Back to the Future: How the Legalization of Marijuana Echoes the Prohibition Era
| Publication year | 2015 |
| Pages | 87 |
Columns
Historical Perspectives
Back to the Future: How the Legalization of Marijuana Echoes the Prohibition Era
By Herbert E. Tucker
Much has been written about the similarities between the currently evolving cannabis legalization landscape and the Alcohol Prohibition Era of the 1920s and 1930s (Prohibition). Al Capone has been likened to a Mexican drug lord, and the federal government's ineffective efforts at curbing consumption during each time have been highlighted.[1] This article compares and contrasts the two prohibitions from a legal perspective and explores how governments and activists at both the state and federal levels catalyzed regulatory changes throughout each period.
Overview
Prior to the 20th century, the U.S. government was not involved in the regulation of intoxicating substances.[2] The federal restriction of narcotics began in 1914 with the Harrison Narcotics Tax Act. Alcohol was added as a targeted substance with effectuation of the 18th Amendment in 1920. These federal actions represented an unprecedented usurpation of states' traditional police power regarding matters of personal behavior.[3] As with the events of Prohibition, the currently unfolding process of the state-by-state legalization of marijuana speaks to the heart of federalism—the multi-tiered system of government that we enjoy in the United States. As states experiment with various approaches to the changing cannabis world, the very roots of our Republic—"The Great Experiment" itself—are exposed, explored, and seen in action.
The current trend is a rather quick falling of dominoes as one state after another jumps into the process of legalization of cannabis. This ranges from hemp fiber legalization and regulation to legalization and regulation of recreational marijuana, and includes many variations of medical availability. Some states have chosen to convert criminal charges to civil infractions, a result commonly referred to as decriminalization. Of course some states may continue total prohibition of cannabis in all forms.
Genesis of Federal Regulation
Both the prohibition of alcohol and criminalization of cannabis were created through legislation promulgated in an atmosphere of hysteria rooted in fear and racial bias.
Propaganda
The events leading to the prohibition of alcohol in the 1920s and 1930s were fueled by rhetoric linking intoxication to sin and immorality.[4] The campaign was largely shaped as an effort to save white people from their own corrupt tendencies.[5] Many members of what became known as the "temperance movement" were former slavery abolitionists who viewed alcohol as another evil to be eradicated.[6]On the first official day of Prohibition, one prominent evangelist pronounced to a congregation of more than 10,000, "The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and corncribs. Men will walk upright now, women will smile, and the children will laugh. Hell will be forever for rent."[7]
In contrast, the early propaganda surrounding regulation of marijuana was distinctly racist, arguing that whites needed to be protected from minorities and minorities from themselves.[8] Horror stories spread about the "killer weed" turning blacks, Mexicans, and Chinese into murderous degenerates bent on seducing white women.[9] To this day, data suggests that marijuana laws are enforced in a racially biased manner in most places in the country.[10]
Implementation
The passage and subsequent ratification of the 18th Amendment, ushering in Prohibition, represented only the second time in American history that a Constitutional amendment limited the activities of citizens—the first being the 13th Amendment abolishing slavery—rather than those of government.[11] Many in the political opposition viewed it as a fundamental infringement of states' rights.[12] Nevertheless, the proposed amendment, known as the Sheppard Amendment, passed both houses of Congress in 1917 with the requisite two-thirds majority and, in just over one year, proceeded to be ratified by the necessary 36 out of 48 state legislatures.[13] The subsequent federal legislation enforcing the amendment, the Volstead Act, comprised 67 sections covering a broad range of issues.[14]
The regulation and criminalization of marijuana at the federal level followed a significantly more meandering path than that of alcohol. National anti-drug legislation, the Harrison Narcotics Tax Act, was first passed in 1914, but the law covered only opium, coca, and their derivatives.[15] The Marihuana Tax Act of 1937 was the federal government's first foray into regulating marijuana, imposing heavy taxes on producers and sellers.[16]By then, more than 30 states had banned non-medical use of marijuana.[17] Subsequent federal acts in the 1950s increased penalties for the sale or use of marijuana.[18] In 1970, the Comprehensive Drug Abuse Prevention and Control Act was passed and marijuana was categorized as a Schedule I narcotic, and remains so designated, on par with heroin.[19]
Impotence of Federal Regulation
In the 1920s, Prohibition created black markets for bootleggers, which permitted organized crime families to flourish. Similarly, the criminalization of cannabis created drug trade between the United States and Mexico, giving rise to the Mexican drug cartels. Organized crime and drug trafficking have been the backdrop for some of the most violent crimes in U.S. history.
Authority
The language of the 18th Amendment gave power to both the federal and state governments to enforce the ban on the production, sale, and transport of alcohol.[20] As originally proposed, the amendment would have given power to Congress only. However, following a previous legislative defeat, supporters added concurrent enforcement authority for states, to appease states' rights advocates.[21] Conversely, without a constitutional underpinning, the federal government's authority to regulate the production and consumption of marijuana has been judicially constructed.[22] Notwithstanding that authority, under the 10th Amendment, Congress lacks the ability to compel state governments to enact restrictions on marijuana or to enforce any federal laws.[23]
Enforcement
At the federal level, enforcement of alcohol prohibition was drastically underfunded; Congress failed to authorize any new U.S. attorney offices, judgeships, or federal prisons.[24] Further, efforts were stymied by the nature of the illicit alcohol industry; despite a few high-profile operations in major cities, most alcohol production and distribution was highly decentralized.[25] Implementation of enforcement varied widely from state to state, and by 1927, 30 of 48 states had no budget whatsoever allocated to enforcement.[26]At all levels of the criminal justice systems, there was general reluctance to enforce Prohibition.[27] One official lamented that in attempting to enact the Volstead Act, he had accomplished nothing but "raised the price of alcoholic beverages and reduced the quality."[28]
Federal enforcement of restrictions on marijuana has faced some similar problems. As with alcohol, production and distribution of marijuana has both some large enterprises (e.g., Mexican drug cartels) in addition to a wide network of amateur growers and suppliers.[29] Like the bootleggers from the Prohibition Era, barriers to entry are low for becoming a small-scale producer of marijuana.[30] Unlike the federal ban on alcohol, restrictions on marijuana have focused largely on the individual user of the substance. In 2011, there were more than 750,000 marijuana- related...
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