THE HISTORY OF LEGISLATIVE CONTROL OVER
OPIUM, COCAINE, AND THEIR DERIVATIVES
David F. Musto, MD
From Schaffer Library of Drug Policy (http://www.druglibrary.org/schaffer/history/ophs.htm)
Legislative control over dangerous drugs may be dated from attempts in the nineteenth century to prevent acute poisoning by certain substances that might be purchased in ignorance of their lethal potential or might be too easily available to would-be suicides. Opium was being sold in a crude form containing about 10 percent morphine, as well as in concoctions derived from crude opium: paregoric, laudanum, and a solution in acetic acid known as "black drop." Morphine had been isolated from opium in 1805 by the German pharmacist, F. W. Serturner, but production of the powerful active ingredient of opium on a large scale was delayed until the 1830s.1 From that time onward, in factories in Germany, Great Britain, and the United States, morphine was produced in great quantities. Thus when in 1868, Great Britain came to enact pharmacy laws to control dangerous substances, "opium and all preparations of opium or of poppies" was listed alongside such substances as oxalic acid as commodities that could not be sold without being labeled "poison."'
The Pharmacy Act of 1868 is an important symbol of legislative control in a Western country. The act was not the most strict among nations; perhaps the Prussian regulations were stricter and more comprehensive, but establishment by the British of some limitation on the availability of dangerous drugs-drugs that would eventually become more serious a problem for society as addictive agents than as tools for suicide-was a policy also followed by other European nations. It had an apparently discouraging effect on the per capita consumption of opium, opiates, and cocaine in the late nineteenth century and contributed to the low level of British consumption (at least compared to the American) right up to the 1960s.3
The experience of the United States stands in contrast to Britain's. The Pharmacy Act of 1868 was regulated in large part by the organized association of pharmacists, the Pharmaceutical Society (established 1841). In order to retail, dispense, or compound "poisons," or to assume the title of chemist, druggist, pharmacist, or dispensing druggist or chemist, the individual had to be registered by the Pharmaceutical Society. As well as being the testing and registering body, the Society was also given the initial responsibility for adding new drugs to the poison list. Thus the law, which ultimately would be enforced in British courts, was monitored by local members of the Pharmaceutical Society as a tool in competition with unregistered druggists, grocers, and anyone else who might attempt to purvey these drugs to the public.
While the act presumably aided the public health by having dangerous drugs sold or dispensed by individuals knowledgeable about their qualities, it was also a convenient aid to the trade of registered pharmacists. Although the drugs could be obtained with no specific restraint on the amount or frequency of sale, the bottles had to be labeled "poison." A stricter category of substances also required that the purchaser be an acquaintance of the pharmacist or someone the pharmacist knew. This list included arsenic and "strychnine and all poisonous alkaloids and their salts." The impact of this modest obstacle to the acquirement of dangerous drugs should not be underestimated. Further, the self-interest that would motivate registered pharmacists to monitor breaches of the law provided an unpaid, but interested, drug enforcement cadre scattered throughout Great Britain. "Patent medicines" were excepted from these controls, and this led to a campaign against them later in the century, but the pure forms of the drugs, e.g., morphine suitable for injection, were restricted in availability from the time of the Pharmacy Act onward.' In the United States, throughout the nineteenth century, both medicine and pharmacy remained essentially unorganized, although there were some physicians and pharmacists attempting to organize their professions. The American Medical Association, which was founded in 1847 and which we now might think of as the dominant medical organization, was a small and nationally unrepresentative group until about World War 1.5 The American Pharmaceutical Association, founded four years later, grew slowly and, like the AMA, lacked the authority to license practitioners. The pharmacy establishment was divided sharply among drug manufacturers, wholesalers, and retailers, whose divergent interests the APhA tried to coordinate, but each segment of the profession came to work through its own organization: the National Wholesale Druggists' Association (1882), the National Association of Retail Druggists (1898), and many other groups.6 There was no national group for the health professions to which government could turn for regulation, even if the American constitutional system had permitted such an arrangement.
Licensing of pharmacists and physicians, which was the central government's responsibility in European nations, was, in the United States, a power reserved to each individual state. In the era of Andrew Jackson, any form of licensing that appeared to give a monopoly to the educated was attacked as a contradiction of American democratic ideals. State after state repealed the medical licensing laws adopted in earlier days. Practical concerns also supported repeal: Legislators preferred to leave it to the patients to decide which of the many competing theories of medicine was the best. Instead of moving toward a national system of licensing for health professionals, therefore, individual states were deregulating the professions. American medical schools were similarly unregulated, and many flourished-some no better than diploma mills. The states did not begin reestablishment of medical licensing until the 1880s, and even then the movement was spotty, with a wide range of standards.' Pharmacists, also seeking to raise standards and limit competition, likewise fought at the state level for licensing, since the U.S. Constitution placed in the hands of states the regulation of the health professions. Although some requirements for labeling of over-the counter medicines would come with the Pure Food and Drug Act of 1906 as an exercise of the federal right to regulate interstate commerce, in general, the nineteenth and early twentieth century interpretation of the Constitution favored a strict division between state and federal powers.
The status of legislative control of dangerous drugs during the nineteenth century may be summed up as follows: The United States had no practical control over the health professions, no representative national health organizations to aid the government in drafting regulations, and no controls on the labeling, composition, or advertising of compounds that might contain opiates or cocaine. The United States not only proclaimed a free marketplace, it practiced this philosophy with regard to narcotics in a manner unrestrained at every level of preparation and consumption.
Through a slower pace of professional development, the United States also lagged behind Britain and other European countries in establishing broadly based organizations representing the nation's physicians or pharmacists to which the central government could turn for regulation. Second, the form of government adopted in the United States, a federation of partly independent states, was a conscious attempt to prevent establishment of an all-powerful central government characteristic of Europe. In the nineteenth century, this remarkably successful form of government entailed each state making its own regulation if it wished to; the result was an array of controls that varied from one state to another. In fact, states made little attempt to control addictive drugs until quite late in the last century, and those efforts did not prove very effective.
During the first part of the nineteenth century, the amount of opiates used in the United States may have been comparable to that used in Britain, where some areas, notably the fen counties, had a fairly large per capita consumption. Inhabitants there often took a dose of laudanum or some form of opium daily to keep away the fevers associated with the marshlands.8 More generally, parents reputedly purchased one or another form of opium to rub on the gums of teething infants or to spoon-feed a child to induce sleep so that the mother without provision for child care could work in the local factory. These accounts are anecdotal, but recent historical studies do suggest that the taking of some form of opium for pain, sleep, or to ward off illness was not uncommon. The occasional death of an infant from an overdose of opium or the suicide of an adult by means of opium prompted parliamentary interest in the distribution and labeling of the drug. In large measure, the 1868 Pharmacy Act was the result. One should note however, that through the provisions of the act and the designation of the Pharmaceutical Society as the most responsible body, the pharmacists also achieved some control over the profession and a lead on the other health professions. A somewhat similar victory for U.S. pharmacy would be found in the details of the Harrison Narcotic Act in 1914.9
In nineteenth-century America, the unimpeded importation of opium and the free economy in opiates do give an advantage to the historian, for estimates of per capita consumption are more reliable when there are few restrictions on the importation, sale, and consumption of a product. Because the growth of poppies within the country and preparation of opium from them seem to have been a minor contributor to American use, the import statistics, begun in 1840 and continued to the present day, are reliable as a guide to domestic consumption until the Harrison Act of 1914. Certainly the minimum level and the trend can be observed. After the Harrison Act, these statistics grew less reliable, for smuggling becomes a more uncertain variable, but we can say that at least during the nineteenth century the annual per capita consumption rose steadily from about 12 grains in 1840 (an average single dose being one grain) until the mid-1890s, when it reached 52 grains annually per capita. Then statistics show that average individual consumption gradually subsided up to 1914, by which time the per capita rate had fallen back to the level of about 1880." In Great Britain, the per capita consumption declined during the latter half of the nineteenth century." During that same period, opium use in the United States rose dramatically. The peak of opiate addiction in the United States occurred about the turn of the century, when the number probably was close to 250,000 in a population of 76 million, a rate so far never equaled or exceeded. 12 Heroin had been introduced into the pharmacy in 1898 and had contrasting impacts in Britain and the United States. In New York City, the addiction capital of the United States, heroin became the drug of choice for recreational addicts, and the number of addicts was measured in the tens of thousands by 1920. In Britain, the addiction rate for heroin addicts by 1920 was minuscule. 13 Of course, the use of drugs is determined by many factors, but I would like to suggest that the contrast in easy availability of narcotics in America and Britain-created by political and social factors removed from considerations of addiction-underlay the strikingly different rates of addiction each country experienced well into this century. The rise in addiction with which we are more familiar, that of the 1950s and more recently, appears to be associated with additional factors that will be discussed later.
Americans have something to learn from their earlier and extensive consumption of opiates, including heroin, and also massive consumption of cocaine, which occurred before World War I. This era is forgotten. We commonly act as if the heroin "epidemic" of the 1960s or the current cocaine "epidemic" is a new phenomenon in the United States, that the widespread use of a drug implies that legalization or "decriminalization" is the only reasonable response. The history of attempts at legislative control in the United States suggests that other courses may be effective and that these alternatives to legalization appear to have reduced enormous opiate and cocaine consumption in the United States earlier in this century. Therefore, it is worthwhile to consider these early efforts at narcotic limitation if we are to approach contemporary policy issues with an appreciation of the range of policy options that reduce or encourage ingestion of these substances. For in spite of the great difference in addiction rates between the United States and Great Britain in 1920, the United States did reduce its addiction rate to a relatively small number. On the other hand, the low heroin addiction rate in Great Britain prior to the 1950s did not prove a protection against drug problems in that nation, although the level of use in Britain has not reached the proportions to which we are accustomed in the United States. Clearly the social and legal factors affecting drug use are complex, and there is no single influence that determines a particular level of drug use and abuse.
AMERICAN LEGISLATIVE CONTROL OVER OPIUM AND OPIATES TO 1914
The role of opium and its derivatives in the United States can be traced independently from cocaine until 1914, when these substances were linked together as "narcotics" through the Harrison Act. Technically, only the opiates are narcotics, that is, sleep-inducing, and they all have different effects. Nevertheless, most dangerous drugs, including cannabis, were grouped under the rubric "narcotics" from at least the 1920s until the 1960s.
As mentioned above, opium was available in many forms derived from crude opium long before the nineteenth century. In America, the two developments that spurred both consumption and concern about opium were (1) the isolation of morphine and its injection into the body with hypodermic syringes and (2) the introduction of smoking opium, which had been brought to the United States mainly by a feared minority, Chinese laborers imported to help build western railroads. The much greater ease of addiction through use of morphine compared to the more dilute forms employed previously focused attention on the drug, medical practitioners, and modern technology in the form of the hypodermic syringe.
Consumption of opium in the United States rose steadily before and after the Civil War. There had been complaints before the war about "opium drunkards" by such prominent and progressive physicians as Oliver Wendell Holmes, but in the second half of the century, physicians, as well as the general public, widely deplored opium and morphine addiction. To be addicted to morphine was to harbor a shameful secret to be hidden from others at whatever cost, a point illustrated in Eugene O'Neill's moving play about his own family, Long Day's Journey into Night. Written in his later years, it was based on his mother's addiction by a thoughtless physician, and the pain of this memory had remained so great that O'Neill would not permit the play's production during his lifetime. The leading American surgeon and the first professor of surgery at The Johns Hopkins Hospital, William Stewart Halsted, was a morphine addict for the last several decades of his life. His secret was kept hidden carefully until the publication of Sir William Osler's private diary in 1969." Osler had been Halsted's physician while Osler was on the Hopkins faculty. Halsted's addiction did not appear to interfere with his work.
Americans received opium and morphine not only from their physicians for pain; they could receive what they wanted, for whatever reason they chose, over the counter or from mail order catalogues. The American free enterprise system, coupled with the federal system of government, meant that a bottle heavily laced with morphine could be sold across state lines as an "addiction cure" and affirmed on the label to contain no morphine whatsoever, quite within the law. States could pass laws restricting such advertising, but they were not inclined to do so. Patent medicine companies were the leading advertisers in American newspapers. They developed an ingenious protection from prying investigations or public pressure to reveal secret formulas, or from any state requirement to make only valid claims for effectiveness: The proprietary manufacturers included in their lucrative contracts with newspapers a proviso that the advertising agreement would be void if the state in which the newspaper was published enacted any laws affecting the sale or manufacture of the nostrums. 11
In the nation's capital, the manufacturers also fought off requirements that their nostrums be labeled as to contents. Bills to enact such a law under the interstate commerce clause of the Constitution were defeated repeatedly, but in the 1890s a new reforming spirit was evident in the nation. These reforms were extensive, ranging from control over the use of forest land, to government inspection of meat and other comestibles and laws relating to adulterants in foods, and to drugs considered unsafe. Attention to the danger of narcotics using the term broadly-accompanied the peak of per capita consumption in the United States. It is clear that what were regarded as the most negative aspects of drug use led to the passage of the new legislation. The simplest reform, correct labeling, was part of the Pure Food and Drug Act of 1906. Any over-the-counter medicine - commonly these would be "patent medicines"-had to be labeled correctly as to inclusion of any of the following drugs: morphine, cocaine, cannabis, or chloral hydrate. A long-desired reform, it simply informed the purchaser whether any of these drugs were present; it did not prevent purchase or restrict the amount of the drug. 16 Nevertheless, reports at the time indicate that the amount of these substances dropped from a third to a half as a response to public concern.17 Although the newspapers remained quiet, widely read magazines such as Collier's and Ladies Home Journal railed against patent medicines, especially against morphine and cocaine. Even after passage of the truth-in-labeling laws, the magazines continued their exposes unabated until the next major step, which was restriction on the availability of the drugs themselves."
Tracing the movement to restriction, as opposed to labeling accuracy, requires a step back to the mid-nineteenth century. Patent medicines are thought to have created some addiction, but the number of addicts is difficult to estimate. That physicians addicted or assisted in the addiction of patients is more certain. The problem of iatroaddiction initially was approached by limiting renewal of prescriptions for opiates. These legal controls were mostly in the form of additions to the health statutes and depended for their efficacy on the judgments of physicians and pharmacists. These controls would not, of course, affect interstate commerce in narcotics or the familiar patent medicines, which still could be bought over the counter. No consistent police efforts to enforce these laws appear to have been undertaken.18
As the public and leaders of the health professions became more aware of the growing number of those addicted to opiates, chiefly morphine, state laws were amended to be more stringent, and the police occasionally staged crackdowns. As will be recalled, however, the professions were pretty much unorganized and struggling to achieve mandatory licensing; a threat to take away a license could not hold much fear until a license was required to begin with. Legislators also felt, or at least claimed, a helplessness when neighboring states did not enact strict laws-a circumstance more familiar to us with variations in- the legal drinking age between states-with the result that enforcement was weak. This circumstance, combined with a poorly trained medical profession, a lack of professional organization, and an absence of laws controlling either patent medicine or interstate commerce in drugs, left local controls more symbolic than effective.
The nineteenth century's last decade brought the rise of what would come to be called the Progressive Movement, a set of reforms usually taking the form of federal laws affecting the entire nation with the ostensible purpose of improving the nation's morals or resisting the selfish actions of the rich and powerful. Alongside it grew a temperance, soon a prohibition, movement that would eventuate in the Eighteenth Amendment mandating prohibition of alcohol distribution for nonmedical purposes in the United States. In many ways, of course, the antialcohol movement was part of the Progressive Era; its startling success and later dramatic repeal have given the alcohol issue a somewhat separate development in our minds, but the interrelation between the battles against alcohol and against narcotics is an important one. The antialcohol crusade helped establish the attitude that there could be no compromise with the forces of evil, that "moderation" was a false concept when applied to alcohol: Prohibition was the only logical or moral policy when dealing with this great national problem. By the nineteenth century a new wave of state prohibition laws was enacted. These were tempered by the contemporary constitutional understanding that a state prohibition law did not prevent purchase of liquor from a "wet" state, for that would be a form of interstate commerce and not subject to the states' powers. This assumption helped placate some doubters about prohibition, but the staunch fighters against alcohol also sought to remove that loophole. This they did through the Webb-Kenyon Act of 1913. Without going into the details of the broad and involved movement that led to national prohibition, we should note that the significance for the control of narcotics is that another dangerous substance, over which there was even more dispute as to the means of control, progressed inexorably toward a policy of "no maintenance" and no compromise. The moral question of how to deal with a dangerous substance was being fought out over alcohol, but the case would be stronger even with narcotics when that issue was brought to national deliberation.
The means by which the narcotics issue arose at the federal level was accidental. Certainly it would have come to the attention of Congress and the president eventually as a corollary to the alcohol prohibition movement or as a way of controlling addiction, which was becoming a target of journalist reformers and physicians. It was acquisition of the Philippines through the Spanish-American War that occasioned action by the federal government.
Again, in order to understand how the Philippines forced the central government to take action on opium, it is necessary to appreciate the divisions between federal and state powers that were so marked until the last half-century. The Philippines, unlike a state, came directly and wholly under the control of the federal government. At last, Congress could not avoid making decisions on such matters as the local availability of opium. Opium had been provided to Chinese on the Philippine Islands through a Spanish government monopoly. Civil Governor William Howard Taft considered whether the monopoly should be reinstituted. It was his judgment that this would be reasonable and that the profits from the opium monopoly could be used to help educate Filipinos, a task the United States eagerly accepted as it sought to provide a model government for its first colony. 20
It was at the point in 1903, when this reinstitution was passing through the Philippine government under the eye of Civil Governor Taft, that the moral question of compromising with "evil" affected the future of opium's legal availability in that land. Missionaries in Manila and in the United States had learned that "tainted money" from opium sales was to be employed for education, and they besought President Theodore Roosevelt to prevent this moral wrong. He ordered Taft to stop the bill, and that was the end of it. The mood of moral leaders in the United States was sufficient during the first few years of this century to prevent any such "maintenance" program, even if it was restricted, as promised, to the Chinese in the Philippines. This immediate reaction to allowing opium to be used for purely "recreational" purposes, coming even before the Food and Drug Act, gave a signal as to how the federal government would respond to later questions regarding the legal supply of opium to individuals, not for medical reasons but for enjoyment or to satisfy their addiction.
In response to the veto from Washington, Governor Taft appointed an Opium Investigation Committee to consider how other Asian territories handled the opium problem. This committee introduces us to Bishop Charles Henry Brent, the Protestant Episcopal bishop of the Philippines, who had come out with Taft to help in Americanization of this new possession. Bishop Brent later would become world famous for his pioneer efforts to launch the ecumenical movement among Christian churches, but his second claim to fame was as a world leader against nonmedicinal uses of narcotics. He was appointed to the committee, which traveled to Japan, Formosa, Shanghai, Saigon, and Singapore examining how other nations dealt with the opium user. He and the other members of the committee found the Japanese policy in Formosa, a Japanese possession since its seizure from China in 1895, to be the most effective and enlightened. Japan opposed smoking opium but did not try to stop confirmed addicts abruptly from indulging in their habit. Japan, hoped to "mature out" the opium smokers and leave an opium-free colony. In Japan, itself, opium use was controlled stringently by the government, rare even among Chinese aliens, and strongly deprecated by Japanese society.
The Philippine Opium Investigation Committee recommended that (1) male opium smokers over 21 should be registered in order to receive opium from a reinstituted government monopoly and (2) after a three-year period, the amount provided the smokers be reduced gradually until the smokers had been completely weaned from the drug. 1 But Congress reacted more sternly. Congress decreed immediate opium prohibition, except for medicinal purposes, for all native Filipinos; non-Filipinos-mostly Chinese-were allowed a three-year period of use. Over 12,000 non-Filipino opium users were registered, and their usual dosage was maintained for two-and-onehalf years. During the final six months of the three-year leniency period ending March 1908, the opium provided was gradually reduced to zero. For official purposes, opium smoking had stopped in the Philippine Islands. One additional point: The opium dispensing stations established under these laws were the first American narcotic clinics, although their goal was not long-term maintenance but rather registration and detoxification.
The Philippine situation forced the federal government to take a stand on opium use for nonmedicinal purposes, and the decision was to prohibit. To Congress, once the question was posed, compromise with narcotics was not a politically practical alternative. The Philippines also gave the United States leadership of the international control of narcotics, a role it still holds. It was apparent to the Opium Investigating Committee that the solution to the Philippine opium problem lay in the control of international trafficking in opium, as well as in the curtailment of opium production in the original producing states, such as India, China, Burma, Persia, and Turkey, to name some of the most prominent sites for the cultivation of the opium poppy.
At the time that the Philippines were perceived to be a victim of external sources of opium, the United States was having increasing problems with the Chinese Empire. Owing to maltreatment of Chinese in the United States, merchants in China planned a voluntary embargo on American goods. This worried American industrialists, wholesalers, exporters, and the federal government. China had also embarked on a vigorous effort to rid itself of opium use and, employing draconian methods, was having some success. As a means to indicate good will to China, to aid the Philippine opium problem, and to take an international leadership position on a moral issue of the times, the United States proposed, following Bishop Brent's suggestion to President Roosevelt, to convene an international meeting at Shanghai to consider the opium traffic among nations and to suggest ways in which China's antiopium campaign might be aided.
Thus, the Shanghai Opium Commission came into being. It would meet during February 1909, with Bishop Brent as its elected president. The group was designated a "commission" because the United States was unable to gain approval for a more powerful convocation, a "conference," which under international law could draft a treaty that would, if ratified, bind the signatory states. A "commission," on the other hand, could make findings of only fact or opinion. In addition to the United States and China, those who accepted invitations to Shanghai were Great Britain, France, the Netherlands, Persia, Japan, Italy, Austria-Hungary, Germany, Portugal, Siam, and Russia. Turkey accepted but did not send a representative. Persia was represented by a local merchant.
The resolutions adopted by the commission were merely recommendations and, even as such, had a comfortable vagueness that allowed a latitude of interpretations. For example, Resolution Three, taking cognizance of the near unanimous agreement that opium for nonmedicinal uses should be prohibited or "carefully regulated," called upon nations to "reexamine" their laws. This could hardly be considered a clarion call for prohibition of nonmedical uses, but it was Brent's goal to achieve a series of resolutions that at least pointed in the direction of action to control traffic in narcotics, with the hope that a future conference would enact a treaty initiating such control."
The road from the Shanghai Opium Commission to the Hague Opium Conference, which convened in December 1911 and resulted in the Opium Convention of 1912, was a tortuous one, but after the Shanghai meeting, the United States continued to press for a second and more significant gathering. Eventually, the nations gathered in The Hague, and once again Bishop Brent was elected the presiding officer.
The Hague Opium Convention (which concerned cocaine as well as opium) placed the burden of narcotic control on the domestic legislation of each nation. Chapter Three of the convention called for control of each phase of the preparation and distribution of medicinal opium, morphine, heroin, cocaine, and any new derivative that could be shown to have similar properties .24
The convention was not put into force by the dozen nations who attended the First Opium Conference, for it was agreed that the requirements would be held in abeyance until all forty-six world powers had signed and ratified the convention. Eventually three conferences were held, the second in 1913 and the third in 1914, only weeks before the outbreak of World War 1. A compromise was reached regarding the implementation of the treaty: Any ratifying nation was permitted to put the treaty into effect in 1915, even if ratification had not been unanimous. But only seven nations did this by the end of the World War and the beginning of the Versailles treaty negotiations in 1919. The United States supported incorporating the Hague Convention into the Versailles treaty, so that ratification of the treaty ending World War I would at the same time bring the nation under the requirements of the Hague Convention, which required national and domestic legislation to control the preparation and distribution of opiates and cocaine. Of course, the United States never did ratify the Versailles treaty, but it had already ratified the Hague Convention in 1913 and had put it into effect in 1915. One significant result of the inclusion of the Hague Convention in the Versailles treaty was the passage in Britain of the Dangerous Drugs Act of 1920, an action taken not because of any serious problem with addiction but because, by ratifying the Versailles treaty, Britain had committed itself to comprehensive domestic legislation. 25
DOMESTIC NARCOTIC LEGISLATION IN THE UNITED STATES
During the year or so prior to the Shanghai Opium Commission, the United States suggested topics to be discussed in 1909, and one of the topics was a report on domestic antinarcotic legislation. Americans understood that strong and enforced domestic legislation in other nations would result in diminishing the flow of drugs into the United States, but would other nations understand why the United States had no national antinarcotic legislation whatsoever? Americans knew that federal-state separation of powers made a national antinarcotic law rather difficult, but the State Department decided that something should be on the books when the U.S. delegation arrived in Shanghai.
The simplest law that could be framed and stand a chance of passage by the U.S. Congress before the commission opened was one that excluded from the United States opium not intended for legitimate medical uses or, in other words, opium prepared for smoking. Here there was an ironic combination of political factors. The United States hoped one of the major effects of the Shanghai Commission would be to placate China with regard to the poor treatment given Chinese nationals in the United States. Such treatment was in violation of our treaty obligations with China. The impetus for banning smoking opium from the United States, however, had developed from the fear and loathing of the Chinese, who were associated intimately with this particular manner of ingesting opium. Thus, the negative American attitude toward Chinese aliens gave the push that passed a "face saving" law designed to show China the good will of the United States.
After the law was enacted on February 9, 1909, it was announced dramatically in Shanghai to the other nations as proof of American sincerity.26 And yet no one in the American delegation or within the State Department had any illusions that this law would control domestic narcotic use. Additional legislation was seen as imperative both to curtail the American narcotics problem and to display an American example to other nations where the implementation of narcotics control programs was essential to the solution of the American domestic problem.
Dr. Hamilton Wright, a physician with political interests who had been appointed opium commissioner by the State Department in 1908, oversaw the State Department's preparation for the Shanghai meeting, which included culling information from police departments, physicians, pharmaceutical houses, etc., regarding the narcotic problem and consumption in the United States. Bishop Brent was the chairman of the delegation, but after his elevation to the commission's presidency, Wright became the acting head. Back in Washington after the commission meeting, Wright took up the battle for an international meeting that could frame a treaty and played a leading role in the preparation of domestic antinarcotic legislation. He had opposition within the State Department on both questions, but he finally won the assent of Philander C. Knox, the secretary of state, and moved ahead.
Wright, who combined an aggressive personal style with self-righteousness and a thirst for political preferment, was less effective than he otherwise might have been. He never got the prize plum for which he yearned, the ministry to China, and his chief claim for notability, the Anti-Narcotic Act of 1914, known even then as the "Harrison" Act, left him at the moment of achievement with almost no further role in the antinarcotic movement. Eventually, he volunteered to help the wounded on the western front during World War 1, was injured 27 there in an automobile accident, and died in 1917 in Washington. His indomitable wife, Elizabeth Washburn Wright, carried on his 28 battle for world control of narcotics until her death in 1952.
In late 1909 Dr. Wright proposed a domestic law that would be based on the federal government's power of taxation. The alternative federal power was that over interstate commerce, but Wright believed that taxation would result in a detailed accounting of narcotics from their introduction into the United States to their distribution to manufacturers, wholesalers, and retailers, including pharmacists and physicians. Heavy fines would be levied on anyone not keeping records accurately or selling and transferring these products without proper reporting and payment of taxes.
Wright tried to solve the federal/state dichotomy in this manner: The information obtained by this proposed law would be made available to state boards of pharmacy and medicine, which would then take appropriate action to ensure that "the proper relations . . . should exist between the physician, the dispensing druggist, [and] those who have some real need of the drugs.' "29 So it is evident that at this early stage, two years before the Hague Convention, Wright and the State Department did not envision a federal role in policing the relationships between, say, an addict and his or her supplying pharmacist or physician. The sanctity of the state's police powers would be maintained; the federal government would supply only information. Reformers believed that the information, however, could lead a responsible state agency to take only one action, that is, to curb the supply of narcotics to those who did not have a medical need for it-and "mere" addicts did not fall into that category.
The Foster Anti-Narcotic Bill (1910-1911)
Republican Congressman David Foster of Vermont introduced Wright's bill in April 1910. In addition to opium and cocaine, as in the eventual Harrison Act, the bill was aimed at cannabis (marijuana) and chloral hydrate, the same substances the Food and Drug Act of 1906 required to be revealed on labels. It did not allow small amounts of the drugs in mild remedies such as cough syrup to be exempt from the stringent reporting requirements and their severe penalties. Druggists feared the multitude of stamps and labels at each stage; the fines, which would range from $500 to $5,000; and the one-to-five-year jail sentences. The word "knowingly" did not qualify the prohibited actions, making it likely that simple errors without any intention to deceive would result in horrendous punishments. Although support for the bill could be found, the individuals in the drug trade would not endorse the detailed and hazardous provisions of the Foster Bill. It never came to a vote in the Sixty-first Congress, which ended in March 1911.30
The next Congress was marked by a significant change: For the first time in almost two decades, the Democrats gained control of the House of Representatives. The South now had achieved new importance, in that committee chairmanships changed hands. In the Sixty-second Congress the Foster Bill became the Harrison Bill, named after Francis Burton Harrison, a New York City Democrat who served on the Foreign Relations Committee. Dr. Wright continued his difficult task of trying to obtain the most stringent bill consistent with winning essential political support from the medical and pharmaceutical interests and now from the Democratic Party. In order to mitigate the severity of the original Foster Bill, the drug trades established the National Drug Trade Conference, which would represent the major trade associations and try to reach a compromise position on the complex antinarcotic bill. The NDTC, which first met in Washington, D.C., in January 1913, provided the most powerful influence on the writing of what would become known as the Harrison Act."
The attitude of the newly influential southern Democrats toward any potential invasion of states' rights now had to be taken more seriously. These politicians feared an interference with the South's local laws, which enforced racial segregation and Negro disenfranchisement. They remembered the era of "reconstruction," when the North ruled the South following 1865, and wanted to maintain the authority the white citizenry had subsequently won with the withdrawal of troops and "carpetbaggers." The narcotic control proposals threatened to intrude federal authority into the states, affecting local pharmacists and physicians and threatening to reach right into a neighborhood and send an individual to federal prison. Furthermore, this example of using the federal tax power primarily to achieve a moral end-for the taxes were not intended to bring in a significant revenue but rather to force disclosure and compliance with rules of narcotics distribution-could be a precedent for other concerns brewing in the United States, such as protecting Negro voting rights in the South.
Dr. Wright, therefore, faced a new set of attitudes in the Democratic-controlled House. He reacted by stressing the impact of narcotics, especially cocaine, on Negroes. He attributed attacks on whites to the crazed Negro cocaine fiend. He also argued that many poor Negroes would not have the energy or knowledge to send away for the cocaine, so the conclusion must be that northern businessmen who did not care about the South's concerns were shipping-via interstate commerce-cocaine to Negroes. Further, unscrupulous or ignorant employers were said to be supplying cocaine to their Negro workers .32
One further concern about the precedent the antinarcotic law would provide related to the flourishing prohibition movement. As prohibition was achieved in state after state, the loophole for at least the upper and middle classes was that alcohol could be ordered across state lines and shipped into a dry state, for interstate commerce was regulated by the federal government, which so far was not teetotal. The Webb-Kenyon Act of 1913, however, was passed to close this loophole, survived President Taft's veto, and, much to the surprise of many, was declared constitutional by the Supreme Court. This occurrence removed one of the stumbling blocks to the Harrison Bill, for now a national antinarcotic law could not serve as a precedent for curtailing interstate commerce in a dangerous substance.
In the course of all this maneuvering, no one rallied to the defense of any of the drugs named for control except that occasionally cannabis was described by someone as not habit-forming or not as serious as opium or cocaine. Perhaps because the cannabis problem was not seen to be serious or because the drug did not seem so dangerous, it was dropped from the proposed law. Chloral hydrate, a sleeping medicine, was also dropped. The attitude toward opium and cocaine, however, was almost totally condemnatory. The only question was how to control their distribution most efficiently, since they had medicinal value but were also considered dangerously addicting. This was in sharp contrast with alcohol; its use divided the nation, and huge legitimate industries depended upon its continued consumption.
The government and the trades eventually reached agreement on the proposed law by moderating the record-keeping provisions, reducing penalties, and allowing the sale of patent medicines with small amounts of narcotics in them. Representative Harrison introduced it in June 1913, and it was passed quickly by the House. In the Senate some amendments were offered, a few with an apparent goal of destroying the bill's chances of passage. In August of 1914, though, the Senate passed the bill, albeit with a few modifications that were compromised in Conference Committee. Finally, on December 17, 1914, President Wilson signed it into law, to become effective March 1, 1915. At last the United States had redeemed its pledge to other nations that it would enact a stringent law, as it had urged every other nation to do.
The significance of the Harrison Act to strategists like Dr. Wright, though, was more than just the satisfaction of redeeming pledges made to questioning representatives of other nations. For him, the Harrison Act was the implementation of the Hague Convention of 1912, which called upon signatories to enact domestic legislation controlling narcotics supplies and distribution. Understood as the fulfillment of treaty obligations, the Harrison Act would have the authority to usurp the states' police powers, for the Constitution in Article Six gives treaties concluded by the United States supremacy over the laws of states. This would resolve the problem of states' rights interfering with the ability of a national law to require a uniform compliance with strict narcotics control .33
Unfortunately, the Supreme Court at first did not give a very strict interpretation to the Harrison Act. In the first Jin Fuey Moy case (1916), the Court declared by a six-to-two majority that the Harrison Act could not be understood as having been required by the Hague Convention and that physicians could prescribe as they saw fit, even to simple addicts. 34 This decision was a stunning blow to federal enforcement, which, from the first day of the act's implementation, was directed at pharmacists and physicians who sold prescriptions or treated addicts without any intent to cure them.
World War 1, arriving at almost the same time as the Harrison Act, profoundly affected American attitudes, creating an intense desire to purify the nation as it girded itself to fight for democracy against the barbarism of the Kaiser. The fall of Russia and the spread of Bolshevism intensified fears of contagion and the desire to be sure that the United States remained pure and strong. Prohibition took giant strides during World War 1. The Prohibition Amendment in an early form nearly passed the House in December 1914, a week after the passage of the Harrison Act. In 1916 it did pass, and by January 1919 Prohibition had become part of the Constitution as the Eighteenth Amendment. Earlier, Congress had passed wartime prohibition, which was intended to save grain for the war effort as well as to promote efficiency in war production plants. Similarly, a battle was being fought to overturn the Jin Fuey Moy decision, which had weakened the government's intention for the Harrison Act. A Treasury Department committee reported that the number of addicts in the nation was over a million." These exaggerated figures, as well as a fear about returning veterans having become addicted on the battlefield and the specter of alcohol prohibition, which might drive alcoholics to morphine and cocaine, led to a new attempt to put teeth into the Harrison Act. This time the government was successful.
In March 1919, two months after the ratification of the Eighteenth Amendment (which would go into effect a year later), the Supreme Court ingeniously decided, five to four, that to call a prescription for narcotics intended to supply a "mere" addict with maintenance doses was an error, for such a script could not be considered a true prescription given in the proper conduct of medical practice. Since it was not a prescription, the issuing physician had conveyed narcotics without the required tax; he had therefore violated the Harrison Act and could be arrested. The four dissenting justices were the conservatives, who argued that this was an invasion of states' police powers, while the majority, including Holmes and Brandeis, felt that more power had to be given the government if it was to carry out its duty to protect the public from such an insidious evil .36 At last, the intent of the reformers had been achieved: Simple maintenance was outlawed, and the federal government could take action nationwide to arrest and convict health professionals who practiced it. Narcotics now had a no-maintenance policy, which a few months later would also be the policy for alcohol. Enforcement of both prohibitions would be the responsibility of a unit in the Bureau of Internal Revenue, reflecting the similarity of the two conceptions.
Enforcement During the 1920s
Several additional laws completed the early legislative structure of American control of opium and cocaine. Some were minor, such as a stipulation that no finished products such as heroin or morphine could be imported into the United States.37 The law stated that only coca leaves and crude opium could be imported and that the finished products, cocaine, morphine, heroin, codeine, etc., were to be manufactured in American pharmaceutical factories, which were given a monopoly to produce these substances. This may have made up for revenues lost, as the amounts sold legally in the United States fell after the Harrison Act. Other laws dealt with transshipment of drugs 38 across the United States for foreign markets.
Perhaps the most important addition to the Harrison Act's control of opiates and cocaine came in 1924, when the United States banned the importation of opium to be used for the manufacture of heroin.39 The observance of federal-state boundaries is evident in this law, for it does not ban the manufacture of heroin altogether but only the importation of crude opium for that purpose. Just that much seemed to be within the power of the federal government. Also, this did not require the seizure of heroin legally available in the United States for cough medicines (the original claim for heroin's value) or for certain other purposes, chiefly pain control or "twilight sleep" during child birth.
Heroin had been made available commercially by the Bayer Company of Germany in 1898 as a superior cough suppressant.40 The Bayer Company believed that the addition of acetyl groups to the basic molecule would make morphine more palatable, and this product, diacetylmorphine, the company named Heroin, a trademark that was protected until Germany lost such protections as a result of losing the First World War. Similarly, by adding an acetyl group to salicylic acid to make it less irritating to the stomach when taken for joint pains, the Bayer Company launched another successful venture. In 1899 the company named sodium acetyl salicylic acid Aspirin, which similarly was protected by trademark until World War 1. Few pharmaceutical firms can take credit for naming and distributing two drugs that remain among the most popular in Western society even after nearly a hundred years.
Heroin essentially had been unrestricted in the United States prior to the Harrison Act, and by 1912 in New York City it had replaced morphine as the drug of recreational choice among youthful males, according to the records of Bellevue Hospital. The addictive nature of heroin had been recognized rather quickly, for the AMA issued a warning in 1902. Heroin was popular because it could be inhaled by sniffing, like cocaine, as well as injected by needle. When injected into the bloodstream, heroin crossed the blood-brain barrier more quickly than morphine and therefore gave a more intense, but briefer, "high." During the years of intense concern over social control, which began with the First World War, heroin became linked with male gang violence and the commission of crimes. Some believed that heroin stimulated the user to commit crimes or at least provided the courage to pull off a bank robbery or mugging. In the early 1920s most of the crime in New York City was blamed on drug use, chiefly the opiates, including heroin.41
The preference for heroin over morphine by recreational users, and the belief that other opiates could fulfill heroin's role as a painkiller and cough suppressant, led to a move to ban heroin for medical purposes. The heroin problem also contributed to American fear of foreign nations after World War 1, for the drug was being manufactured in other countries and then smuggled into the United States. The Swiss drug industries, for example, produced large amounts of heroin, which found its way into this country. Heroin's image as a foreign product popular with feared domestic groups helped support an isolationist stance, illustrated by the American refusal to join or even recognize the League of Nations. Influential congressmen, such as Stephen G. Porter, Republican chairman of the House Committee on Foreign Relations, urged that all heroin production in the United States be stopped. As an example he would try to get other nations 42 to follow at the Geneva Opium Conferences of 1924 and 1925.
The United States did enact the legislation sought by Congressman Porter, but it failed to achieve its goals at the meetings in Geneva. In fact, in disgust at the refusal of other nations to agree to curb production of poppies and coca bushes, the ultimate source of heroin 43 and cocaine, the United States walked out of the conference. The United States, which had founded the world antinarcotic movement in Shanghai and The Hague, now saw it taken over by the League of Nations (as the Versailles treaty had mandated) and controlled by the very nations the United States sought to shame or force into a narcotics policy that the United States viewed as responsible. American participation in the worldwide effort then fell to a low point until the 1930s, when participation was resumed in international meetings. By the outbreak of World War II, the United States was again achieving significant participation in international antidrug activities.
AMERICAN DOMESTIC CONTROL TO THE MARIJUANA TAX ACT OF 1937
The use of cocaine, which had been in "soft" drinks like Coca-Cola until 1903 and was available easily to sniff as a treatment for sinusitis or hay fever, fell precipitously after reaching a peak somewhere around 1905. By the 1930s cocaine use had receded, and during the 1950s physicians and narcotics agents alike described cocaine use as a problem that once was serious in the United States but now was practically absent. Several reasons for its reduced use can be suggested. The drug had been introduced as a wonder substance-Freud had called it the first medicine that worked as an antidepressant. The Parke-Davis Company manufactured it after 1885 in many forms for drinking, smoking, inhaling, or rubbing on the skin. Within about a decade, warnings surfaced. Consumption peaked about twenty years after its initial distribution, and around the same time the accounts of its effect on the lives of its users and its popularly believed-although questionable-special link with southern blacks created in the public's mind an image so fearful that cocaine's effects became the extreme against which other drugs would be compared. Cocaine's association with violence, paranoia, and collapsed careers made laws against it by 1910 a popular matter. The first strict antinarcotic law in New York State was passed in 1913 and was directed at cocaine. Al Smith, later to be an anti-Prohibition candidate for president and critic of Prohibition in his state while he was governor, drew the strict anticocaine measure in his early years as a state assemblyman.44 The combination of strict laws and intense public support of control measures brought on a reduction in consumption, which, at the peak of its popularity, must have seemed most unlikely if not impossible.
The effect of the Harrison Act, its court interpretations, and supplementary legislation also appear to have reduced greatly the number of opiate addicts. The medical and pharmacy professions were denied an easy way of providing drugs. Although it is clear that only a fraction of either profession was liberal in their provision, this nevertheless had been enough to maintain a large number of users. It had been argued recently that the recreational users began to stand out more prominently, as the medically addicted and more sedate group declined in numbers, and that the relatively small number of addicts in the United States, about 50,000 in 1940, would have had an "underworld" or unsavory character even without the Harrison 45 Act's criminalization of drug use. This point of view contrasts sharply with the argument that the Harrison Act changed citizens who were normal except for their addiction into criminals who had 46 to violate the law to obtain their daily supply of opiates. Whatever the reason, the number of those addicted fell from about a quarter million around 1900 to much less than half that number by World War II. The war effectively reduced supplies of narcotics to the United States, and in 1945 the United States probably had its lowest number of opiate addicts since the mid-nineteenth century. The rise of addiction after World War 11 may have built on the core of addicts left in the nation, but the dynamics of the addiction epidemic that began in the 1960s appear in certain respects to have had a different character.
NARCOTIC CLINICS, 1913-1925
In order to close the story of the decline in addiction after 1900, it is necessary to consider the legendary narcotic clinics that, like the Philippine opium dispensaries, were intended to deal with addicts who no longer could receive opiate or cocaine supplies from local physicians .47 The first in the United States was opened in 1912 by Charles Terry, the public health officer of Jacksonville, Florida, where he provided both opiates and cocaine to men and women, blacks and whites. Dr. Terry went on to become a student of the opium problem in the United States and compiled a classic book of reports, excerpts from articles, and statistical information in The Opium Problem, published in 1928 and co-authored by Mildred Pellens.
Other clinics followed, particularly after the Treasury Department, in enforcement of the Harrison Act, prosecuted or threatened with prosecution health professionals who supplied addicts indefinitely. A series of clinics in New England were established at the suggestion of officials of the Internal Revenue Bureau. In New York State, the crackdown on druggists and physicians emanated from state law, and clinics were established in upper New York State through state planning and authorization. Registration of addicts was permitted so that physicians would restrict maintenance to those already addicted.
In New York City, the Health Department did not wish to provide opiates, morphine, and heroin on an indefinite basis but did open a clinic at the city Health Department headquarters. This clinic provided heroin, but only as an inducement to registration and eventual detoxification and rehabilitation. About 7,500 addicts registered, received their drug of choice in dosages gradually decreased until uncomfortably small, usually three to eight grains of morphine daily, and were offered curative treatment. Most declined to be cured. Those who did receive treatment, at North Brother Island, seemed both unappreciative and very liable-the estimate was 95 percent - to return to narcotics available on the street or from a physician or druggist.
The Treasury Department, armed with fresh Supreme Court decisions of March 1919, started to close down the clinics, along with prosecuting the dispensing physicians and druggists. One argument was that the availability of easy maintenance inhibited cures and also that giving legal permission for maintenance clinics undercut the Treasury Department's position when it brought action against a professional for reckless provision of drugs. From a legal point of view, the "reckless" provider was obeying the tax laws, as was the clinic, unless the federal government wanted to get into the question of medical competence, which was a state, not a federal, concern.
Gradually the clinics were closed, the last one in 1925 in Knoxville, Tennessee. Some had been operated poorly, others quite responsibly with community support. Yet, because of the intricacies of the tax powers under which the federal law operated, all were closed, even if unfair harassment was necessary to discourage the operation. The number of registrants was not large, about 3,000 if we exclude the New York City clinic, which was not intended for maintenance but for bait to get addicts into detoxification. The number of addicts registered under the New York State law, which provided for maintenance not only in clinics but also from private physicians and pharmacists, eventually totaled about 13,000 in 1920. It can be assumed, therefore, that the clinics were not a major element in the maintenance of addiction in the United States. One side note: The 13,000 addicted registrants in New York State in 1920 add up to the largest number of legally supplied addicts recorded in any Western country this century, a number not approached yet by Britain under the socalled "British System." Although the "American System" preceded and surpassed in size any scheme attempted then or subsequently in Britain, it was in fact the large number of addicts in America that made maintenance so unwieldy and unpopular.
The demise of the clinics left drug peddlers and individual members of the health professions as the major targets of the federal government. Generally, the physicians did not wish to treat addicts, nor did they have any sympathy with addicts. Those physicians who, for whatever reason, did continue to treat addicts with maintenance doses were threatened and arrested, unless the maintenance had been approved by the local narcotic agent. Some maintenance was permitted, but only on a case-by-case evaluation. From reports prepared by agents upon investigating narcotic clinics, it appears that an acceptable life-style was a requirement for permission to be maintained.48
A theory had been advocated, mostly among maintaining physicians in New York City, that longstanding addiction changed the body's physiology in such a way that opiates were necessary for the patient to remain normal.49 Too little opiate and the patient would experience withdrawal, too much and the patient would be "high," but just the right amount would allow normal feelings and behavior.
This, of course, is close to the argument made in the 1950s by Drs. Dole and Nyswander to justify methadone maintenance. After a series of scientific studies shortly after World War 1, the government concluded otherwise .50 Those physicians who insisted on maintaining patients without approval from a narcotics agent ran a serious risk of arrest and, if convicted, loss of a medical license and time in a federal penitentiary. In spite of the danger, of course, some physicians supplied narcotics without restraint or with very poor judgment, but evidence shows that other, responsible physicians were entrapped without good reason in order to boost the number of an agent's arrests and thereby bolster his chances for promotion.51 An aura of fear, therefore, accompanied a physician's decision to give an opiate to a patient, especially a new patient. On the other hand, the casualness with which physicians once handed out morphine or some other opiate was reduced considerably.
Along with the rejection of maintenance, physicians unfortunately had no effective medical cure available for addiction. Several had been promoted in many forms in the nineteenth and early twentieth century, but each had been found to have no scientific merit .52 The problem devolved into a decision of whether to stop opiates abruptly and thereby cause the patient to go directly into full Withdrawalthe so-called "cold turkey" approach-or gradually to reduce the opiate over a few days or a few weeks. Because the addicted person frequently has a threshold of average daily consumption below which the user becomes acutely uncomfortable, and because a yearning for heroin or morphine often persists for months or years after the beginning of withdrawal, the decision to detoxify abruptly or gradually usually was a difficult path for the patient. Nevertheless, detoxification was the preferred route for legal reasons. Two ancient warnings about detoxification, that the patient would die in withdrawal, or that a supply cutoff would precipitate a rash of suicides, did not materialize.
During the 1920s and 1930s the number of addicts diminished in the United States. Grossly exaggerated estimates came from antidrug entrepreneurs like Captain Richmond Pearson Hobson, who had been a Prohibition advocate before unleashing his energies against heroin and later marijuana as the head of several national and international voluntary groups." Captain Hobson attacked heroin in a most melodramatic manner, claiming there were 4 million addicts in the United States and comparing them all to lepers. In spite of Hobson, the concern over opiate addicts and cocaine users declined during the two decades after World War I.
MARIJUANA TAX ACT OF 1937
With the battle against opiate addiction apparently at a more stable, less alarming level in the 1930s and the use of cocaine having declined dramatically, a new dangerous drug appeared on the American horizon: marijuana. Marijuana smoking arrived in the United States with Mexican farm workers who had crossed the border, mostly to labor in agricultural fields in the Southwest and in sugar beet fields as far north as Montana and Michigan. During the prosperous 1920s, about half-a-million farm workers came to the United States, but as the Depression's widespread unemployment laid an increasingly heavy burden on the country's citizens, the Mexicans became an unwelcome group, encouraged in all ways to return to Mexico. Entwined with the troubles they were said to cause local citizens was the Mexicans' custom of growing marijuana for their own use. Hence, marijuana was linked to violence, dissolute living, and Mexican aliens.53
The greatest fear of marijuana in the United States lay in the West and Southwest. The government was importuned to take action, but the recent experience with alcohol prohibition (which had ended in 1933) made the Federal Bureau of Narcotics (FBN) and its head, Harry J. Anslinger, formerly of the Prohibition Bureau, hesitant to get involved in a drug that grew domestically and prolifically. Cocaine and heroin were both foreign imports and therefore, at least theoretically, could be regulated more easily, but marijuana appeared to be almost impossible to curb, let alone eradicate. The FBN tried to address this drug by including it in a recommended uniform state narcotic law that would leave to localities the question of prosecution and allocation of enforcement resources. Then a curious law intended to reduce the number of machine guns provided the federal government with a mechanism to attack marijuana nationally and at the federal level.
The Firearms Act of 1934 decreed that a machine gun could not be transferred in any way without the payment of a transfer tax (from which law enforcement personnel were exempted). As odd as this mechanism may sound, the law was upheld by the Supreme Court in 1937 as a legitimate use of the power of taxation for a moral objective. Within weeks of this decision, the Treasury Department, which housed the FBN, appeared before Congress asking for a transfer tax for marijuana. Without a stamp permit and the proper tax stamps, marijuana could not be sold, bartered, or given away. Congress quickly approved the bill, and President Franklin Roosevelt signed it into law later in 1937. Unfortunately for the enforcement of this law, the FBN did not receive any more money or agents. Therefore, the FBN relied on obnoxious descriptions of marijuana to do the job. The substance was described to the public as a danger at least equal to cocaine or morphine, and the penalties for its illegal use or possession were severe. Because use of marijuana does not seem to have been great in the 1930s, the law's extraordinary severity did not concern the general public until the 1960s, when thousands of users were arrested as marijuana's popularity burgeoned. Furthermore, the contrast between the effects of marijuana observed in the 1960s and the longstanding claims of the FBN regarding marijuana led to a problem concerning the credibility of official statements, which still affects popular perceptions.
WORLD WAR II TO THE PRESENT
The Second World War ended with relatively few opiate addicts and very little use of cocaine or marijuana in the United States. The only closely controlled drug rising in use was alcohol, consumption of which had increased in per capita rates since the repeal of Prohibition. During all this period, sleeping pills and other barbiturates were prescribed widely but did not appear to be a similar problem. The same holds true for the amphetamines, which had been made available in the 1930s and continued to be manufactured and prescribed without restriction.
Treatment of hard-core addicts did take place at the two federal narcotics hospitals in Lexington, Kentucky, and Fort Worth, Texas. Each was, in fact, a prison in which addicts were treated and forced to detoxify, but the patients/prisoners frequently resumed their drug habits when they returned to their previous environments. Around 1950 a younger age group began to be admitted for heroin addiction, an abuse that reached a very high level in 1970 and remains high today. This threat elicited two responses. First, the federal government enacted more severe laws that levied mandatory sentences for conviction of dealing in narcotics. The laws, enacted in 1951 and 1956, are the peak of legal penalties against narcotics, including marijuana, in the United States.55
The second response reflected the domestic and international tensions of the time. The heroin menace-and it should be reemphasized that cocaine and marijuana were not seen as anything but potentially major problems in the 1950s-was ascribed to the infiltration of the drug trade by Chinese Communists who had taken over the China mainland in 1949. The Red Chinese purportedly sent heroin to the United States to undermine our democracy and at the 56 same time obtain specie, for which they had a desperate need. By the 1970s, however, the United States was defending the People's Republic of China against the same charge, now levied by Soviet newspapers.57 Such are the vagaries of international relations and the domestic drug problem.
Heroin addicts in the 1950s mainly were young males concentrated in black and Hispanic urban ghettos. These addicts concerned the federal government, as well as reform-minded lawyers, academics, and physicians. The latter groups found the harsh penalties and the loathing attitude toward the addicts to be inhumane. Leaders of this countermovement included sociologist Professor Alfred Lindesmith and the attorney Rufus King. They believed a more relaxed approach would be much more successful, as well as more kind. Rather than depriving addicts of heroin, heroin should be provided them. Rather than jailing addicts, they should be hospitalized, if necessary, or just left alone.58
This alternative view competed with the more hard-line style of law enforcement exemplified by Commissioner Anslinger. After forty or more years, treating addicts medically, which had been popular before World War I and had then been found inadequate to the task of reducing addiction, became part of public policy in the 1960s. Methadone, a synthetic opiate developed in Germany in World War 11, was used by Dole and Nyswander to provide maintenance under theories similar to those which had justified maintenance prior to the restrictive Supreme Court decisions in 1919. This marked a major break in American narcotic control policies; maintenance again was legal, although not with heroin or morphine.
Along with the possibility of maintenance, other milder forms of control were invoked by the federal government. Civil commitment to a narcotic treatment center,, thought more humane than prison sentences, became possible legally in 1966, although in subsequent years this did not prove a practical method either to reduce addiction or to cure addicts in any marked number.59
Also in the 1960s, an enthusiasm for drug consumption of all kinds, polydrug abuse, replaced the habitual use of one or two drugs, which had been more common in the past. Marijuana became very popular with young people, and then gradually its popularity expanded in both directions to even younger and to older ages. Psychedelic drugs, such as LSD, appeared on the scene, along with injectable methedrine or "speed." Drugs came to symbolize opposition to the government and older mores. The turmoil and dissension caused by the Vietnam War added to the sense of alienation many young people already felt from the older generation, which frowned on drug use other than alcohol and tobacco. In addition to cultural alienation and the rapid increase in multidrug use, the drug problem in the 1960s was intensified by the extraordinarily large number of young people in the ages most likely to experiment with drugs; the post-World War 11 "baby boom" generation had reached the teenage years.
By 1970, marijuana was used commonly, and research was showing that it did not have the awful effects ascribed to it from the 1930s onward. Various groups and individuals initiated movements to legalize the substance, perhaps along the lines of tobacco. The drug situation was perceived by the public and the federal government to be so bad and yet so difficult to control that this seemed a good time to reevaluate the nation's entire policy. A National Commission on Marijuana and Drug Abuse was established in 1971.
In general, the members of the commission reflected traditional views on the subject of drug control, and therefore it was with even greater impact that the commission recommended in its first report, "Marijuana: A Signal of Misunderstanding," that the substance be "decriminalized." By decriminalization was not meant legalization but a step short of that position: Marijuana possession for individual use no longer would be a crime, but its sale and distribution would be against the law. The purpose of control at this stage would be to relieve law enforcement agencies of the nuisance of arresting individual users and thereby allow more resources to be concentrated on investigating large-scale crime and more dangerous drugs.6o The notion of "decriminalization" proved difficult for all to understand. Some foreign nations considered it to mean legalization. President Nixon refused to receive the report in public or to comment on it except to affirm that marijuana was not going to be legalized if he had anything to say about it.
The second and final report, published in 1973, dealt with drugs more broadly.60 It attempted to draw attention to the actual, measurable damage done by drugs, reflected in hospital admissions and drug-related deaths, as opposed to the myths that had evolved around many of them. Heroin, for example, was misperceived as causing more deaths annually than barbiturates. This approach intended to make more rational the discussion over drug policy, but it also laid the groundwork for the inclusion of cigarettes and alcohol in the antidrug crusade. It de-emphasized, however, the effects a drug such as cocaine has on judgment and efficiency, the less quantifiable but still real aspects of drug use.
The enforcement of laws against individual possession or use of marijuana has fallen in the United States to a very low level. Moreover, dealers in relatively small amounts are reportedly not prosecuted either, because the largest dealers and smugglers, who are involved with tons, not ounces or pounds of marijuana, require all the time of officials. There has been a de facto decriminalization throughout large parts of the country, even if laws against individual use remain on the books. Possession of marijuana in some states is a small-scale misdemeanor, and the penalty is a ticket, like a parking violation. Yet, the frequency of marijuana use by high school seniors has been dropping since 1978, and this reduction, coupled with a more conservative national mood, has slowed further moves toward formal federal decriminalization or more liberality in the drug laws.
The rise in cocaine's availability and popularity, for the second time this century, has further complicated the control of drugs in the United States. The fact that first millions should use marijuana, then millions more take cocaine raises questions about the ability of local and national governments to control narcotics. The corruption that follows the drug traffic and the restraints on resources that may be allocated to drug control combine to leave a sense of frustration with enforcement policy. What will be the result of these trends? It all remains uncertain. We appear to be in an era of widespread drug use that would seem to make reasonable the revocation of antidrug statutes. We should recall, however, that a similar condition prevailed around 1900, shortly before an onslaught against drug use led to a substantial reduction in the use of opiates, heroin, cocaine, and alcohol. That such a national response could occur must make us pause before offering predictions for the future.
1. Rudolf Schmitz, "Friedrich Wilhelm Serturner and the Discovery of Morphine," Pharmacy in History 27 (1985): 61-74.
2. 31 and 32 Vict. ch. 121, 1868: Act to Regulate the Sale of Poisons and Alter and Amend the Pharmacy Act 1852 (1868 Pharmacy Act).
3. Virginia Berridge and Griffith Edwards, Opium and the People: Opiate Use in Nineteenth-Century England (New York: St. Martin's, 1981), pp. 147-49, 227, 254.
4. Ibid., pp. 113-31.
5. James G. Burrow, AMA: Voice of American Medicine (Baltimore: Johns Hopkins Press, 1963), pp. 51-52, 62ff.
6. Glenn Sonnedecker, Krerners and Urdang's History of Pharmacy, 4th ed. (Philadelphia: Lippincott, 1976), pp. 198-212.
7. R. H. Shryock, Medical Licensing in America, 1650-1965 (Baltimore: Johns Hopkins Press, 1967), p. 32ff.
8. Virginia Berridge, "Fenland Opium Eating in the Nineteenth Century," British Journal of Addiction 72 (1977): 275-84.
10. Ibid., p. 3
11. Berridge and Edwards, Opium and the People, p. 14517f.
12. Musto, American Disease, p. 5; David T. Courtwright, Dark Paradise: Opiate Addiction in America before 1940 (Cambridge: Harvard University Press, 1982), chap. 1, "The Extent of Opiate Addiction," pp. 9-34. Opiate addiction is the regular use of opiates to prevent painful and uncomfortable bodily and psychic symptoms that would occur if the drug's use were abruptly stopped. Estimates of the number of addicts in the United States have often been susceptible to ideological and political influences. After carefully considering contemporary surveys, importation statistics, and other estimates, and subjecting his findings to modern statistical analysis, Professor Courtwright concluded that the highest rate of addiction in the United States occurred in the 1890s at the maximum rate of 4.59 per 1,000. Today that rate would result in 1. I million addicts, about twice the current official estimate.
13. Musto, American Disease, p. 236.
14. Wilder Penfield, "Halsted of Johns Hopkins: The Man and His Problem as Described in the Secret Records of William 0sler," Journal of the American Medical Association 210 (1969): 2214-18.
15. James Harvey Young, The Toadstool Millionaires: A Social History of Patent Medicines before Federal Regulation, (Princeton, N.J.: PrincetonUniversity Press,1961), p. 21 1 ff.
16. Public Law No. 384, 59th Congress, Session 1, 30 June 1906. Section 8 names the drugs that need to be listed on the label.
17. J. P. Street, "The Patent Medicine Situation," American Journal of Public Health 7 (1917):1037-42.
19. Martin 1. Wilbert and Murray Gait Metter, Digest of Laws and Regulations in Force in the United States Relating to the Possession, Use, Sale and Manufacture of Poisons and Hahit-Forming Drugs, Public Health Bulletin no. 56, Nov. 1912 (Washington, D.C.: Government Printing Office, 1912).
20. Musto, American Disease, p. 25ff.
21. Report of the Committee Appointed by the Philippine Commission to Investigate the Use of Opium and the Traffic Therein .... Bureau of Insular Affairs, War Department, 1905.
22. Musto, American Disease, pp. 261-62.
23. Arnold H. Taylor, American Diplomacy and the Narcotics Traffic, 1900-1939 (Durham, N.C.: Duke University Press, 1969), pp. 47-81.
24. Ibid., p. 82ff.
25. Berridge and Edwards, Opium and the People, p. 268.
26. United States 60th Congress, Public Law No. 221. An Act to prohibit the importation and use of opium for other than medicinal purposes. Approved 9 February 1909.
27. Musto, American Disease, pp. 31-37, 40-45, 61-62.
28. Ibid., pp. 31, 198, 202.
29. Ibid., p. 41.
30. Ibid., pp. 40-48.
31. Ibid., pp. 54-68.
32. Hamilton Wright, "Report on the International Opium Question as Seen within the United States and Its Possessions," in Opium Problem: Message from the President of the United States, Senate Document no. 377, 61st Congress, 3rd Session, 21 February 1910, p. 49.
33. Hamilton Wright to Charles Evans Hughes, 28 June 1916, in Papers of Dr. Hamilton Wright, U.S. National Archives, Record Group 43, entry 36.
34. U.S. v. Jin Fuey Moy, 241 U.S. 394 (1916).
35. Special Committee of Investigation, Appointed March 25, 1918, by the Secretary of the Treasury: Traffic in Narcotic Drugs (Washington, D.C.: Government Printing Office, 1919).
36. Webb et al. v. U.S., 249 U.S. 96 (1919); U.S. v. Doremus, 249 U.S. 86 (1919).
37. 67th Congress, Public Law No. 227. To amend the act of February 9, 1909, as amended, to prohibit the importation and use of opium for other than medicinal purposes. Approved 26 May 1922.
38. 68th Congress, Public Law No. 274. Prohibiting the importation of crude opium for the purposes of manufacturing heroin. Approved 7 June 1924, Section 2.
39. Ibid., Section 1.
40. David F. Musto, "Early History of Heroin in the United States," in P. G. Bourne, ed., Addiction (New York: Academic Press, 1974), pp. 175-85.
41. Gerhard Kuhne, "Statement of Gerhard Kuhne, Head of the Identification Bureau, New York City Department of Correction," in Conference on Narcotic Education: Hearings before the Committee on Education of the House of Representatives, December 16, 1925 (Washington, D.C.: Government Printing Office, 1926), p. 175.
42. Prohibiting the Importation of Opium for the Manufacture of Heroin: Hearings on HR 7079, House of Representatives, Committee on Ways and Means, 68th Congress, Ist Session, 3 April 1924 (Washington, D.C.: Government Printing Office, 1924), p. 41ff.
43. Taylor, American Diplomacy and Narcotics Traffic, p. 2OOff.
44. Musto, American Disease, pp. 6-8; Laws of New York, 1913, ch. 470, pp. 9984-91, approved 9 May 1913.
45. Courtwright, Dark Paradise, pp. 146-47.
46. Alfred R. Lindesmith, The Addict and the Law (New York: Vintage Books, 1965), pp. 3-34.
47. Musto, American Disease, pp. 151-81.
48, Ibid., p. 167ff.
49. Ernest Bishop, The Narcotic Drug Problem (New York: Macmillan, 1920); see also, David F. Musto, "Social and Political Influences on Addiction Research," in Seymour Fisher and Alfred M. Freedman, eds., Opiate Addiction: Origins and Treatment (Washington, D.C.: Winston, 1973), pp. 93-98.
50. David F. Musto, "The American Antinarcotic Movement: Clinical Research and Public Policy," Clinical Research 19 (1970): 601-5.
51. H. T. Nugent, Field Supervisor of the Fl3N, Fourth Annual Conference of Pharmaceutical Law Enforcement Officials, Toronto, Canada, 25 August 1932, Stenographic typescript of Proceedings, Archives of the American Pharmaceutical Association, Washington, D.C., box 31, pp. 86-87.
52. Musto, American Disease, pp. 69-90.
53. Ibid., pp. 190-94.
54. David F. Musto, "Marijuana Tax Act of 1937," Archives of General Psychiatry 26 (1972):101-8.
58. Lindesmith, Addict and the Law; Rufus King, The Drug Hang-up: America's Fifty Year Folly (New York: Norton, 1972).
59. Narcotic Addict Rehabilitation Act of 1966, Public Law 89-273, 89th Congress, approved 8 November 1966.
55. 82nd Congress, Public Law No. 255, approved 2 November 195 1; 84th Congress, Public Law No. 728, approved 18 July 1956.
56. H. J. Anslinger and W. F. Tomkins, Traffic in Narcotics (New York: Funk and Wagnalls, 1953), pp. 69-116.
57. For example, "Poisoners: How the Maoists Smuggle Opium," Literaturnaya gazeta, 19 March 1969, translated and reprinted in Current Digest of Soviet Press (Ann Arbor, Mich.: Joint Committee on Slavic Studies, 1969), vol. 21, p. 7.
60. Marijuana: A Signal of Misunderstanding: First Report of the National Commission on Marijuana and Drug Abuse (Washington, D.C.: Government Printing Office, 1972), p. 150ff.
61. Drug Use in America: Problem in Perspective, Second Report of the National Commission on Marijuana and Drug Abuse
(Washington, D.C.: Government Printing Office, 1973).