Schaffer Library of Drug Policy

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

by Charles Whitebread, Professor of Law, USC Law School

A Speech to the California Judges Association 1995 annual conference

Links to Related Documents

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

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

The Hearings of the Marihuana Tax Act and related documents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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