Legal history of marijuana in the United States

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The legal history of marijuana in the United States mainly involves the 20th and 21st centuries. In the 1800s, marijuana (also referred to as cannabis) was legal in most states, as hemp to make items such as rope, sails, and clothes, and was used for medicinal purposes; however, after the Mexican Revolution of 1910, a wave of Mexicans immigrated to the United States and introduced the American public to recreational marijuana use.

The first significant instance of marijuana regulation appeared in Washington D.C. in 1906. Prohibitions of marijuana soon followed in the other states. By the mid-1930s, marijuana was regulated in every state by laws instituted through The Uniform State Narcotic Act.[1]
The federal drug policy of the United States began with the 1937 Marihuana Tax Act,[2] and the establishment of the Federal Bureau of Narcotics. DuPont and William Randolph Hearst played a role in the criminalization of marijuana. In the 1950s, strict mandatory sentencing laws substantially increased federal penalties for marijuana possession (but were removed in the 1970s). In 1964, the Single Convention on Narcotic Drugs entered into force, for the first time placing the U.S. under treaty obligations to control marijuana production and distribution. In the 1980s, mandatory sentencing laws were reinstated for large-scale marijuana distribution, three strikes laws were enacted and applied to marijuana possession, and the death sentence was enabled for marijuana drug kingpins.

In the 1970s, many places in the United States started to decriminalize marijuana. Most places that have decriminalized marijuana have one or more of civil fines, drug education, drug treatment in place of incarceration, criminal charges for possession of small amounts of marijuana, or have made various marijuana offenses the lowest priority for law enforcement. In the 1990s many places began to legalize medical marijuana, which conflicts with federal laws, as marijuana is a Schedule I drug according to the Controlled Substances Act of 1970, which classified marijuana as having high potential for abuse, no medical use, and not safe to use under medical supervision. Multiple efforts to reschedule marijuana have failed and the United States Supreme Court has ruled in United States v. Oakland Cannabis Buyers' Coop and Gonzales v. Raich that the federal government has a right to regulate and criminalize marijuana, even for medical purposes.

Contents [hide] 1 Pre-criminalization (1700s—1800s) 2 Criminalization (1900s) 2.1 Indian hemp regulation (1925) 2.2 Uniform State Narcotic Act (1925-1932) 2.3 Federal Bureau of Narcotics (1930) 2.4 The 1936 Geneva Trafficking Convention 2.5 Marihuana Tax Act (1937) 2.5.1 DuPont, William Randolph Hearst and hemp 2.6 Mandatory sentencing (1952, 1956) 2.7 Reorganization (1968, 1973) 2.8 Mandatory sentencing and three-strikes (1984, 1986) 2.9 United States v. Oakland Cannabis Buyers' Cooperative (2001) 2.10 Gonzales v. Raich (2005) 3 Decriminalization (1970s—2000s) 3.1 Medical use 3.1.1 Restrictions on medical use by state 3.2 Non-medical use 4 Drug courts 5 References

Pre-criminalization (1700s—1800s)

In the 17th century hemp was encouraged by the government in the production of rope, sails, and clothing; however, hemp use declined in the late eighteenth century. In the late nineteenth century, marijuana became a common ingredient in medicine and was openly sold at pharmacies.^[3]

Criminalization (1900s)

See also: Prohibition in the United States

The first significant instance of marijuana regulation appeared in District of Columbia in 1906.^[4] Regulations of marijuana, the word Indian Hemp is sometimes used, followed in Massachusetts in 1911; Maine, California, Texas, Wyoming and Indiana in 1913; New York City in 1914; Utah and Vermont in 1915; Colorado and Nevada in 1917. These laws were passed not due to any widespread use or concern about cannabis, but as regulatory initiatives to discourage future use.^[5][6]

Indian hemp regulation (1925)

In 1925 United States supported regulation of Indian hemp, also known as hashish, in the International Opium Convention.^[7] The convention banned exportation of Indian hemp and the preparations derived therefrom to countries that have prohibited its use, and requiring importing countries to issue certificates approving the importation and stating that the shipment was required "exclusively for medical or scientific purposes". The convention did not ban trade with fibers and other similar products from European hemp, high growing varieties of hemp from Europe traditionally grown in United States for production of fibers with low content of THC

Uniform State Narcotic Act (1925-1932)

The Uniform State Narcotic Act, first tentative draft in 1925 and fifth final version in 1932, was a result of work by The National Conference of Commissioners on Uniform State Laws. It was argued that the traffic in narcotic drugs should have the same safeguards and the same regulation in all of the states. The committee took into consideration the fact that the federal government had already passed The Harrison Act in 1914 and The Federal Import and Export Act in 1922. Many persons assumed that the Harrison Act was all that was necessary. The Harrison Act, however, was a revenue-producing act, and while it provided penalties for violation, it did not give the states themselves authority to exercise police power in regard to seizure of drugs used in illicit trade, or in regard to punishment of those responsible therefor. The act was recommended to the states for that purpose.^[8] As a result of the Uniform State Narcotic Act the Federal Bureau of Narcotics encouraged state governments to adopt it. In the middle of 1930s had all member states some regulation of cannabis.^[9][10][11]

 Federal Bureau of Narcotics (1930)

The use of cannabis and other drugs came under increasing scrutiny after the formation of the Federal Bureau of Narcotics (FBN) in 1930^[12], headed by Harry J. Anslinger as part of the government's broader push to outlaw all drugs.

"When the present administration took office ten countries had ratified the Geneva Narcotic Limitation Convention. The United States was one of these ten.... It was my privilege, as President, to proclaim, on that day, that this treaty had become effective throughout the jurisdiction of the United States....On Jan. 1, 1933, only nine nations had registered their ratification of the limitation treaty. On Jan. 1, 1935 , only nine States had adopted the uniform State statute. As 1933 witnessed ratification of the treaty by thirty-one additional nations, so may 1935 witness the adoption of the uniform drug act by at least thirty-one more states, thereby placing interstate accord abreast of international accord, to the honor of the legislative bodies of our States and for the promotion of the welfare of our people and the peoples of other lands." (Franklin D. Roosevelt, March 1935 in a radio message read by United States Attorney General, Homer Stille Cummings )^[13]

Anslinger claimed marijuana caused people to commit violent crime, act irrational, and act overly sexual. The FBN produced propaganda films promoting Anslinger's views and Anslinger often commented to the press regarding his views on marijuana.

The 1936 Geneva Trafficking Convention

In 1936, the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs (1936 Trafficking Convention) was concluded in Geneva. The U.S., led by Anslinger, had attempted to include in the treaty the criminalization of all activities – cultivation, production, manufacture and distribution – related to the use of opium, coca (and its derivatives) and cannabis for non-medical and non-scientific purposes. Many countries opposed this and the focus remained on illicit trafficking. Article 2 of the Convention called upon signatory countries to use their national criminal law systems to "severely" punish, "particularly by imprisonment or other penalties of deprivation of liberty," acts directly related to drug trafficking.

The U.S. refused to sign the final version because it considered the Convention too weak, especially in relation to extradition, extraterritoriality and the confiscation of trafficking profits. ^[14]

Marihuana Tax Act (1937)

The 1937 Marihuana Tax Act made possession or transfer of marijuana illegal throughout the United States under federal law, excluding medical and industrial uses, in which an expensive excise tax was required. Annual fees for the tax were $24 ($337 adjusted for inflation) for importers, manufacturers, and cultivators of marijuana, $1 annually ($14 adjusted for inflation) for medical and research purposes, and $3 annually ($42 adjusted for inflation) for industrial uses. Detailed marijuana sale logs were required to keep record of marijuana sales. Selling marijuana to any person who has previously paid the tax is $1 per ounce or fraction thereof; however, it is $100 ($1,406 adjusted for inflation) per ounce or fraction thereof to sell any person who has not registered and paid the special tax.^[15]

The American Medical Association (AMA) opposed the act because the tax was imposed on physicians prescribing marijuana, retail pharmacists selling marijuana, and medical marijuana cultivation/manufacturing; instead of enacting the Marihuana Tax Act, the AMA proposed marijuana be added to the Harrison Narcotics Tax Act.^[16]

New York Mayor Fiorello LaGuardia who was a strong opponent of the 1937 Marihuana Tax Act started the LaGuardia Commission that in 1944 contradicted the earlier reports of addiction, madness, and overt sexuality.^[3]

In 1969, the case of Leary v. United States found the Marihuana Tax Act to be unconstitutional since it violated the Fifth Amendment.^[17] In response, Congress passed the Controlled Substances Act as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, which repealed the Marihuana Tax Act.^[18]

DuPont, William Randolph Hearst and hemp

The decision of the United States Congress to pass the 1937 Marihuana Tax Act was based on hearings^[2], reports^[19] and in part on testimony derived from articles in newspapers owned by William Randolph Hearst, who had significant financial interests in the timber industry, which manufactured his newsprint.^[20]

Marijuana activist Jack Herer has researched DuPont and in his 1985 book The Emperor Wears No Clothes, Herer concluded Dupont played a large role in the criminalization of cannabis. In 1938, DuPont patented the processes for creating plastics from coal and oil and a new process for creating paper from wood pulp. If hemp would have been largely exploited, Herer believes it would have likely been used to make paper and plastic (nylon) , and may have hurt DuPont’s profits. Andrew Mellon of the Mellon Bank was DuPont's chief financial backer and was also the Secretary of Treasury under the Hoover administration. Mellon appointed Harry J. Anslinger, who later became his nephew-in-law, as the head of the Bureau of Narcotics and Dangerous Drugs (FBNDD) and the Federal Bureau of Narcotics (FBN), where Anslinger stayed until 1962.^[21]

In 1916, United States Department of Agriculture (USDA) chief scientists Jason L. Merrill and Lyster H. Dewe created paper made from hemp pulp, which they concluded was "favorable in comparison with those used with pulp wood in USDA Bulletin No. 404."^[22] Jack Herer, in the book "The Emperor Wears No Clothes" summarized the findings of Bulletin No. 404:^[23]

USDA Bulletin No. 404, reported that one acre of hemp, in annual rotation over a 20-year period, would produce as much pulp for paper as 4.1 acres of trees being cut down over the same 20-year period. This process would use only 1/4 to 1/7 as much polluting sulfur-based acid chemicals to break down the glue-like lignin that binds the fibers of the pulp, or even none at all using soda ash. The problem of dioxin contamination of rivers is avoided in the hemp paper making process, which does not need to use chlorine bleach (as the wood pulp paper making process requires) but instead safely substitutes hydrogen peroxide in the bleaching process. ... If the new (1916) hemp pulp paper process were legal today, it would soon replace about 70% of all wood pulp paper, including computer printout paper, corrugated boxes and paper bags.

Hemp was a relatively easy target because factories already had made large investments in equipment to handle cotton, wool, and linen, but there were relatively small investments in hemp production. Big technological improvements in the wood pulp industry was invented in the 1930s, for example the recovery boiler, and other improvements came later. So, there is a niche market for hemp paper, but the cost of hemp pulp is approximately six times that of wood pulp,^[24] There was also a misconception hemp had an intoxicating effect because it has the same active substance, THC, which is in potent marijuana strains; however, hemp only has minimal amount of THC when compared to recreational marijuana strains.

An alternative explanation for Anslingers opinion's about hemp is that he believed that a tax on marijuana could be easier to supervise if it included hemp and that he had reports from experiments with mechanical harvesting of hemp reporting that the machines was no success and reports about marijuana farms^[25]

"The existence of the old 1934-1935 crop of harvested hemp on the fields of southern Minnesota is a menace to society in that it is being used by traffickers in marihuana as a source of supply "^[26]

"they were able to cut only a part of the Tribune Farm crop by machine, two thirds of it they did by hand with a sharp hand cuttertuff".^[27]

An argument for the alternative theory is that hemp was not an alternative as material in the new commercial products from DuPont using oil or coal as raw material, the nylon-bristled toothbrush (1938) followed more famously by women's “nylons” stockings (1940). Nylon was intended to be a synthetic replacement for silk not hemp.

 Mandatory sentencing (1952, 1956)

Mandatory sentencing and increased punishment were enacted when the United States Congress passed the Boggs Act of 1952 and the Narcotics Control Act of 1956. The acts made a first time marijuana possession offense a minimum of two to ten years with a fine up to $20,000; however, in 1970, the United States Congress repealed mandatory penalties for marijuana offenses.^[3]

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Reorganization (1968, 1973)

In 1968, the United States Department of the Treasury subsidiary Bureau of Narcotics and the United States Department of Health, Education, and Welfare subsidiary Bureau of Drug Abuse Control merged to create the Bureau of Narcotics and Dangerous Drugs as a United States Department of Justice subsidiary.

In 1973, President Richard Nixon's "Reorganization Plan Number Two" proposed the creation of a single federal agency to enforce federal drug laws and Congress accepted the proposal, as there was concern regarding the growing availability of drugs.^[28] As a result, on July 1, 1973, the Bureau of Narcotics and Dangerous Drugs (BNDD) and the Office of Drug Abuse Law Enforcement (ODALE) merged together to create the Drug Enforcement Administration (DEA).^[3]

On December 1, 1975 the Supreme Court ruled that it was "not cruel or unusual for Ohio to sentence someone to 20 years for having or selling marijuana. Ohio reduces max. sentence to 15 years."^[29]

Mandatory sentencing and three-strikes (1984, 1986)

During the Reagan Administration the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984 created the Sentencing Commission, which established mandatory sentencing guidelines.^[30] The Anti-Drug Abuse Act of 1986 reinstated mandatory prison sentences, including large scale marijuana distribution.^[31] Later an amendment created a three-strikes law, which created mandatory life sentences for repeat drug offenders and allowed the death penalty to be used against "drug kingpins."^[3]

United States v. Oakland Cannabis Buyers' Cooperative (2001)

In 1996, California passed Proposition 215, which legalized medical marijuana. The Oakland Cannabis Buyers' Cooperative, an organization overseen by the city of Oakland, was created to "provide seriously ill patients with a safe and reliable source of medical cannabis information and patient support" in accordance with Proposition 215.

In January 1998, the U.S. Government sued Oakland Cannabis Buyers' Cooperative for violating federal laws created as a result of Controlled Substances Act of 1970. On May 14, 2001, the United States Supreme Court ruled in United States v. Oakland Cannabis Buyers' Coop that federal anti-drug laws do not permit an exception for medical marijuana and rejected the common-law medical necessity defense to crimes enacted under the Controlled Substances Act because Congress concluded marijuana has "no currently accepted medical use" when the act was passed in 1970.

Gonzales v. Raich (2005)

Main article: Gonzales v. Raich

Gonzales v. Raich ruled in a 6-3 decision that the Commerce Clause of the United States Constitution allowed the federal government to ban the use of marijuana, including medical use. The court found the federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered interstate commerce. Congress may ban the use of cannabis even where states approve its use for medicinal purposes. So, text or maps about areas in U.S that have legalized marijuana is misinformation if they do not inform that marijuana is restricted by federal law.

Decriminalization (1970s—2000s)

Medical use

In 1978, Robert Randall sued the federal government for arresting him for using marijuana to treat his glaucoma. The judge ruled Randall needed marijuana for medical purposes and required the Food and Drug Administration set up a program to grow marijuana on a farm at the University of Mississippi and to distribute 300 marijuana cigarettes a month to Randall. In 1992, George H. W. Bush discontinued the program after Randall tried to make AIDS patients eligible for the program. At the time, thirteen people were already enrolled and were allowed to continue receiving marijuana cigarettes; today the government still ships marijuana cigarettes to seven persons. Irvin Rosenfeld, who became eligible to receive marijuana from the program in 1982 to treat rare bone tumors, has urged the George W. Bush administration to reopen the program; however, he has been unsuccessful.^[32]

In 1996, California passed the Compassionate Use Act, which decriminalized medical marijuana by enacting laws that allow regulated marijuana consumption, possession, cultivation, and distribution for medicinal use; since then twelve states have enacted similar laws.^[33] As a result of the court rulings of United States v. Oakland Cannabis Buyers' Cooperative and Gonzales v. Raich, and the classification of marijuana as a Schedule I drug, the Federal government does not permit marijuana to be used medically; the DEA has taken an active stance against medical marijuana and often raids marijuana dispensories.^[34]

In 1972, 1995, and 2002, petitions for marijuana rescheduling in the United States were filed to remove marijuana from the "Schedule I" category of tightly-restricted drugs that have no medical use, as the Controlled Substance Act allows the executive branch to decriminalize medical and recreational use of marijuana without any action by Congress depending on the findings of the Secretary of the United States Department of Health and Human Services on certain scientific and medical issues specified by the Act.^[35]

Restrictions on medical use by state

California

On November 5, 1996 56% of voters approved Proposition 215. The law removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a "written or oral recommendation" from their physician that he or she "would benefit from medical marijuana." Patients diagnosed with any illness where the medical use of marijuana has been "deemed appropriate and has been recommended by a physician" are provided with legal protection under this act. Conditions typically covered by the law include: arthritis; cachexia; cancer; chronic pain; HIV or AIDS; epilepsy; migraine; and multiple sclerosis. No regulations regarding the amount of marijuana patients may possess and/or cultivate were provided by this act, though the California Legislature adopted guidelines in 2003.^[36] In practice, as certain doctors will prescribe marijuana for any condition, the drug is essentially decriminalized for those who can afford to obtain the paperwork.^[37]

Nevada

On November 7, 2000 65% of voters approved Question 9. The law, which removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who have “written documentation” from a licensed physician, took effect on October 1, 2001. Patients diagnosed with the following illnesses can obtain a medical card: AIDS; cancer; glaucoma; and any medical condition or treatment to a medical condition that produces cachexia, persistent muscle spasms or seizures, severe nausea or pain. Other conditions are subject to approval by the health division of the state Department of Human Resources. Once a medical marijuana card is obtained patients may legally possess no more than one ounce of usable marijuana, and may grow no more than seven marijuana plants. The law establishes a state-run patient registry that issues identification cards to qualifying patients. Patients who do not join the registry or possess greater amounts of marijuana than allowed by law are subject to arrest on marijuana charges.^[38]

Oregon

On November 3, 1998 55% of voters approved Measure 67. The law, wich took effect on December 3, 1998, removes state-level criminal penalties on the use, possession and cultivation of marijuana. Patients are required to possess a signed recommendation from their physician stating that marijuana may help alliviate his or her symptoms. Patients diagnosed with the following illnesses are given legal protection under this act: cachexia; cancer; chronic pain; epilepsy and other disorders characterized by seizures; glaucoma; HIV or AIDS; multiple sclerosis and other disorders characterized by muscle spasticity; and nausea. Other conditions are subject to approval by the Health Division of the Oregon Department of Human Resources. Patients may legally possess no more than three ounces of marijuana, and may grow no more than seven marijuana plants. The law establishes a state-run patient registry that issues identification cards to qualifying patients. Patients who do not join the registry or possess greater amounts of marijuana than allowed by law may be subject to arrest on marijuana charges.^[39]

Washington

On November 3, 1998 59% of voters approved Measure 692. The law removes state-level criminal penalties on the use, possession and cultivation of marijuana. Valid documentation from a physician affirming that the patient suffers from a medical condition and that the "potential benefits of the medical use of marijuana would likely outweigh the health risks" is required. Patients diagnosed with the following illnesses are given legal protection under this act: cachexia; cancer; HIV or AIDS; epilepsy; glaucoma; and multiple sclerosis. Other conditions are subject to approval by the Washington Board of Health. Patients may legally possess or grow no more than a 60-day supply of marijuana.^[40]

These votings have however, as mentioned above, today no effect on federal laws that criminalize use of marijuana.

Non-medical use

See also: Places that have decriminalized marijuana in the United States

After the 1960s, a time characterized by widespread use of marijuana as a recreational drug,^[3] a wave of legislation in America sought to reduce the penalties for the simple possession of marijuana, making it punishable by confiscation and/or a fine rather than imprisonment. Some of the first examples of decriminalization in drug policy were found in Alabama, when state judges decided to no longer impose five year mandatory minimum sentences for small possession (one marijuana cigarette); Missouri, when their legislature reformed statutes that made second possession offenses no longer punishable by life in prison; and in Georgia, when that state revised second sale offenses to minors no longer punishable by death.^{[citation needed]}

In 1970, the United States Congress repealed mandatory penalties for marijuana offenses and The Comprehensive Drug Abuse Prevention and Control Act separated marijuana from other illicit narcotics and removed mandatory sentences for possession of small amounts of marijuana.^[3]

In 1972 President Richard Nixon commissioned a comprehensive study from the National Commission on Marijuana and Drug Abuse. The Commission found that the constitutionality of marijuana prohibition was suspect, and that the executive and legislative branches had a responsibility to obey the Constitution, even in the absence of a court ruling to do so. The Richard Nixon administration did not implement the study's recommendations. However, the report has frequently been cited by individuals supporting cannabis rescheduling in the United States.^{[citation needed]} (View Report)

In 1973 Oregon decriminalized marijuana^[41] and Colorado, Alaska, Ohio, and California followed suit in 1975. By 1978, Mississippi, North Carolina, New York, and Nebraska had some form of marijuana decriminalization.^{[citation needed]} In 2001, Nevada reduced marijuana possession from a felony offense to a misdemeanor, but only for adults age 21 and older, with other restrictions.^[42]

Starting in the 1970s, multiple states, counties, and cities decriminalized marijuana for non-medical purposes. While many states, counties, and cities have partially decriminalized marijuana, on November 3, 2004, Oakland passed Proposition Z, and became the first place to fully decriminalize marijuana to allow the licensing, taxing, and regulation of marijuana sales if California law is amended to allow so. (see Places that have decriminalized marijuana in the United States for further information).

A recent vote of 54% to 46% in Denver has voted to legalize the possession of up to an ounce of marijuana, although this does not overrule federal laws and one may still be arrested for it, and it only applies to people age 21 and older.

Drug courts

Drug courts are fast growing in number. The first started in 1989; 2140 drug courts were in operation May 2008, with another 284 being planned or developed.^[43] They offer offenders charged with less-serious crimes of being under the influence, possession of a controlled substance, or even drug-using offenders charged with a non-drug related crime the option of entering the drug court system in lieu of serving a jail sentence. Offenders will have to plead guilty to the charge, agree to take part in treatment, regular drug screenings, and regular reporting to the drug court judge for a minimum of one year. Should the offender fail to comply with one or more of the requirements they may be removed from the drug court and incarcerated at the judge's discretion. If they complete the drug court program the charges brought against them are dropped or reduced.

References