A History of United States Cannabis Law.

AuthorPatton, David V.
  1. INTRODUCTION 2 II. EARLY HISTORY OF CANNABIS LAW 3 III. THE FIRST FEDERAL AND STATE MARIJUANA LAWS 6 A. Early Federal Legislation 6 B. 1914 El Paso, Texas City Ordinance Banning Sale and 6 Possession of Marijuana C. Harrison Narcotics Tax Act 6 D. Narcotic Drug Import and Export Act and the Federal 7 Narcotics Control Board IV. ALCOHOL PROHIBITION AND MARIJUANA PROHIBITION 8 V. 1920S TO 1940S 8 A. Uniform State Narcotics Drug Act and Anslinger's Army 8 B. Sonzinsky and the Marihuana Tax Act 10 C. LaGuardia Report 11 VI. 1950S: THE GATEWAY DRUG THEORY AND THE BOGGS ACT 12 VII. 1960S TO EARLY-1970S 13 VIII. REORGANIZATION OF THE FEDERAL DRUG ENFORCEMENT 14 BUREAUCRACY IX. HOW MARIJUANA BECAME A SCHEDULE I DRUG 15 X. CHANGING SOCIAL ATTITUDES TOWARDS MARIJUANA 18 A. Presidential Politics 18 B. Popular Culture 18 XI. STATE AND FEDERAL MARIJUANA LAWS FROM THE 19 1990S TO 2010S A. State Legalization of Medical and Recreational Cannabis 19 B. Conant v. Walters 20 C. Federal Cannabis Criminal Enforcement Policy 23 i. Ogden Memorandum 23 ii. First Cole Memorandum 24 iii. Second Cole Memorandum 24 iv. Sessions Memorandum 26 v. Sessions Memorandum Aftermath 27 vi. Attorney General Barr 29 XII. CONCLUSION 30 I. INTRODUCTION

    Perhaps the best way to understand early-Twenty-First Century state and federal cannabis law in the United States is to examine the relevant history. Justice Oliver Wendell Holmes, Jr.'s statement is apropos: "[A] page of history is worth a volume of logic." (1) This article begins by discussing the early history of cannabis and its uses. Next, this article examines the first state and federal marijuana laws. After a brief comparison of alcohol prohibition to cannabis prohibition, this article addresses cannabis laws from the 1920s to the early 1950s. Then, this article takes up the reorganization of the federal drug regulatory bureaucracy since its inception. Addressing the current era of cannabis laws and regulations, this article recounts how marijuana became a Schedule I drug. The discussion then turns to changing social attitudes towards cannabis as reflected in presidential politics and popular culture. Starting with the late-1990s, this article describes the development of state and federal cannabis laws and policies up to the present day.

    By definition, the term "present day" temporally fixes this article to late 2020. This is problematic because cannabis laws constantly change. It is entirely possible that this article will be rendered obsolete in the near future. For example, currently-pending, federal legislation could fundamentally change cannabis law and policy. (2) Indeed, on November 20, 2019, the U.S. House of Representatives Judiciary Committee passed the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act). (3) This legislation would, inter alia, remove cannabis from the federal Controlled Substances Act and allow the individual States to regulate the cannabis industry within their respective borders. (4) Thus, this article shall avoid attempting to predict the future. In any event, per Justice Holmes, the past is always relevant to the future.

    This article is based upon a February 2019 presentation delivered to The Center for Health Law and Policy at Cleveland State University, Cleveland-Marshall College of Law. The author is grateful to the law school for the opportunity to present this article.


    Cannabis has historically been known by several names, such as "hemp," "Indian hemp," "marywana," "maraguana," and "marihuana." (5) Official Jamaican government documents use the term "ganja." (6) "Marihuana," with an "H," is the traditional spelling in the United States, particularly in official, government documents. (7) "Marijuana," with a "J," is the popular, contemporary spelling. (8) The preferred term among pro-cannabis advocates is "cannabis" because the term "marihuana" is associated with early-Twentieth Century, anti-cannabis propaganda to brand the drug as a foreign, and therefore dangerous, substance. (9) "Cannabis" is the Latin form of the Greek word "[phrase omitted]"

    Researchers from the University of Vermont have recently concluded that cannabis originated in the Tibetan Plateau twenty-eight million years ago. (10) Hemp cultivation began in Western China in antiquity, and then spread to Central Asia, India, Asia Minor, and Africa. (11) Historically, hemp has had three primary uses: (i) Fiber for rope, twine, cloth, and textiles, (ii) seeds for oil and birdseed, and (iii) resin for medicine, religious rituals, and as an intoxicant. (12) Hemp was used medicinally in Ayurvedic medicine in India as early as the Fourth Century B.C.E. (13) By the Fourteenth Century, hemp cultivation began in Europe. (14)

    Carl Linnaeus first classified the genus Cannabis in 1753. (15) Within the Cannabis genus are the species C. sativa and C. indica. Some taxonomists recognize a third species: C. ruderalis. However, others classify C. ruderalis as a sub-species of C. sativa. (16) Hemp is a variant of C. sativa. Sub-varieties of cannabis are traditionally known as "strains." However, the term "cultivar" is enjoying increasing currency in the cannabis industry.

    The Spanish introduced hemp to the Western Hemisphere in modern-day Chile in 1545. (17) In the modern-day United States, hemp cultivation began in (i) 1611 in Jamestown, Virginia, (ii) 1632 in Massachusetts, (iii) 1775 in Kentucky, and (iv) 1835 in Missouri. (18) By the 1850s, hemp was grown in California, Illinois, Indiana, and Iowa, and Nebraska. (19) Hemp processing occurred throughout the Great Lakes region. (20) In the mid-1800s, cotton replaced hemp as a textile source. This caused hemp production to decline. However, hemp continued to grow wildly throughout the United States. (21)

    In 1839, Irish physician William B. O'Shaughnessy, M.D., published a paper entitled On the Preparations of the Indian Hemp, or Gunjah (Cannabis Indica) (22) Dr. O'Shaughnessy's paper discussed, inter alia, the use of cannabis to successfully treat rheumatic disorders. (23) In 1848, Scottish physician Robert A. Christison authored A dispensatory of commentary on the pharmacopoeias of Great Britain and the United States, which stated, in part:

    Indian hemp has been used as antispasmodic in hydrophobia, tetanus, malignant cholera, and infantile convulsions, with marked relief in repeated instances. Some cases of tetanus appear to have been cured in the East-Indies by it;--It has been employed with success as an anodyne in chronic rheumatism, toothache, and other varieties of neuralgia. I have used it a good deal and with great success, in diseases at large, to obtain sleep. (24) Military physicians used cannabis as an analgesic in the treatment of combat injuries during the U.S. Civil War (1861-1865). (25) Finally, in 1891, American physician J.B. Mattison published an important paper in the St. Louis Medical and Surgical Journal. (26) Dr. Mattison noted the effectiveness of cannabis in treating cocaine and opiate addiction. (27) Moreover, he reported success in treating migraine headaches with cannabis:

    In headache, periodical or long continued, one half to two grains solid extract may be given each hour or two till the attack is arrested, and then continued in a similar dose, morning and night, for weeks or months. It is important not to quit the drug during a respite from pain. Recollect that hemp eases pain without disturbing stomach and secretions so often as opium, and that competent men think it not only calmative, but curative. (28) Thus, the Nineteenth Century saw the beginnings of serious scientific study of the medicinal benefits of cannabis.

    By the late-Nineteenth to early-Twentieth Centuries, cannabis use in the United States was largely confined to medicinal applications. Moreover, there was not a significant degree of recreational cannabis use in the United States during this period. Instead, Americans at this time recreationally used alcohol, tobacco, opium, morphine, and cocaine. (29) In Mexico, on the other hand, smoking cannabis as an intoxicant was common from the 1880s onward. For example, Francisco "Pancho" Villa's soldiers were known to smoke cannabis. (30) Recreational cannabis consumption also occurred in the Caribbean. The practice of smoking cannabis as an intoxicant was imported from Mexico to the United States along the Rio Grande River in the early-1900s. (31) Caribbean merchants and sailors also introduced cannabis into cities along the Gulf of

    Mexico such as New Orleans, Houston, and Galveston. (32)


    1. Early Federal Legislation

      The federal government began legislatively controlling drugs in 1906 when Congress passed the Pure Food and Drug Act. This act was "the first maj or federal drug legislation to require labeling of all preparations containing more than prescribed amounts of opiates..." (33) Three years later, federal legislators passed the "Act to Prohibit Importation and Use of Opium," which "barred the importation of opium at other than specified ports and for other than medicinal use." (34) These federal laws were the first steps in what would ultimately become federal cannabis prohibition.

    2. 1914 El Paso, Texas City Ordinance Banning Sale and Possession of Marijuana

      Given that recreational cannabis was introduced into the United States primarily along the United States-Mexico border, it is not a mere coincidence that perhaps the first, express cannabis prohibition law arose in a border city on the Rio Grande River: El Paso, Texas. In 1914, El Paso enacted a city ordinance which banned the sale and possession of cannabis. (35) The rationale for this ordinance was the belief that cannabis use caused violent behavior among Mexicans, "Negroes, prostitutes, pimps, and a criminal class of whites." (36) This rationale--the Criminality Theory--was representative of the prevailing view among policymakers of the time. Here...

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