Schaffer Library of Drug Policy |
The Consumers Union Report on Licit and Illicit Drugsby Edward M. Brecher and the Editors of Consumer Reports Magazine, 1972
Chapter 6 Opium smoking is outlawed To summarize the data reviewed so far, opiates taken daily in large doses by addicts were not a social menace under nineteenth-century conditions, and were not perceived as a menace. Opium, morphine, and heroin could be legally purchased without a prescription, and there was little demand for opiate prohibition. But there was one exception to this general tolerance of the opiates. In 1875, the City of San Francisco adopted an ordinance prohibiting the smoking of opium in smoking-houses or "dens." 1 The roots of this ordinance were racist rather than health-oriented, and were concerned with what today is known as "life-style." Opium smoking was introduced into the United States by tens of thousands of Chinese men and boys imported during the l850s and 1880s to build the great Western railroads.* The Chinese laborers then drifted into San Francisco and other cities, and accepted employment of various kinds at low wages --- giving rise to waves of anti-Chinese hostility. Soon white men and even women were smoking opium side by side with the Chinese, a life-style which was widely disapproved. The San Francisco authorities, we are told learned upon investigation that "many women and young girls, as well as young men of respectable family, were being induced to visit the [Chinese] opium-smoking dens, where they were ruined morally and otherwise ** 4 The 1875 ordinance followed, "forbidding the practice under penalty of a heavy fine or imprisonment or both. Many arrests were made, and the punishment was prompt and thorough. 6
This first law, however, like so many subsequent anti-narcotics laws, failed to work despite the promptness and thoroughness of the punishment. When opium dens became illegal, "The vice was indulged in much less openly, but none the less extensively, for although the larger smoking-houses were closed, the small dens in Chinatown were well patronized, and the vice grew surely and steadily." 6 Indeed, the new law "seemed to add zest to their enjoyment." 7 A similar ordinance was passed in Virginia City, Nevada, the following year. 8 This also failed to accomplish its purpose; hence the State of Nevada passed a more stringent act a year or two later. 9 Other states and cities voted similar statutes soon after. When these laws failed as well, Congress took a hand. Before opium can be smoked, it must be specially prepared; and weak opium containing less than the usual amount of morphine is used in its preparation. In 1883, Congress raised the tariff on opium prepared for smoking from $6 to $10 a pound; 10 and in 1887 it prohibited altogether the importation of the kind of weak opium--- that containing less than 9 percent morphine--- used for preparing smoking opium. The 1887 law also prohibited the importation of opium by Chinese, and a law three years later limited the manufacture of smoking opium to American citizens. 11 The results of these steps were set forth in a letter dated January 12, 1888, from the Secretary of the Treasury of the United States to the Speaker of the House of Representatives. The effect, he wrote, had been "to stimulate smuggling, extensively practiced by systematic organizations [presumably the Chinese "tongs" or mutual benefit societies on the Pacific coast. Recently completed facilities for transcontinental transportation have enabled the opium smugglers to extend their illicit traffic to our Northern border. Although all possible efforts have been made by this Department to suppress the traffic, it is found practically impossible to do so." 12 The law was not changed, however; indeed, the tariff on smoking opium was further increased, from $10 to $12 per pound in 1890. Then, in 1897, it was reduced to $6 a pound "experience having at last taught that it could not bear a higher rate without begetting an extensive surreptitious manufacture or serious smuggling operations." Following the reduction in the tariff, "the amount that passed through the customs houses . . . progressively increased." 13 Throughout this period, states and cities continued to pass laws against opium smoking;* by 1914 there were twenty-seven such laws in effect.. Yet the amount of smoking opium legally imported continued to rise steadily, as shown in Table 2. 14
There was a lesson implicit in these import figures. During more than thirty years of city, state, and federal efforts to suppress opium smoking, the amount smoked per year increased sevenfold--- without taking account of smuggled supplies.
In 1909, the importation of smoking opium was prohibited altogether. l5 This law was successful in the sense that smoking opium imported through the customhouses fell to zero, but it did not solve the opium-smoking problem. Congress in January 1914 found it necessary to amend the 1909 law 16 and to pass an additional statute imposing a prohibitive tax ($300 per pound) on opium prepared for smoking within the United States. 17 In December 1914 Congress passed the Harrison Narcotic Act, with far broader provisions 18 (see Chapter 8). Yet as late as 1930, according to Federal Narcotics Commissioner Harry J. Anslinger and United States Attorney William F. Tompkins, "opium dens could be found in almost any American city." 19
One reason for the failure of these anti-opium-smoking laws, and of subsequent anti narcotics laws, appears obvious. They were aimed at private transactions between willing sellers and willing, usually eager, buyers. Thus there were no complainants. Other such laws include the Volstead Act, since repealed, which prohibited the sale of alcoholic beverages; the laws against fornication, homosexual acts, and other sexual acts between consenting individuals in private; the laws against gambling; and the drug laws generally. The phrase "crimes without victims" has been applied to such acts; they can more accurately be called "crimes without complainants." It is hard to cite a law aimed at crimes of this class which has had much effect in curbing the behavior aimed at. *
The mere fact that a law fails to achieve its goal fully is of course not a sufficient reason for repealing it; witness the laws against murder. The basic argument against laws creating crimes without complainants must rest on evidence that they not only fail but also, in the process of failing, do more harm than good. Such evidence exists with respect to the laws against opium smoking. For one effect of these laws was to convert opium smokers to more hazardous forms of opiate use. "Opium smoking is vastly less vicious than morphine-taking," wrote an American authority on opiates, Dr. Charles B. Towns, in 1912. 21 Dr. Marie Nyswander also commented on opium smoking, in 1956:
The reasons for the lesser harmfulness of opium smoking in moderation are not hard to find. The opium used, as noted above, is of a specially weak type containing less than 9 percent morphine. Only about 10 percent of the morphine in this weak opium enters the vapor, and only a portion of the morphine in the vapor enters the human bloodstream when inhaled. Since the opium is heated rather than burned, only smoke-free vapor is inhaled; there are no "tars" or other carcinogens to cause cancer. The so-called "opium smoker" is actually a vapor inhaler. At a very rough estimate, a smoker would have to smoke 300 or 400 grains of opium to get a dose equivalent to the intravenous injection ("mainlining-) of one grain of heroin. Even heavy opium smokers actually smoke less than this daily. * And the opium-smoking dose is necessarily spread over a considerable span of time rather than being absorbed into the bloodstream almost instantaneously, as in mainlining. Surely the nineteenth-century enemies of opium smoking did not and could not foresee that the new laws were starting this country down the dismal road from that relatively innocent "vice" to the intravenous injection of heroin--- the dominant form of illegal opiate use today; yet that was in fact the sequel. **
1. H. H. Kane, Opium Smoking in America and China (New York, 1882), cited in Terry and Pellens, p. 73. 2. Jonathan Spence, ''Opium Smoking in Ch'ing China," presented at the Conference on Local Control and Social Protest During the Ch'ing Period, Honolulu, 1971 (under the auspices of the American Council of Learned Societies and the University of California); unpublished. 3. British Columbia Study pp. 498-500. 4. Kane, in Terry and Pellens, p. 73. 5. Ibid. 7. Cited in Alfred R. Lindesmith, Opiate Addiction (Evanston, Ill.: Principia Press. 1947), p. 186. 8. Kane, in Terry and Pellens, p. 808. 10. Terry and Pellens, p. 747. 11. Ibid., p. 748. 12. Exec. Doc. No. 79, House of Representatives, 50th Cong., 1st Sess., C. S. Fairchild to Mr. Carlisle, Jan. 12, 1888, cited in Terry and Pellens, p. 747. 13. Terry and Pellens, pp. 747-748.
14. Lawrence Kolb and A. G. Du Mez, The Prevalence and Trend of Drug Addiction in the United States, and Factors lnfuencing It, Treasury Department, U.S. Public Health Service, Reprint No. 924 (Washington, D.C.: U.S. Government Printing Office, 1924), p. 14. 15. Outlook, 91 (February 6, 1909): 275; Public law No. 221, 60th Cong., approved February 9, 1909. 16. Public Law No. 46, 63rd Cong., approved January 17, 1914. 17. Public Law No. 47, 63rd Cong., approved January 17, 1914. 18. Public Law No. 233, 63rd Cong., approved December 17, 1914. 19. Harry J. Anslinger and William F. Tompkins, The Traffic in Narcotics (New York: Funk and Wagnalls, 1953), p. 54. 20. Baruch Spinoza, quoted by Joel Fort in Richard Blum and Associates, Utopiates, (New York: Atherton Press, 1968), p. 205. 21. Charles B. Towns, "The Peril of the Drug Habit," Century Magazine, 84 (1910 583. 22. Jerome H. Jaffe, in Goodman and Gilman, 3rd ed. (1965), p. 285. 23. Charles B. Towns, "The Peril of the Drug Habit," p. 583. 24. Lawrence Kolb, "Pleasure and Deterioration from Narcotic Addiction," Mental Hygiene, 9 (1925): 719-720.
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