Schaffer Library of Drug Policy

The History of the Non-Medical Use of Drugs in the United States

by Charles Whitebread, Professor of Law, USC Law School

A Speech to the California Judges Association 1995 annual conference

Links to Related Documents

This speech is derived from The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition by Professor Richard J. Bonnie & Professor Charles H. Whitebread, II

In this speech, Professor Whitebread refers to the following documents which are online in this library, either in whole or in part.

The Hearings of the Marihuana Tax Act and related documents.

Marihuana, A Signal of Misunderstanding, by the National Commission on Marihuana and Drug Abuse.

The Pure Food and Drugs Act of 1906 - text of the Act

The Situation in 1900
The Pure Food and Drugs Act of 1906
The Harrison Act
The Early State Marijuana Laws
The Marihuana Tax Act of 1937
1938 to 1951
Where did marijuana get its awful reputation?
1956 and the Daniel Act
1969 Dangerous Substances Act
Conclusion - The Issue of Prohibition
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Where did marijuana get its awful reputation?

The final story from this period is my favorite story from this period, by far, and, again, there is simply nobody here who is really old enough to appreciate this story. You know, if you talk to your parents -- that's the generation we really need to talk to -- people who were adults during the late 30's and 40's. And you talk to them about marijuana in particular you would be amazed at the amazing reputation that marijuana has among the generation ahead of you as to what it does to its users.

In the late 30's and early 40's marihuana was routinely referred to as "the killer drug", "the assassin of youth". You all know "reefer madness", right? Where did these extraordinary stories that circulated in this country about what marijuana would do to its users come from?

The conventional wisdom is that Anslinger put them over on Americans in his effort to compete with Hoover for empire-building, etc. I have to say, in some fairness, that one of the things that our research did, in some sense, was to rehabilitate Commissioner Anslinger. Yes, there was some of that but, basically, it wasn't just that Anslinger was trying to dupe people.

The terrific reputation that marijuana got in the late 30s and early 40s stemmed from something Anslinger had said. Does everybody remember what Anslinger said about the drug? "Marihuana is an addictive drug which produces in its users insanity, criminality, and death."

Well, this time the magic word -- come along lawyers out there, where's the magic word? -- Insanity. Marihuana use, said the Government, would produce insanity.

And, sure enough, in the late 30s and early 40s, in five really flamboyant murder trials, the defendant's sole defense was that he -- or, in the most famous of them, she -- was not guilty by reason of insanity for having used marijuana prior to the commission of the crime.

All right, it's time to take you guys back to class here. If you are going to put on an insanity defense, what do you need? You need two things, don't you? Number one, you need an Expert Witness.

Where, oh where, in this story, are we going to find an expert witness? Here it comes -- sure enough -- the guy from Temple University -- the guy with the dogs. I promise you, you are not going to believe this.

In the most famous of these trials, what happened was two women jumped on a Newark, New Jersey bus and shot and killed and robbed the bus driver. They put on the marijuana insanity defense. The defense called the pharmacologist, and of course, you know how to do this now, you put the expert on, you say "Doctor, did you do all of this experimentation and so on?" You qualify your expert. "Did you write all about it?" "Yes, and I did the dogs" and now he is an expert. Now you ask him what? You ask the doctor "What have you done with the drug?" And he said, and I quote, "I've experimented with the dogs, I have written something about it and" -- are you ready -- "I have used the drug myself."

What do you ask him next? "Doctor, when you used the drug, what happened?"

With all the press present at this flamboyant murder trial in Newark New Jersey, in 1938, the pharmacologist said, and I quote, in response to the question "When you used the drug, what happened?", his exact response was: "After two puffs on a marijuana cigarette, I was turned into a bat."

He wasn't done yet. He testified that he flew around the room for fifteen minutes and then found himself at the bottom of a two-hundred-foot high ink well

Well, friends, that sells a lot of papers. What do you think the Newark Star Ledger headlines the next day, October 12, 1938? "Killer Drug Turns Doctor to Bat!"

What else do we need to put on an insanity defense? We need the defendant's testimony -- himself or herself. OK, you put defendant on the stand, what do you ask? "What happened on the night of . ."

"Oh, I used marijuana."

"And then what happened?"

And, if the defendant wants to get off, what is he or she going to say? "It made me crazy."

You know what the women testified? In Newark they testified, and I quote, "After two puffs on a marijuana cigarette my incisor teeth grew six inches long and dripped with blood."

This was the craziest business you ever saw. Every one of these so-called marijuana insanity defenses were successful.

The one in New York was just outlandish. Two police officers were shot and killed in cold blood. The defendant puts on the marijuana insanity defense and, in that case, there was never even any testimony that the defendant had even used marijuana. The testimony in the New York case was that, from the time the bag of marijuana came into his room it gave off "homicidal vibrations", so he started killing dogs, cats, and ultimately two police officers.

Commissioner Anslinger, sitting in Washington, seeing these marijuana insanity defenses, one after another successful, he writes to the pharmacologist from Temple University and says, "If you don't stop testifying for the defense in these matters, we are going to revoke your status as the Official Expert of the Federal Bureau of Narcotics." He didn't want to lose his status, so he stopped testifying, nobody else would testify that marijuana had turned them into a bat, and so these insanity defenses were over but not before marijuana had gotten quite a reputation, indeed.

The next step -- and now we are going to move very quickly here -- in 1951. We get a whole new drug law called the Boggs Act and it is important to us for only two reasons.

Number one, it reflects what I am going to call the formula for drug legislation in this country. Here is the formula. The formula really is always the same, think about it in our lifetime.

The formula is that someone, and by the way, that someone is usually the media, perceive an increase in drug use. What's the answer? The answer in the history of this country is always the same -- a new criminal law with harsher penalties in every single offense category.

Where did the perception come from this time? Well, if you have ever seen movies from this time period like High School Confidential, the perception was that kids in high school were starting to use drugs. What's the answer? The answer is always the same. The Boggs Act of 1951 quadrupled the penalties in every single offense category and, by the way, the Boggs Act had a whole new rationale for the marijuana prohibition.

Do you remember the old rationale -- that marijuana was an addictive drug which caused in its users insanity, criminality, and death? Just before Anslinger was to testify on the Boggs Act, the doctor who ran for the Government the Lexington, Kentucky narcotics rehabilitation clinic testified ahead of Anslinger and testified that the medical community knew that marijuana wasn't an addictive drug,. It doesn't produce death, or insanity, and instead of producing criminality, it probably produces passivity, said the doctor.

Who was the next witness? Anslinger. And, if you see, that the rug had been pulled out from under everything he had said in the 1937 hearings to support the marijuana prohibition. In what I call a really slick Federal shuffle -- Anslinger, you know, had been bitten bad enough by what he said, he didn't want that again -- he said, the doctor is right, marijuana -- he always believed, by the way, that there was something in marijuana which produced criminality -- is not an addictive drug, it doesn't produce insanity or death but it is "the certain first step on the road to heroin addiction." And the notion that marijuana was the stepping stone to heroin became, in 1951, the sole rationale for the national marijuana prohibition. It was the first time that marijuana was lumped with all the other drugs and not treated separately, and we multiply the penalties in every offense category.

By the way, I told you that the history of drug legislation reflects the history of the country. 1951, what's going on? The Korean War, the Cold War. It didn't take the press a minute to see this perceived use in drug use among high school kids as our "foreign enemies", using drugs to subvert the American young. In our book, we have ten or fifteen great political cartoons. My favorite is a guy with a big Fu Man Chu (mustache) labeled "Oriental Communism." He has a big needle marked "Dope" and he has the American kids lying down -- "Free World" it is marked. There it was -- that our foreign enemies were going to use drugs to subvert the American young. What did we do? We passed a new law that increased the penalties in every offense category by a factor of four.

Well, now once you buy it, the ball is going to roll like crazy.

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