under the age of 21... (Congressional Record, 1951: 8197).

Representative Boggs and others supported the mandatory minimum sentences for drug peddlers because they felt that some federal judges had been lax in enforcing the narcotic laws (Congressional Record, 1951: 8197, 8207, 821 1). Public opinion was overwhelming that harsh sentences, including the death penalty for peddling narcotics to minors, would strangle the drug monster then stalking the American youth (Kefauver Committee Hearings, 1951: 430-431).

The Boggs Act was directed in large part at the federal judiciary since a key provision removed judicial discretion in sentencing by providing that upon conviction for a second or subsequent offense the imposition or execution of the sentence could not be suspended nor probation granted.

There had been no concerted lobbying effort by the judicial community during the legislative process; however, James V. Bennett, Director of the U.S. Bureau of Prisons, aroused the judges in the Fifth U.S. Circuit District into eventually recommending the amendment of the law to remove provisions for mandatory minimum sentences (Yew Orleans Statesman, May 28, 1954; New Orleans Times-Picayune, May 28, 1954).

Even while the Boggs Act was still pending in Congress, the Bureau of Narcotics encouraged the states to modify their existing narcotic and marihuana legislation to enact "penalties similar to those provided in the Boggs Bill [which] would be of material assistance in the fight against the narcotic traffic" (Federal Bureau of Narcotics, 1950: 6).

Seventeen states and the territory of Alaska responded by passing "little Boggs Acts" by 1953 and 11 other states increased their penalties by 1956. Two of the latter group, Ohio and Louisiana, enacted penalty provisions which were substantially more severe than those passed previously in any jurisdiction (Federal Bureau of Narcotics, 1956: 28).

The Ohio law, approved June 16,1955, provided a 20 to 40 year sentence for the sale of narcotic drugs. The Louisiana measure, adopted the following year, provided severe prison sentences without parole, probation, or suspension for the illegal sale, possession, or administration of a narcotic drug. The sentences ranged from a five-year minimum to a 99-year maximum (Federal Bureau of Narcotics, 1951: 8).

Underlying the inclusion of marihuana in the scheme of increased penalties was the progression theory. In the Boggs hearings many witnesses testified to the link between marihuana use and ultimate heroin addiction. Commissioner Anslinger, for example, testified:

The danger is this: Over 50 percent of these young addicts started on marihuana smoking. They started there and graduated to heroin; they took the needle when the thrill of marihuana was gone (Boggs Act Hearings, 1951: 206).

Representative Boggs himself summed up the stepping-stone thesis in House floor debate:

Our younger people usually start on the road which leads to drug addiction by smoking marihuana. They then graduate into narcotic drugs-cocaine, morphine, and heroin. When these younger persons become addicted to the drugs, heroin, for example, which costs from $8 to $15 per day, they very often must embark on careers of crime ... and prostitution ... in order to buy the supply which they need (Congressional Record, 1951: 8197-8198).

The stepping-stone theory thus supplanted the older hypotheses which had linked marihuana to addiction, insanity and violent crime.

In a paper filed as an exhibit to the hearings on the Boggs Act, Dr. Harris Isbell, Director of Research at the Public Health Service Hospital in Lexington, Kentucky, stated that marihuana was not physically addictive, although he paid lip service to the psychological dependence hypothesis (Boggs Act Hearings, 1951: 147-148).

Acknowledging the possibility of "temporary psychosis" in "predisposed individuals," Isbell otherwise disputed the crime and insanity thesis. Before the Kefauver Committee in the Senate he testified that:

[M]arihuana smokers generally are mildly intoxicated, giggle, laugh, bother no one, and have a good time. They do not stagger or fall, and ordinarily will not attempt to harm anyone.

It has not been proved that smoking marihuana leads to crimes of violence or to crimes of a sexual nature. Smoking marihuana has no unpleasant after-effects, no dependence is developed on the drug, and the practice can easily be stopped at any time. In fact, it is probably easier to stop smoking marihuana cigarettes than tobacco cigarettes (Kefauver Committee Hearings, 1951: 119).

Some observers felt that the narcotics problem had disappeared almost entirely from the national scene after the Boggs Act was passed. Nevertheless, state and federal law enforcement authorities, armed with data suggesting that the strengthening of the drug laws had at least halted the increase in drug use, pressed for further increases in penalties in order to root out the drug menace entirely (Federal Bureau of Narcotics. 1956: 28). Without extended debate or widened public interest, Congress passed the Narcotic Control Drug Act in 1956 (Daniel Committee Hearings, 1955: 57).

There was less attention paid to marihuana during Congressional debate in 1956 than had been the case in 1951. But, the established precedent of classifying marihuana with hard narcotics continued and resulted in a proliferation of marihuana offenses and a, further increase in penalties based on the theory that the end of the American narcotics experience could thereby be assured.

However, efficacy of still higher penalties was not uniformly accepted among law enforcement officials; the Deputy Commissioner of the FBN suggested that more severe penalties might press grand juries not to indict and the petty juries not to convict in drug cases. Others rejected this view and felt strongly that more severe penalties were imperative if society was to be rid of its present peddlers and if new entrants into the narcotics business were to be deterred (Good, July 31, 1954).

Among congressmen considering the Bill, there was no dissent from the proposition that harsher penalties were the means to eliminate the illicit use and sale of all drugs (Congressional Record. 1956: 10689).

In addition to facilitating enforcement of narcotics laws through a number of ancillary provisions, the Narcotics Control Act of 1956 established the following penalties:

Possession Minimum sentence
First offense 2 years
Second offense 5 years
Third and subsequent offense 10 years
Fine $20,000
Sale Minimum sentence
First offense 5 years
Second offense 10 years
Sale to minor by adult 10 years

Parole or probation were made unavailable to all except first offenders in the possession category (26 TTSC, 1964).

The Act also created a new offense by prohibiting illegal importation of marihuana. Simple possession was by statute sufficient to convict the possessor of knowingly receiving illegally imported marihuana (21 USC, 1964).

Few legislators recognized that marihuana was in any way different from the physically addictive narcotics. The House Subcommittee on Narcotics, which produced what became the essentials of the 1956 Act, had inserted a footnote to the major heading "Narcotics" which stated in fine print that the term narcotics included marihuana (U.S. Code Cong. and Ad. News, 1956: 3294). Only once during the Congressional debates on the House and Senate versions of the Bill was the subject of marihuana as a separate substance even raised.

Moreover, in a statement reflecting the general acceptance of the stepping-stone concept, Senator Daniel, Chairman of the Senate Subcommittee that investigated the drug problem, described marihuana:

That is a drug which starts most addicts In the use of drugs, Marihuana, in itself a dangerous drug, can lead to some of the worst crimes committed by those who are addicted to the habit. Evidently, its use leads to the heroin habit and then to the final destruction of the persons addicted (U.S. Code Cong. & Ad. News, 1956: 3294).

By the fifties, marihuana had been fully integrated into the narcotics legislation of every state in the Union and of the national government. Possession of the drug, even for one's own use, was a felony everywhere, and the user was subject to long periods of incarceration as punishment for his indulgence.


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