The prohibition of drugs must end!

In 1937, with the passage of the Marihuana Tax Act, the United States effectively banned recreational and medicinal use of cannabis.(1) Many nations followed suit and, in 1961, through the United Nations Single Convention on Narcotic Drugs, fifty four nations agreed to "[a]dopt such measures as may be necessary to prevent the misuse of, and illicit traffic in the leaves of the cannabis plant."(2) Despite such restrictive control, cannabis has become the most widely used illicit drug in the western world.

Since the 1970's pressure has been building to move away from the total prohibition of cannabis. Over the past century, numerous reports from independent, government-sponsored commissions have documented the drug's relative harmlessness and recommended the elimination of criminal sanctions for consumption-related offenses.(3) Opinion polls show growing support for cannabis reform and scientific, medical and patient communities continually provide evidence of the drug's therapeutic potential. As the public demands legal access to cannabis for both medicinal and other responsible uses, policy makers are being forced to consider how to regulate the drug.

Holland has led the way in cannabis reform since it amended its Opium Act in 1976 to distinguish among drugs according to levels of risk. Identifying cannabis as a "soft drug," the Dutch government decided to treat possession and cultivation of up to 30 grams as activities "not for prosecution, detection or arrest." This policy of tolerance paved the way for the "coffee shop system" of publicly distributing both marijuana and hashish. More recently, in 1996 the voters of California passed Proposition 215, the Compassionate Use Act, so that sick and dying patients could legally use marijuana for medicinal purposes. Cannabis buyer's clubs, not unlike the Dutch hash coffee shops, have emerged to provide marijuana to those with legitimate medical need.

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

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.

------------------------------------------------------------------------

Introduction

This session is going to be about the history of the non-medical use of
drugs. Let me say that, because this is going to be a story, that I think it
will interest you quite a bit. The topic is the history of the non-medical
use of drugs and I think you ought to know what my credentials are for
talking about this topic. As you may know, before I taught at the University
of Southern California, I taught at the University of Virginia for fifteen
years, from 1968 to 1981. In that time period, the very first major piece
that I wrote was a piece entitled, "The Forbidden Fruit and the Tree of
Knowledge - The Legal History of Marihuana in the United States". I wrote it
with Professor Richard Bonnie, still of the faculty of the University of
Virginia. It was published in the Virginia Law Review in October of 1970 and
I must say that our piece was the Virginia Law Review in October of 1970.
The piece was 450 pages long. It got a ton of national attention because no
one had ever done the legal history of marijuana before. As a result of
that, Professor Bonnie was named the Deputy Director of the National
Commission on Marihuana and Drug Abuse and I was a consultant to that
commission.

As a result of Richard's two year executive directorship of the National
Commission in 1971 and 1972 he and I were given access to both the open and
the closed files of what was then called the Bureau of Narcotics and
Dangerous Drugs, what had historically been called the Federal Bureau of
Narcotics and what today is called the Drug Enforcement Agency. Based upon
our access to those files, both open and closed, we wrote a book called "The
Marihuana Conviction- The Legal History of Drugs in the United States" and
that book went through six printings at the University of Virginia press
before being sold out primarily in sales to my friends at the FBI over the
years. It is based upon that work that I bring you this story.

------------------------------------------------------------------------

The Situation in 1900

If you are interested in the non-medical use of drugs in this country, the
time to go back to is 1900, and in some ways the most important thing I am
going to say to you guys I will say first. That is, that in 1900 there were
far more people addicted to drugs in this country than there are today.
Depending upon whose judgment, or whose assessment, you accept there were
between two and five percent of the entire adult population of the United
States addicted to drugs in 1900.

Now, there were two principal causes of this dramatic level of drug
addiction at the turn of the century. The first cause was the use of
morphine and its various derivatives in legitimate medical operations. You
know as late as 1900, particularly in areas where medical resources were
scarce it was not at all uncommon for you to say, let's say you would have
appendicitis, you would go into the hospital, and you would get morphine as
a pain killer during the operation, you would be given morphine further
after the operation and you would come out of the hospital with no appendix
but addicted to morphine.

The use of morphine in battlefield operations during the Civil War was so
extensive that, by 1880, so many Union veterans were addicted to morphine
that the popular press referred to morphinism as the "soldier's disease".
Now I will say, being from Virginia as I am, that the Confederate veterans
didn't have any problems about being addicted to morphine because the South
was too poor to have any, and therefore battlefield operations on the
Confederate Army were simply done by chopping off the relevant limb while
they drank a little whiskey. But the Northern troops heavily found
themselves, as the result of battlefield operations and the use of morphine,
addicted to morphine.

Now, the other fact that I think that is so interesting about drug addiction
at the turn of the century, as opposed to today is who the addicts were,
because they were the exact opposite of who you would think most likely to
be an addict today. If I were to ask you in terms of statistical groups who
is most likely to be involved with drugs today, you would say a young
person, a male, who lives in the city and who may be a minority group
member. That is the exact opposite of who was most likely to be addicted to
drugs at the turn of the century.

In terms of statistical groups, who was most likely to be addicted to drugs
at the turn of the century? A rural living, middle-aged white woman. The use
of morphine in medical operations does not explain the much higher incidence
of drug addiction among women. What does is the second cause of the high
level of addiction at the turn of the century -- the growth and development
of what we now call the "patent medicine" industry.

I think some of you, maybe from watching Westerns on TV if nothing else are
aware that, again, as late as 1900, in areas, particularly rural areas where
medical resources were scarce, it was typical for itinerant salesmen, not
themselves doctors, to cruise around the countryside offering potions and
elixirs of all sorts advertised in the most flamboyant kinds of terms.
"Doctor Smith's Oil, Good for What Ails You", or "Doctor Smith's Oil, Good
for Man or Beast."

Well, what the purveyors of these medicines did not tell their purchasers,
was that later, when these patent medicines were tested, many of them proved
to be up to fifty percent morphine by volume.

Now, what that meant, as I have always thought, was the most significant
thing about the high morphine content in patent medicines was it meant they
tended to live up to their advertising. Because no matter what is wrong with
you, or your beast, you are going to feel a whole lot better after a couple
of slugs of an elixir that is fifty percent morphine. So there was this
tendency to think "Wow! This stuff works." Down you could go to the general
store and get more of it and it could be sold to you directly over the
counter.

Now, for reasons that we weren't able to full research, but for reasons, I
think, probably associated with the role of women rural societies then
patent medicines were much more appealing to women than to men and account
for the much higher incidence of drug addiction in 1900 among women than
among men.

If you want to see a relatively current portrayal of a woman addicted to
patent medicine you might think of Eugene O'Neil's play "A Long Day's
Journey Into Night". The mother figure there, the one that was played by
Katherine Hepburn in the movies was addicted to patent medicines.

In any event, the use of morphine in medical operations and the sale of
patent medicines accounted for a dramatic level of addiction. Again, between
two and five percent of the entire adult population of the United States was
addicted to drugs as late as 1900.

Now if my first point is that there was a lot more addiction in 1900 than
there is today and that the people who were addicted are quite a different
group than the group we would be thinking of today, my next point would be
that if you look at drug addiction in 1900, what's the number one way in
which it is different than drug addiction today? Answer: Almost all
addiction at the turn of the century was accidental.

People became involved with drugs they did not know that they were taking,
that they did not know the impact of. The first point, then, is that there
was more drug addiction than there is now and most of it was accidental.

------------------------------------------------------------------------

The Pure Food and Drug Act

Then the single law which has done the most in this country to reduce the
level of drug addiction is none of the criminal laws we have ever passed.
The single law that reduced drug addiction the most was the 1906 Pure Food
and Drug Act.

The Pure Food and Drug Act of 1906 did three things:

1). It created the Food and Drug Administration in Washington that must
approve all foods and drugs meant for human consumption. The very first
impact of that was that the patent medicines were not approved for human
consumption once they were tested.

2) The Pure Food and Drug Act said that certain drugs could only be sold on
prescription.

3) The Pure Food and Drug Act, (and you know, this is still true today, go
look in your medicine chest) requires that any drug that can be potentially
habit-forming say so on it's label. "Warning -- May be habit forming."

The labeling requirements, the prescription requirements, and the refusal to
approve the patent medicines basically put the patent medicine business out
of business and reduced that dramatic source of accidental addiction. The
Pure Food and Drug Act of 1906, not a criminal law, did more to reduce the
level of addiction than any other single statute we have passed in all of
the times from then to now.

------------------------------------------------------------------------

The Harrison Act

The very first criminal law at the Federal level in this country to
criminalize the non-medical use of drugs came in 1914. It was called the
Harrison Act and there are only three things about the Harrison Act that we
need to focus on today.

Number one is the date. Did you hear the date, 1914? Some of you may have
come this morning thinking that we have used the criminal law to deal with
the non-medical use of drugs since the beginning of the Republic or
something. That is not true. The entire experiment of using the criminal
sanction to deal with the non-medical use of drugs really began in this
country in 1914 with the Harrison Act.

The second interesting thing about the Harrison Act was the drugs to which
it applied, because it applied to almost none of the drugs we would be
concerned about today. The Harrison Act applied to opium, morphine and its
various derivatives, and the derivatives of the coca leaf like cocaine. No
mention anywhere there of amphetamines, barbiturates, marijuana, hashish,
hallucinogenic drugs of any kind. The Harrison Act applied only to opium,
morphine and its various derivatives and derivatives of the coca leaf like
cocaine.

The third and most interesting thing for you all as judges about the
Harrison Act was its structure, because the structure of this law was very
peculiar and became the model for every single piece of Federal legislation
from 1914 right straight through 1969. And what was that model?

It was called the Harrison Tax Act. You know, the drafters of the Harrison
Act said very clearly on the floor of Congress what it was they wanted to
achieve. They had two goals. They wanted to regulate the medical use of
these drugs and they wanted to criminalize the non-medical use of these
drugs. They had one problem. Look at the date -- 1914. 1914 was probably the
high water mark of the constitutional doctrine we today call "states'
rights" and, therefore, it was widely thought Congress did not have the
power, number one, to regulate a particular profession, and number two, that
Congress did not have the power to pass what was, and is still known, as a
general criminal law. That's why there were so few Federal Crimes until very
recently.

In the face of possible Constitutional opposition to what they wanted to do,
the people in Congress who supported the Harrison Act came up with a novel
idea. That is, they would masquerade this whole thing as though it were a
tax. To show you how it worked, can I use some hypothetical figures to show
you how this alleged tax worked?

There were two taxes. The first (and again, these figures aren't accurate
but they will do to show the idea) tax was paid by doctors. It was a dollar
a year and the doctors, in exchange for paying that one dollar tax, got a
stamp from the Government that allowed them to prescribe these drugs for
their patients so long as they followed the regulations in the statute. Do
you see that by the payment of that one dollar tax, we have the doctors
regulated? The doctors have to follow the regulations in the statute.

And there was a second tax. (and again, these are hypothetical figures but
they will show you how it worked.) was a tax of a thousand dollars of every
single non-medical exchange of every one of these drugs. Well, since nobody
was going to pay a thousand dollars in tax to exchange something which, in
1914, even in large quantities was worth about five dollars, the second tax
wasn't a tax either, it was a criminal prohibition. Now just to be sure you
guys understand this, and I am sure you do, but just to make sure, let's say
that in 1915 somebody was found, let's say, in possession of an ounce of
cocaine out here on the street. What would be the Federal crime? Not
possession of cocaine, or possession of a controlled substance. What was the
crime? Tax evasion.

And do you see what a wicked web that is going to be? As a quick preview,
where then are we going to put the law enforcement arm for the
criminalization of drugs for over forty years -- in what department? The
Treasury Department. Why, we are just out there collecting taxes and I will
show you how that works in a minute.

If you understand that taxing scheme then you understand why the national
marijuana prohibition of 1937 was called the Marihuana Tax Act.

------------------------------------------------------------------------

The Early State Marijuana Laws

But before we get to that next big piece of Federal legislation, the
marihuana prohibition of 1937, I would like to take a little detour, if I
may, into an analysis of the early state marijuana laws passed in this
country from 1915 to 1937.

Let me pause to tell you this. When Professor Bonnie and I set out to try to
track the legal history of marijuana in this country, we were shocked that
nobody had ever done that work before. And, secondly, the few people who had
even conjectured about it went back to the 1937 Federal Act and said "Well,
there's the beginning of it." No. If you go back to 1937, that fails to take
account of the fact that, in the period from 1915 to 1937, some 27 states
passed criminal laws against the use of marijuana. What Professor Bonnie and
I did was, unique to our work, to go back to the legislative records in
those states and back to the newspapers in the state capitols at the time
these laws were passed to try to find out what motivated these 27 states to
enact criminal laws against the use of marijuana. What we found was that the
27 states divided into three groups by explanation.

The first group of states to have marijuana laws in that part of the century
were Rocky Mountain and southwestern states. By that, I mean Texas, New
Mexico, Colorado, Montana. You didn't have to go anywhere but to the
legislative records to find out what had motivated those marijuana laws. The
only thing you need to know to understand the early marijuana laws in the
southwest and Rocky Mountain areas of this country is to know, that in the
period just after 1914, into all of those areas was a substantial migration
of Mexicans. They had come across the border in search of better economic
conditions, they worked heavily as rural laborers, beet field workers,
cotton pickers, things of that sort. And with them, they had brought
marijuana.

Basically, none of the white people in these states knew anything about
marijuana, and I make a distinction between white people and Mexicans to
reflect a distinction that any legislator in one of these states at the time
would have made. And all you had to do to find out what motivated the
marijuana laws in the Rocky mountain and southwestern states was to go to
the legislative records themselves. Probably the best single statement was
the statement of a proponent of Texas first marijuana law. He said on the
floor of the Texas Senate, and I quote, "All Mexicans are crazy, and this
stuff (referring to marijuana) is what makes them crazy." Or, as the
proponent of Montana's first marijuana law said, (and imagine this on the
floor of the state legislature) and I quote, "Give one of these Mexican beet
field workers a couple of puffs on a marijuana cigarette and he thinks he is
in the bullring at Barcelona."

Well, there it was, you didn't have to look another foot as you went from
state to state right on the floor of the state legislature. And so what was
the genesis for the early state marijuana laws in the Rocky Mountain and
southwestern areas of this country? It wasn't hostility to the drug, it was
hostility to the newly arrived Mexican community that used it.

A second group of states that had criminal laws against the use of marijuana
were in the Northeast, Connecticut, Rhode Island, New York -- had one and
then repealed it and then had one again -- New Jersey. Well, clearly no
hypothesis about Mexican immigration will explain the genesis of those laws
because, as you know, the Northeast has never had, still doesn't really, any
substantial Mexican-American population. So we had to dig a little deeper to
find the genesis of those laws. We had to go not only to the legislative
records but to the newspapers in the state capitols at the time these laws
were passed and what we found, in the early marijuana laws in the Northeast,
we labeled the "fear of substitution." If I may, let me paraphrase an
editorial from the New York Times in 1919 so we will get exactly the flavor
of this fear of substitution.

The New York Times in an editorial in 1919 said, "No one here in New York
uses this drug marijuana. We have only just heard about it from down in the
Southwest," and here comes the substitution. "But," said the New York Times,
"we had better prohibit its use before it gets here. Otherwise" -- here's
the substitution concept -- "all the heroin and hard narcotics addicts cut
off from their drug by the Harrison Act and all the alcohol drinkers cut off
from their drug by 1919 alcohol Prohibition will substitute this new and
unknown drug marijuana for the drugs they used to use."

Well, from state to state, on the theory that this newly encountered drug
marijuana would be substituted by the hard narcotics addicts or by the
alcohol drinkers for their previous drug that had been prohibited, state to
state this fear of substitution carried, and that accounted for 26 of the 27
states -- that is, either the anti-Mexican sentiment in the Southwest and
Rocky Mountain areas or fear of substitution in the Northeast. That
accounted for 26 of the 27 states, and there was only one state left over.
It was the most important state for us because it was the first state ever
to enact a criminal law against the use of marijuana and it was the state of
Utah.

Now, if you have been hearing this story and you have been playing along
with me, you think "Oh, wait a minute, Whitebread, Utah fits exactly with
Colorado, Montana, -- it must have been the Mexicans."

Well, that's what I thought at first. But we went and did a careful study of
the actual immigration pattern and found, to our surprise, that Utah didn't
have then, and doesn't have now, a really substantial Mexican-American
population. So it had to be something else.

Come on folks, if it had to be something else, what do you think it might
have been? Are you thinking what I was thinking -- that it must have had
something to do with the single thing which makes Utah unique in American
history -- its association with the Mormon church.

With help from some people in Salt Lake City, associated with the Mormon
Church and the Mormon National Tabernacle in Washington -- with their help
and a lot of work we found out what the genesis was of the first marihuana
law in this country. Yes, it was directly connected to the history of Utah
and Mormonism and it went like this.

I think that a lot of you know that, in its earliest days, the Mormon church
permitted its male members to have more than one wife -- polygamy. Do you
all know that in 1876, in a case called Reynolds against the United States,
the United States Supreme Court said that Mormons were free to believe what
they wanted, but they were not free to practice polygamy in this country.
Well, who do you think enforced that ruling of the Supreme Court in 1876? At
the end of the line, who enforces all rulings of the Supreme Court? Answer:
the state and local police. And who were they in Utah then? All Mormons, and
so nothing happened for many years. Those who wanted to live polygamously
continued to do so.

In 1910, the Mormon Church in synod in Salt Lake City decreed polygamy to be
a religious mistake and it was banned as a matter of the Mormon religion.
Once that happened, there was a crackdown on people who wanted to live in
what they called "the traditional way". So, just after 1910, a fairly large
number of Mormons left the state of Utah, and indeed left the United States
altogether and moved into northwest Mexico. They wrote a lot about what they
wanted to accomplish in Mexico. They wanted to set up communities where they
were basically going to convert the Indians, the Mexicans, and what they
referred to as "the heathen" in the neighborhood to Mormonism.

By 1914, they had had very little luck with the heathen, but our research
shows now beyond question that the heathen had a little luck with them. What
happened apparently -- now some of you who may be members of the church, you
know that there are still substantial Mormon communities in northwest Mexico
-- was that, by and large most of the Mormons were not happy there, the
religion had not done well there, they didn't feel comfortable there, they
wanted to go back to Utah where there friends were and after 1914 did.

And with them, the Indians had given them marijuana. Now once you get
somebody back in Utah with the marijuana it all becomes very easy, doesn't
it? You know that the Mormon Church has always been opposed to the use of
euphoriants of any kind. So, somebody saw them with the marijuana, and in
August of 1915 the Church, meeting again in synod in Salt Lake City decreed
the use of marijuana contrary to the Mormon religion and then -- and this is
how things were in Utah in those days -- in October of 1915, the state
legislature met and enacted every religious prohibition as a criminal law
and we had the first criminal law in this country's history against the use
of marijuana.

That digression into the early state marijuana laws aside, we will now get
back on the Federal track, the year is 1937 and we get the national
marijuana prohibition -- the Marihuana Tax Act

------------------------------------------------------------------------

The Marihuana Tax Act of 1937

Now, first again, does everybody see the date, 1937? You may have thought
that we have had a national marijuana prohibition for a very long time.
Frankly, we haven't.

The marijuana prohibition is part and parcel of that era which is now being
rejected rather generally -- the New Deal era in Washington in the late 30s.

Number two, you know, don't you, that whenever Congress is going to pass a
law, they hold hearings. And you have seen these hearings. The hearings can
be extremely voluminous, they go on and on, they have days and days of
hearings. Well, may I say, that the hearings on the national marijuana
prohibition were very brief indeed. The hearings on the national marijuana
prohibition lasted one hour, on each of two mornings and since the hearings
were so brief I can tell you almost exactly what was said to support the
national marijuana prohibition.

Now, in doing this one at the FBI Academy, I didn't tell them this story,
but I am going to tell you this story. You want to know how brief the
hearings were on the national marijuana prohibition?

When we asked at the Library of Congress for a copy of the hearings, to the
shock of the Library of Congress, none could be found. We went "What?" It
took them four months to finally honor our request because -- are you ready
for this? -- the hearings were so brief that the volume had slid down inside
the side shelf of the bookcase and was so thin it had slid right down to the
bottom inside the bookshelf. That's how brief they were. Are you ready for
this? They had to break the bookshelf open because it had slid down inside.

There were three bodies of testimony at the hearings on the national
marijuana prohibition.

The first testimony came from Commissioner Harry Anslinger, the newly named
Commissioner of the Federal Bureau of Narcotics. Now, I think some of you
know that in the late 20s and early 30s in this country there were two
Federal police agencies created, the FBI and the FBN -- the Federal Bureau
of Investigation, and the Federal Bureau of Narcotics.

In our book, I talk at great length about how different the history of these
two organizations really are. But, the two organizations, the FBI and the
FBN had some surface similarities and one of them was that a single
individual headed each of them for a very long time. In the case of the FBI,
it was J. Edgar Hoover, and in the case of the FBN it was Harry Anslinger,
who was the Commissioner of the Federal Bureau of Narcotics from 1930 until
1962.

Commissioner Anslinger gave the Government testimony and I will quote him
directly. By the way, he was not working from a text that he had written. He
was working from a text that had been written for him by a District Attorney
in New Orleans, a guy named Stanley. Reading directly from Mr. Stanley's
work, Commissioner Anslinger told the Congressmen at the hearings, and I
quote, "Marihuana is an addictive drug which produces in its users insanity,
criminality, and death." That was the Government testimony to support the
marijuana prohibition from the Commissioner.

The next body of testimony -- remember all of this took a total of two hours
-- uh .. You understand what the idea was, don't you? The idea was to
prohibit the cultivation of hemp in America. You all know, because there has
been some initiative here in California, that hemp has other uses than its
euphoriant use. For one, hemp has always been used to make rope. Number two,
the resins of the hemp plant are used as bases for paints and varnishes.
And, finally, the seeds of the hemp plant are widely used in bird seed.
Since these industries were going to be affected the next body of testimony
came from the industrial spokesmen who represented these industries.

The first person was the rope guy. The rope guy told a fascinating story --
it really is fascinating -- the growth of a hemp to make rope was a
principle cash crop right where I am from, Northern Virginia and Southern
Maryland at the time of the Revolutionary War. But, said the rope guy, by
about 1820 it got cheaper to import the hemp we needed to make rope from the
Far East and so now in 1937 we don't grow any more hemp to make rope in this
country -- it isn't needed anymore.

If you heard that story, there are two things about it that I found
fascinating. Number one, it explains the long-standing rumor that our
forefathers had something to do with marijuana. Yes, they did -- they grew
it. Hemp was the principal crop at Mount Vernon. It was a secondary crop at
Monticello. Now, of course, in our research we did not find any evidence
that any of our forefathers had used the hemp plant for euphoriant purposes,
but they did grow it.

The second part of that story that, to me is even more interesting is -- did
you see the date again - 1937? What did the rope guy say? We can get all the
hemp we need to make rope from the Far East, we don't grow it hear anymore
because we don't need to.

Five years later, 1942, we are cut off from our sources of hemp in the Far
East. We need a lot of hemp to outfit our ships for World War II, rope for
the ships, and therefore, the Federal Government, as some of you know, went
into the business of growing hemp on gigantic farms throughout the Midwest
and the South to make rope to outfit the ships for World War II.

So, even to this day, if you are from the Midwest you will always meet the
people who say, "Gosh, hemp grows all along the railroad tracks." Well, it
does. Why? Because these huge farms existed all during World War II.

But, the rope people didn't care. The paint and varnish people said "We can
use something else." And, of the industrial spokesmen, only the birdseed
people balked. The birdseed people were the ones who balked and the birdseed
person was asked, "Couldn't you use some other seed?"

These are all, by the way, direct quotes from the hearings. The answer the
birdseed guy gave was, "No, Congressman, we couldn't. We have never found
another seed that makes a birds coat so lustrous or makes them sing so
much."

So, on the ground that the birdseed people needed it -- did you know that
the birdseed people both got and kept an exemption from the Marihuana Tax
Act right through this very day for so-called "denatured seeds"?

In any event, there was Anslinger's testimony, there was the industrial
testimony -- there was only one body of testimony left at these brief
hearings and it was medical. There were two pieces of medical evidence
introduced with regard to the marijuana prohibition.

The first came from a pharmacologist at Temple University who claimed that
he had injected the active ingredient in marihuana into the brains of 300
dogs, and two of those dogs had died. When asked by the Congressmen, and I
quote, "Doctor, did you choose dogs for the similarity of their reactions to
that of humans?" The answer of the pharmacologist was, "I wouldn't know, I
am not a dog psychologist."

Well, the active ingredient in marijuana was first synthesized in a
laboratory in Holland after World War II. So what it was this pharmacologist
injected into these dogs we will never know, but it almost certainly was not
the active ingredient in marijuana.

The other piece of medical testimony came from a man named Dr. William C.
Woodward. Dr. Woodward was both a lawyer and a doctor and he was Chief
Counsel to the American Medical Association. Dr. Woodward came to testify at
the behest of the American Medical Association saying, and I quote, "The
American Medical Association knows of no evidence that marihuana is a
dangerous drug."

What's amazing is not whether that's true or not. What's amazing is what the
Congressmen then said to him. Immediately upon his saying, and I quote
again, "The American Medical Association knows of no evidence that marihuana
is a dangerous drug.", one of the Congressmen said, "Doctor, if you can't
say something good about what we are trying to do, why don't you go home?"

That's an exact quote. The next Congressman said, "Doctor, if you haven't
got something better to say than that, we are sick of hearing you."

Now, the interesting question for us is not about the medical evidence. The
most fascinating question is: why was this legal counsel to the most
prestigious group of doctors in the United States treated in such a
high-handed way? And the answer makes a principle thesis of my work -- and
that is -- you've seen it, you've been living it the last ten years. The
history of drugs in this country perfectly mirrors the history of this
country.

So look at the date -- 1937 -- what's going on in this country? Well, a lot
of things, but the number one thing was that, in 1936, President Franklin
Roosevelt was reelected in the largest landslide election in this country's
history till then. He brought with him two Democrats for every Republican,
all, or almost all of them pledged to that package of economic and social
reform legislation we today call the New Deal.

And, did you know that the American Medical Association, from 1932, straight
through 1937, had systematically opposed every single piece of New Deal
legislation. So that, by 1937, this committee, heavily made up of New Deal
Democrats is simply sick of hearing them: "Doctor, if you can't say
something good about what we are trying to do, why don't you go home?"

So, over the objection of the American Medical Association, the bill passed
out of committee and on to the floor of Congress. Now, some of you may think
that the debate on the floor of Congress was more extensive on the marijuana
prohibition. It wasn't. It lasted one minute and thirty-two seconds by my
count and, as such, I will give it to you verbatim.

The entire debate on the national marijuana prohibition was as follows --
and, by the way, if you had grown up in Washington, DC as I had you would
appreciate this date. Are you ready? The bill was brought on to the floor of
the House of Representatives -- there never was any Senate debate on it not
one word -- 5:45 Friday afternoon, August 20. Now, in pre-air-conditioning
Washington, who was on the floor of the House? Who was on the floor of the
House? Not very many people.

Speaker Sam Rayburn called for the bill to be passed on "tellers". Does
everyone know "tellers"? Did you know that for the vast bulk of legislation
in this country, there is not a recorded vote. It is simply, more people
walk past this point than walk past that point and it passes -- it's called
"tellers". They were getting ready to pass this thing on tellers without
discussion and without a recorded vote when one of the few Republicans left
in Congress, a guy from upstate New York, stood up and asked two questions,
which constituted the entire debate on the national marijuana prohibition.

"Mr. Speaker, what is this bill about?"

To which Speaker Rayburn replied, "I don't know. It has something to do with
a thing called marihuana. I think it's a narcotic of some kind."

Undaunted, the guy from Upstate New York asked a second question, which was
as important to the Republicans as it was unimportant to the Democrats. "Mr.
Speaker, does the American Medical Association support this bill?"

In one of the most remarkable things I have ever found in any research, a
guy who was on the committee, and who later went on to become a Supreme
Court Justice, stood up and -- do you remember? The AMA guy was named
William C. Woodward -- a member of the committee who had supported the bill
leaped to his feet and he said, "Their Doctor Wentworth came down here. They
support this bill 100 percent." It wasn't true, but it was good enough for
the Republicans. They sat down and the bill passed on tellers, without a
recorded vote.

In the Senate there never was any debate or a recorded vote, and the bill
went to President Roosevelt's desk and he signed it and we had the national
marijuana prohibition.

------------------------------------------------------------------------

1938 to 1951

Now, the next step in our story is the period from 1938 to 1951. I have
three stories to tell you about 1938 to 1951.

The first of them. Immediately after the passage of the national marijuana
prohibition, Commissioner Anslinger decided to hold a conference of all the
people who knew something about marijuana -- a big national conference. He
invited forty-two people to this conference. As part our research for the
book, we found the exact transcript of this conference. Ready?

The first morning of the conference of the forty-two people that
Commissioner Anslinger invited to talk about marijuana, 39 of them got up
and said some version of "Gee, Commissioner Anslinger, I don't know why you
asked me to this conference, I don't know anything about marijuana."

That left three people. Dr. Woodward and his assistant -- you know what they
thought.

That left one person -- the pharmacologist from Temple University -- the guy
with the dogs.

And what do you think happened as a result of that conference? Commissioner
Anslinger named the pharmacologist from Temple University the Official
Expert of the Federal Bureau of Narcotics about marijuana, a position the
guy held until 1962. Now, the irony of trying to find out what the drug did
after it had been prohibited -- finding out that only one person agrees with
you -- and naming him the Official Expert, speaks for itself.

The next story from this time period was a particular favorite of the police
groups to whom I spoke at the FBI Academy, because it is a law enforcement
story.

After national marijuana prohibition was passed, Commissioner Anslinger
found out, or got reports, that certain people were violating the national
marijuana prohibition and using marijuana and, unfortunately for them, they
fell into an identifiable occupational group. Who were flouting the
marijuana prohibition? Jazz musicians. And so, in 1947, Commissioner
Anslinger sent out a letter, I quote it verbatim, "Dear Agent So-and-so,
Please prepare all cases in your jurisdiction involving musicians in
violation of the marijuana laws. We will have a great national round-up
arrest of all such persons on a single day. I will let you know what day."

That letter went out on, I think, October 24, 1947. The responses by the
resident agents were all in the file. My favorite -- at the bottom line,
there wasn't a single resident agent who didn't have reservations about this
idea -- came from the Hollywood agent. This is the exact letter of the FBN
agent in charge in Hollywood.

"Dear Commissioner Anslinger,

I have your letter of October 24. Please be advised that the musical
community here in Hollywood are unionized and very tight we have been unable
to get an informant inside it. So, at the present time, we have no cases
involving musicians in violation of the marihuana laws."

For the next year and a half, Commissioner Anslinger got those kinds of
letters. He never acknowledged any of the problems that the agents said they
were having with this idea and always wrote them back the same letter.

"Dear Agent so-and-so,

Glad to hear you are working hard to give effect to my directive of October
24, 1947. We will (and he always underlined the word 'will') have a great
national round-up arrest of musicians in violation of the marijuana laws all
on a single day. Don't worry, I will let you know what day."

This went on -- and, of course, you know that some jazz musicians were, in
fact, arrested in the late 40's -- this all went on until it ended just the
way it began -- with something that Anslinger said. I don't see anybody in
here really old enough to appreciate this point, but Commissioner Anslinger
was testifying before a Senate Committee in 1948. He was saying, "I need
more agents." And, of course, the Senators asked him why.

"Because there are people out there violating the marijuana laws."

Well, you know what the Senators asked -- "Who?"

And in a moment that every Government employee should avoid like the plague,
Anslinger first said, "Musicians." But then he looked up at that Senate
committee and he gave them a little piece of his heart and said the single
line which provoked the most response in this country's history about the
non-medical use of drugs. Anslinger said, "And I don't mean good musicians,
I mean jazz musicians."

Friends, there is no way to tell you what a torrent ensued. Within 24 hours,
76 newspaper editorials slammed him, including special editions the then
booming trade press of the jazz music industry. With three days, the
Department of the Treasury had received fifteen thousand letters. bunches of
them were still in bags when I got there -- never been opened at all. I
opened a few. Here was a typical one, and it was darling.

"Dear Commissioner Anslinger,

I applaud your efforts to rid America of the scourge of narcotics addiction.
If you are as ill-informed about that as you are about music, however, you
will never succeed."

One of the things that we had access to that really was fun was the
Commissioner's own appointment book for all of his years. And, five days
after he says "I don't mean good musicians, I mean jazz musicians." there is
a notation: 10 AM -- appointment with the Secretary of the Treasury." Well,
I don't know what happened at that appointment, but from that appointment
on, no mention is ever made again of the great national round-up arrest of
musicians in violation of the marijuana laws all on a single day, much to
the delight of the agents who never had any heart for it in the first place.

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.

------------------------------------------------------------------------

1956 and the Daniel Act

1956, we get another new drug law, called the Daniel Act, named for Senator
Price Daniel of Texas. It is important to us for only two reasons. One, it
perfectly reflects the formula again. What is the formula? Somebody
perceives an increase in drug use in this country and the answer is always a
new criminal law with harsher penalties in every offense category.

Where did the perception in 1956 come from that there was an increase in
drug use? Answer: Anybody remember 1956? In 1956, we had the first set ever
of televised Senate hearings. And whose hearings were they? They were the
hearings of Senator Estes Kefauver of Tennessee about organized crime in
America.

These hearings, which everybody watched on their little sets showed two
things that we all know today, but it sure made their socks roll up and down
then. Number one, there is organized crime in America and number two, it
makes all its money selling drugs. There it was, that was all the perception
we needed. We passed the Daniel Act which increased the penalties in every
offense category, that had just been increased times four -- times eight.

With the passage of each of these acts, the states passed little Boggs acts,
and little Daniel acts, so that in the period 1958 to 1969, in the
Commonwealth of Virginia, and Virginia was typical, the most heavily
penalized crime in the Commonwealth was possession of marijuana, or any
other drug.

It led to a mandatory minimum sentence of twenty years, no part of which you
were eligible for parole or probation, and as to no part of it were you
eligible for a suspended sentence.

Just to show you where it was, in the same time period first degree murder
in Virginia had a mandatory minimum sentence of fifteen years. Rape, a
mandatory minimum sentence of ten years. Possession of marijuana -- not to
mention sales of marijuana with its mandatory minimum of forty years --
mandatory minimum of twenty years.

That is the situation in 1969 when we have a new drug law, the first one in
this country's history that does not follow the formula. It is the 1969
Dangerous Substances Act. For he first time in this country's history, we
have a perception of an increase in drug use during the Sixties, but instead
of raising the penalties, we lower them. And, further, in the Dangerous
Substances Act of 1969, for the first time we finally abandon the so-called
"taxing" mythology.

In the 1969 Act, what the Federal law does is, it takes all the drugs we
know -- if you can't fill in this next blank, you are in trouble -- except
two -- which two? Which two are never going to be mentioned? Nicotine and
alcohol. But, other than nicotine and alcohol -- every other drug.

By the way, I tried this with the FBI for twenty years and they wouldn't
listen, and you won't listen either but, I am going to try. If you are going
to go out and talk about drugs and whatever you are going to do with drugs,
will you please discard the entirely antiquated and erroneous word
"narcotics." Narcotics are drugs that put people to sleep. Almost all of the
drugs that we are interested in today don't do that.

So, in 1969, the Dangerous Substances Act gave up the effort to define what
are narcotic drugs. What the 1969 act did, and what most state laws still
do, is to classify all drugs except nicotine and alcohol by two criteria.
What is the drug's medical use? And, what is the drug's potential for abuse?

We put all the drugs, by those two criteria, in schedules, and then we tie
the penalties for possession, possession with intent to sell, sale, and sale
to a minor to the schedule of the drug in question. Now, again, I am no good
at this anymore, I have not kept up with the drug laws, I don't know who is
in what schedule, and many states have abandoned the schedule but, to give
you a flavor of it: The first schedule, Schedule One Drugs were drugs that
had little or no medical use and a high potential for abuse. What's going to
go in there? LSD, marijuana, hashish, they are all in Schedule One -- little
or no medical use and a high potential for abuse.

Then you get some medical use, high potential for abuse -- what do you want
there? Barbiturates, amphetamines,.

Then we are going to get what? High medical use and high potential for
abuse. Morphine, codeine. Codeine is the best one because codeine is in
almost every single prescription cough medicine and it is addictive as can
be.

Then you go on down and get the antibiotics -- high medical use, almost no
potential for abuse, and there you are.

Once you schedule your drugs, you then tie the penalties for the drugs to
the schedule and then, because in 1969 they wanted to reduce the marijuana
penalties they had to deal with marijuana separately and did so.

But the 1969 act important for two reasons again: One, we abandoned the
taxing mythology and; two, it was the first law in this country's history
that, instead of raising the penalties in every offense category, lowered
them.

Well, then you know what happened. We get the War on Drugs. You know how it
all went down. We got perceptions in the 80s that there was an increase in
drug use, a great dramatic decision to declare war on drugs and,
predominantly, war on drug users.

What I want to say to you is this, and this is where I think some of you are
going to be a little surprised. You know as much about that process as I do.
You watched it. You saw how we had one law after another, raising the
penalties so that as late as 1990, thirty percent of the minority group
population of the City of Baltimore who are male and between 20 and 29 are
under court supervision for drugs. Thirty percent, that's the number you are
looking for.

The War on Drugs, a very interesting war, because why? It was cheap to
fight. It was cheap to fight at first -- why? You heard me in the "Recent
Decisions" talk. What was last year's big moment, and the year before? The
change in cheap and easy forfeiture. Criminal forfeiture was used to make
this a costless war. That is, easy forfeiture from those who were caught
allowed us to pay for the war in that way. I think we are going to have some
real questions about whether people want to pay for the war on drugs through
their taxes because now the Court has made forfeiture much, much more
difficult in their overall concern for property rights.

But here is what I think may surprise some of you. You guys know as much
about the War on Drugs as I do. I didn't come hear to talk, or to harangue,
or to give you any opinions on that point. I think it speaks for itself. It
is a failure and I think it will be judged as a failure. What I wanted to
bring you instead was, instead of talking about that that everybody is
talking about -- and you guys will ultimately resolve it and you guys are
the ones who are seeing all the drug cases, day in and day out, and always
will, until this changes. But, what I thought I could bring you was the part
of the story you hadn't heard -- how we got to where we were when the War on
Drugs was declared.

------------------------------------------------------------------------

Conclusion - The Issue of Prohibition

And one other thing I want to do with you this morning, and that's this -- I
want to say one thing. To tell you the real truth, my interest isn't in
drugs, or in the criminalization of drugs although I think we should abolish
the criminal penalties for drugs, and deal with it as the Europeans do in a
medical way, but who cares? That's an opinion.

What interests me though, isn't drugs. What interests me is that larger
issue, and the reason that I wrote the piece, and the reason they were my
tenure pieces, I am interested in a much larger issue, and that is the idea
of Prohibition -- the use of criminal law to criminalize conduct that a
large number of us seem to want to engage in.

And, for my purposes, -- now, Professor Bonnie went on to be associated with
NIDA and with all kinds of drug-related organizations and continues to be
interested in the drug laws -- I am not. My interest is in criminal
prohibitions and, for my purposes, as a criminal law scholar, we could have
used any prohibition -- alcohol prohibition, the prohibition against
gambling that exists still in many states. How about the prohibition in
England from 1840 to 1880 against the drinking of gin? Not drinking, just
gin -- got it? We could have used any of these prohibitions. We didn't. We
chose the marijuana prohibition because the story had never been told -- and
it is an amazing story.

We could have used any of these prohibitions. We could have used the alcohol
prohibition. The reason we didn't is because so much good stuff has been
written about it. And are you aware of this? That every single -- you know
how fashionable it is to think that scholars can never agree? -- Don't you
believe that -- Every single person who has ever written seriously about the
national alcohol prohibition agrees on why it collapsed. Why?

Because it violated that iron law of Prohibitions. What is the iron law of
Prohibitions? Prohibitions are always enacted by US, to govern the conduct
of THEM. Do you have me? Take the alcohol prohibition. Every single person
who has ever written about it agrees on why it collapsed.

Large numbers of people supported the idea of prohibition who were not
themselves, opposed to drinking. Do you have me? What? The right answer to
that one is Huh? Want to hear it again?

Large numbers of people supported the idea of prohibition who were not
themselves, opposed to drinking. Want to see it?

Let me give you an example, 1919. You are a Republican in upstate New York.
Whether you drink, or you don't, you are for the alcohol prohibition because
it will close the licensed saloons in the City of New York which you view to
be the corrupt patronage and power base of the Democratic Party in New York.
So almost every Republican in New York was in favor of national alcohol
prohibition. And, as soon as it passed, what do you think they said? "Well,
what do you know? Success. Let's have a drink." That's what they thought,
"let's have a drink." "Let's drink to this." A great success, you see.

Do you understand me? Huge numbers of people in this country were in favor
of national alcohol prohibition who were not themselves opposed to drinking.

I just want to go back to the prohibition against the drinking of gin. How
could a country prohibit just the drinking of gin, not the drinking of
anything else for forty years? Answer: The rich people drank whiskey and the
poor people drank what? -- gin. Do you see it?

Let's try the gambling prohibition. You know when I came to Virginia, this
was a very lively issue, the gambling prohibition. By the way, I think it's
a lively issue in California. Are you ready for it?

Have you ever seen the rhetoric that goes around the gambling prohibition?
You know what it is. Look, we have had a good time. We have been together
yesterday, we have been together today, I have known a lot of you guys for
ages. How about after the talk, we have a minute or two, let's go on up to
your room and we will play a little nickel, dime, quarter poker. Want to
play some poker this afternoon? Why not? It's a nice thing to do.

Would we be outraged if the California State Police came barreling through
the door and arrested us for violation of California's prohibition on
gambling? Of course we would. Because, who is not supposed to gamble? Oh,
you know who is not supposed to gamble -- them poor people, that's who. My
God, they will spend the milk money. They don't know how to control it. They
can't handle it. But us? We know what we are doing.

That's it. Every criminal prohibition has that same touch to it, doesn't it?
It is enacted by US and it always regulates the conduct of THEM. And so, if
you understand that is the name of the game, you don't have to ask me, or
any of the other people which prohibitions will be abolished and which ones
won't because you will always know. The iron law of prohibitions -- all of
them -- is that they are passed by an identifiable US to control the conduct
of an identifiable THEM.

And a prohibition is absolutely done for when it does what? Comes back and
bothers US. If, at any time, in any way, that prohibition comes back and
bothers us, we will get rid of it for sure, every doggone time. Look at the
alcohol prohibition if you want a quick example. As long as it is only THEM
--- you know, them criminals, them crazy people, them young people, them
minority group members --- we are fine. But any prohibition that comes back
and bothers US is done for.

Let's just try the marijuana prohibition as a quick one. Who do you think
was arrested 650,000 strong two years ago for violation of the marijuana
laws? Do you think it was all minority group members? Nope. It was not. It
was some very identifiable children of US -- children of the middle class.
You don't have to answer my opinion. No prohibition will stand -- ever--
when it comes back and penalizes our children -- the children of US who
enacted it. And in fact, do you have any real doubt about that? Do you know
what a fabulous sociological study we will be if we become the first society
in the history of the world to penalize the sons and daughters of the
wealthy class? Unheard of.

And so, yeah, we will continue the War on Drugs for a while until everybody
sees its patent bankruptcy. But, let me say that I am not confident that
good sense will prevail. Why? Because we love this idea of prohibition. We
really do. We love it in this country. And so I will tell you what I
predict. You will always know which ones are going out and which ones are
coming in. And, can't you see the one coming right over the hill? Well,
folks, we are going to have a new prohibition because we love this idea that
we can solve difficult medical, economic, and social problems by the simple
enactment of a criminal law. We adore this, and of course, you judges work
it out, we have solved our problem. Do you have it? Our problem is over with
the enactment of the law. You and the cops work it out, but we have solved
our problem.

Here comes the new one? What's it going to be? No, it won't be guns, this
one starts easy. This one is the Surgeon General has what? --Determined --
not "we want a little more checking it out", not "we need a few more
studies", not "reasonable people disagree" -- "The Surgeon General has
determined that the smoking of cigarettes will kill you."

Now, all you need, and here is my formula, for a new prohibition every time
is what? We need an intractable, difficult, social, economic, or medical
problem. But that is not enough. There has to be another thing. It has to
divide by class --- by social or economic class, between US and THEM.

And so, here it comes. '

You know the Federal Government has been spending a lot of money since 1968
trying to persuade us not to smoke. And, indeed, the absolute numbers on
smoking have declined very little. But, you know who has quit smoking, don't
you? In gigantic numbers? The college-educated, that's who. The
college-educated, that's who doesn't smoke. Who are they? Tomorrow's what?
Movers and kickers, that's who. Tomorrow's movers and kickers don't smoke.
Who does smoke? Oh, you know who smokes out of all proportion to their
numbers in the society -- it is the people standing in your criminal
courtrooms, that's who. Who are they? Tomorrow's moved and kicked, that's
who.

And, there it is friends, once it divides between the movers and kickers and
the moved and kicked it is all over and it will be all over very shortly.

It starts with "You know, they shouldn't smoke, they are killing
themselves." Then it turns, as it has -- you see the ads out here -- "They
shouldn't smoke, they are killing us." And pretty soon, that class division
will happen, we will have the legislatures full of tomorrow's movers and
kickers and they are going to say just what they are going to say any time
now. "You know, this has just gotta stop, and we got an answer for it." We
are going to have a criminal statute that forbids the manufacture, sale, or
possession of tobacco cigarettes, or tobacco products period.

You know that the cigarette companies are expecting it. What have they been
doing? They have been shifting all of their operations out of the United
States and diversifying like crazy. Where are they going to sell their
cigarettes? In China, that's where. And they are already moving, because
they see it and I see it.

Ready? What are we going to have? You know what we are going to have. One
day -- when's it gonna happen, ten years, fifteen? -- some legislator will
get up and, just as though it had never been said before, "You know we gotta
solve this smoking problem and I got a solution -- a criminal prohibition
against the manufacture, sale, or possession of tobacco cigarettes." And
then you know what happens. Then everybody who did want a cigarette here
today, if there is anyone here who smokes, you are going to have to hide in
the bathroom. And cigarettes are no longer going to be three dollars a pack,
they are going to be three dollars a piece. And who's going to sell them to
you? Who will always sell them to you? The people who will sell you anything
-- organized crime. You got the concept, we will go through the whole darn
thing again because I am telling you this country is hooked on the notion of
prohibition.

Let me conclude, and again this is my prediction -- I will tell you I don't
think it is subject to opinion. Just look at it. Just take a look at what
has happened now and what will happen. I will tell you how inexorable it is.
If we get together here in the year 2005, I will bet you that it is as
likely as not that the possession of marijuana may not be criminal in this
state. But the manufacture, sale, and possession of tobacco will be, and
why? Because we love this idea of prohibitions, we can't live without them.
They are our very favorite thing because we know how to solve difficult,
social, economic, and medical problems -- a new criminal law with harsher
penalties in every category for everybody.

but ... what is legalization ?