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Legal history of cannabis in the United States - Wikipedia, the free encyclopedia

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The legal history of cannabis in the United States relates to the regulation of marijuana use for medical or recreational purposes in the United States. Prohibitions on the use of Cannabis sativa as a drug arose in many states from 1906 and onward. By the mid-1930s Cannabis was regulated as a drug in every state, including 35 states that adopted the Uniform State Narcotic Drug Act.[1]

In the 1970s, many places in the United States started to abolish state laws and other local regulations that banned possession or sale of cannabis. The same thing happened with cannabis sold as medical cannabis in the 1990s. All this is in conflicts with federal laws; cannabis is a Schedule I drug according to the Controlled Substances Act of 1970, which classified cannabis as having high potential for abuse, no medical use, and not safe to use under medical supervision. Multiple efforts to reschedule cannabis under the Act have failed, and the United States Supreme Court has ruled in United States v. Oakland Cannabis Buyers' Coop and Gonzales v. Raich that the federal government has a right to regulate and criminalize cannabis, even for medical purposes.

Contents

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Early history

In 1619 Jamestown colony law declared that all settlers were required to grow hemp or cannabis.[2] In 1797 George Washington grew hemp (cannabis) for fiber production at Mount Vernon as one of his primary crops. The 44-gun frigate USS Constitution, or 'Old Ironsides', took over 60 tons of hemp for rigging, including an anchor cable 25 inches in circumference. The Conestoga wagons and prairie schooners of pioneer days were covered with hemp canvas. Indeed the very word 'canvas' is derived from 'cannabis'.[3] Prohibitions on the use of Cannabis sativa as a drug arose in many states from 1906 onwards. By the mid-1930s cannabis and marijuana were regulated as a drug in every state by laws instituted through the Uniform State Narcotic Drug Act.[1]

Criminalization (1900s)

The first significant instance of cannabis regulation appeared in the District of Columbia in 1906, though this law was not an outright prohibition.[4] Regulation of cannabis followed in Massachusetts (1911), New York (1914), and Maine (1914). Simultaneously tensions were building in the western and southwestern states regarding the influx of Mexicans to America. Many Mexicans also smoked marijuana to relax after working in the fields.[5] Later in that decade negative tensions grew between the small farms and the large farms that used cheaper Mexican labor. Shortly afterwards the Great Depression came which increased tensions as jobs and resources became more scarce. In 1913 California passed the first state marijuana prohibition law, criminalizing the preparation of hemp and its products, the phrase "Indian Hemp" (Cannabis indica) is sometimes used or "loco weed". Other states followed with marijuana prohibition laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); and Nebraska (1927).[6]

Indian hemp regulation (1925)

In 1925 the United States supported regulation of Indian hemp, also known as hashish, in the International Opium Convention.[7] The convention banned exportation of "Indian hemp", and the preparations derived therefrom, to countries that had prohibited its use and required importing countries to issue certificates approving the importation and stating that the shipment was required "exclusively for medical or scientific purposes". The convention did not ban trade in fibers and other similar products from European hemp, and traditionally grown in the United States, which are very tall with a low THC content. According to the 1912 edition of a Swedish encyclopaedia the European hemp grown for its fibers lacks the THC content that characterizes Indian hemp.[8]

Uniform State Narcotic Act (1925–1932)

The Uniform State Narcotic Act, first tentative draft in 1925 and fifth final version in 1932, was a result of work by the National Conference of Commissioners on Uniform State Laws. It was argued that the traffic in narcotic drugs should have the same safeguards and the same regulation in all of the states. The committee took into consideration the fact that the federal government had already passed The Harrison Act in 1914 and The Federal Import and Export Act in 1922. Many people assumed that the Harrison Act was all that was necessary. The Harrison Act, however, was a revenue-producing act and, while it provided penalties for violation, it did not give the states themselves authority to exercise police power in regard to seizure of drugs used in illicit trade, or in regard to punishment of those responsible. The act was recommended to the states for that purpose.[9] As a result of the Uniform State Narcotic Act, the Federal Bureau of Narcotics encouraged state governments to adopt the act. By the middle of the 1930s all member states had some regulation of cannabis.[10][11][12]

Federal Bureau of Narcotics (1930)

FBN public service announcement used in the late 1930s and 1940s

The use of cannabis and other drugs came under increasing scrutiny after the formation of the Federal Bureau of Narcotics (FBN) in 1930,[13] headed by Harry J. Anslinger as part of the government's broader push to outlaw all recreational drugs.

"When the present administration took office ten countries had ratified the Geneva Narcotic Limitation Convention. The United States was one of these ten.... It was my privilege, as President, to proclaim, on that day, that this treaty had become effective throughout the jurisdiction of the United States....On Jan. 1, 1933, only nine nations had registered their ratification of the limitation treaty. On Jan. 1, 1935, only nine States had adopted the uniform State statute. As 1933 witnessed ratification of the treaty by thirty-one additional nations, so may 1935 witness the adoption of the uniform drug act by at least thirty-one more states, thereby placing interstate accord abreast of international accord, to the honor of the legislative bodies of our States and for the promotion of the welfare of our people and the peoples of other lands."

Anslinger claimed cannabis caused people to commit violent crimes and act irrationally and overly sexual. The FBN produced propaganda films promoting Anslinger's views and Anslinger often commented to the press regarding his views on marijuana.[15]

The 1936 Geneva Trafficking Conventions

In 1936 the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs (1936 Trafficking Convention) was concluded in Geneva. The US, led by Anslinger, had attempted to include the criminalization of all activities in the treaty – cultivation, production, manufacture and distribution – related to the use of opium, coca (and its derivatives) and cannabis for non-medical and non-scientific purposes. Many countries opposed this and the focus remained on illicit trafficking. Article 2 of the Convention called upon signatory countries to use their national criminal law systems to "severely" punish, "particularly by imprisonment or other penalties of deprivation of liberty" acts directly related to drug trafficking.[16] The US refused to sign the final version because it considered the convention too weak, especially in relation to extradition, extraterritoriality and the confiscation of trafficking profits.[17]

Marihuana Tax Act (1937)

Main articles: Marihuana Tax Act of 1937 and Hemp
Marihuana Tax Act of 1937
The Marihuana Tax Act of 1937 made possession or transfer of cannabis illegal throughout the United States under federal law, excluding medical and industrial uses, in which an expensive excise tax was required. Annual fees for the tax were $24 ($337 adjusted for inflation) for importers, manufacturers, and cultivators of cannabis, $1 annually ($14 adjusted for inflation) for medical and research purposes, and $3 annually ($42 adjusted for inflation) for industrial uses. Detailed cannabis sale logs were required to keep record of cannabis sales. Selling cannabis to any person who has previously paid the tax is $1 per ounce or fraction thereof; however, it is $100 ($1,406 adjusted for inflation) per ounce or fraction thereof to sell any person who has not registered and paid the special tax.[18]

Tax stamp for a producer of hemp

The American Medical Association (AMA) opposed the act because the tax was imposed on physicians prescribing cannabis, retail pharmacists selling cannabis, and medical cannabis cultivation and manufacturing; instead of enacting the Marihuana Tax Act the AMA proposed cannabis be added to the Harrison Narcotics Tax Act.[19] After the Philippines fell to Japanese forces in 1942, the Department of Agriculture and the U.S. Army urged farmers to grow hemp fiber and tax stamps for cultivation were issued to farmers. Without any change in the Marihuana Tax Act, over 400,000 acres of hemp were cultivated between 1942 and 1945. The last commercial hemp fields were planted in Wisconsin in 1957.[20] New York Mayor Fiorello LaGuardia, who was a strong opponent of the 1937 Marihuana Tax Act, started the LaGuardia Commission that in 1944 contradicted the earlier reports of addiction, madness, and overt sexuality.[21] In its 1969 Leary v. United States decision the Supreme Court held the Marihuana Tax Act to be unconstitutional, since it violated the Fifth Amendment privilege against self-incrimination.[22] In response, Congress repealed the Marihuana Tax Act and passed the Controlled Substances Act as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, which repealed the Marihuana Tax Act.[23]

The decision of the United States Congress to pass the Marihuana Tax Act of 1937 was based on hearings and reports.[24][25] In 1936 the Federal Bureau of Narcotics (FBN) noticed an increase of reports of people smoking marijuana, which further increased in 1937. The Bureau drafted a legislative plan for Congress, seeking a new law and the head of the FBN, Harry J. Anslinger, ran a campaign against marijuana.[26][27] Newspaper mogul William Randolph Hearst's empire of newspapers began publishing what is known as "Yellow journalism", demonizing the cannabis plant and putting emphasis on connections between cannabis and violent crime.[28] Several scholars argue that the goal was to destroy the hemp industry,[29][30][31] largely as an effort of Hearst, Andrew Mellon and the Du Pont family.[29][31] They argue that with the invention of the decorticator hemp became a very cheap substitute for the paper pulp that was used in the newspaper industry.[29][32] They also believe that Hearst felt that this was a threat to his extensive timber holdings. Mellon was Secretary of the Treasury and the wealthiest man in America and had invested heavily in nylon, DuPont's new synthetic fiber, and considered its success to depend on its replacement of the traditional resource, hemp.[29][33][34][35][36][37][38][39] According to other researchers there were other things than hemp more important for DuPont in the mid-1930s: to finish the product (nylon) before its German competitors, to start plants for nylon with much larger capacity, etc.[40]

Hemp, bast with fibers. The stem in the middle.

In 1916 United States Department of Agriculture (USDA) chief scientists Jason L. Merrill and Lyster H. Dewey created a paper, USDA Bulletin No. 404 "Hemp Hurds as Paper-Making Material", in which they concluded that paper from the woody inner portion of the hemp stem broken into pieces, so called hemp hurds, was "favorable in comparison with those used with pulp wood". Dewey and Merrill believed that hemp hurds were a suitable source for paper production.[41] In 2003 95% of the hemp hurds in EU were used for animal bedding, almost 5% were used as building material. In addition 70–80% of hemp fiber produced was used in specialty pulp for cigarette papers and technical applications; hemp is not reported as source for mass production of newsprint.[42]

In 1916 the United States Department of Agriculture assumed, partly based on the incorrect finding about hemp hurds of USDA Bulletin No. 404, that the production of hemp would rise in the US. In reality production fell until 1933, due to competition with other fibers and imports. In 1933 production was only around 500 tons of hemp fiber per year. 1934–1935 the cultivation of hemp began to increase, but still with a very low volume compared with other types of fibers and with no significant increase in production of paper from hemp.[43]

There was also a misconception about the intoxicating effects of hemp because it has the same active substance, THC, which is in all cannabis strains. Hemp normally has a minimal amount of THC when compared to recreational cannabis strains but, in the 1930s, THC was not yet fully identified.[44] The methods FBN used for predicting the psychoactive effect of different samples of cannabis and hemp therefore gave confusing results.[45][46]

Mandatory sentencing (1952, 1956)

Mandatory sentencing and increased punishment were enacted when the United States Congress passed the Boggs Act of 1952 and the Narcotics Control Act of 1956. The acts made a first-time cannabis possession offense a minimum of two to ten years with a fine up to $20,000; however in 1970 the United States Congress repealed mandatory penalties for cannabis offenses.[21]

Reorganization (1968, 1973)

U.S. cannabis arrests by year. 1965 to 2008.

In 1968 the United States Department of the Treasury subsidiary the Bureau of Narcotics and the United States Department of Health, Education, and Welfare subsidiary the Bureau of Drug Abuse Control merged to create the Bureau of Narcotics and Dangerous Drugs as a United States Department of Justice subsidiary.[47]

In 1973 President Richard Nixon's "Reorganization Plan Number Two" proposed the creation of a single federal agency to enforce federal drug laws and Congress accepted the proposal, as there was concern regarding the growing availability of drugs.[48] As a result, on July 1, 1973, the Bureau of Narcotics and Dangerous Drugs (BNDD) and the Office of Drug Abuse Law Enforcement (ODALE) merged together to create the Drug Enforcement Administration (DEA).[21] On December 1, 1975, the Supreme Court ruled that it was "not cruel or unusual for Ohio to sentence someone to 20 years for having or selling cannabis."[49]

State Office of Narcotics and Drug Abuse (1977)

In January 1976, California's careful study of the economic impact of its law repealing prohibitions of use went into effect. The law reduced the penalty for personal possession of an ounce or less of marijuana from a felony to a citable misdemeanor with a maximum fine of $100. Possession of more than an ounce was made a misdemeanor, making the maximum fine $500 and/or six months in jail. After the law went into effect, the states annual spending towards marijuana laws went down 74%. Prior to the law, the state had been spending from $35 million to $100 million.[50]

Mandatory sentencing and three-strikes (1984, 1986)

During the Reagan Administration the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984 created the Sentencing Commission, which established mandatory sentencing guidelines.[51] The Anti-Drug Abuse Act of 1986 reinstated mandatory prison sentences, including large scale cannabis distribution.[52] Later an amendment created a three-strikes law, which created mandatory life sentences for repeat drug offenders and allowed the death penalty to be used against "drug kingpins."[21]

United States v. Oakland Cannabis Buyers' Cooperative (2001)

In 1996 California voters passed Proposition 215, which legalized medical cannabis. The Oakland Cannabis Buyers' Cooperative was created to "provide seriously ill patients with a safe and reliable source of medical cannabis, information and patient support" in accordance with Proposition 215.[53]

In January 1998 the U.S. Government sued Oakland Cannabis Buyers' Cooperative for violating federal laws created as a result of Controlled Substances Act of 1970. On May 14, 2001, the United States Supreme Court ruled in United States v. Oakland Cannabis Buyers' Coop that federal anti-drug laws do not permit an exception for medical cannabis and rejected the common-law medical necessity defense to crimes enacted under the Controlled Substances Act because Congress concluded cannabis has "no currently accepted medical use" when the act was passed in 1970.[54]

Gonzales v. Raich (2005)

Main article: Gonzales v. Raich

Gonzales v. Raich 545 U.S. 1 (2005) was a decision in which the U.S. Supreme Court ruled (6-3) that even where persons are cultivating, possessing, or distributing medical cannabis in accordance with state-approved medical cannabis programs, such persons are violating federal marijuana laws and can therefore be prosecuted by federal authorities because the Commerce Clause of the United States Constitution permits federal authorities (pursuant to the Controlled Substances Act) to prosecute any and all offenses of federal marijuana laws. The respondents argued that because the cannabis in question had been grown, transported, and consumed entirely within the state of California, pursuant to California medical cannabis laws, their activity did not implicate interstate commerce and as such, could not be legitimately regulated by the federal government through the Commerce Clause. The Supreme Court disagreed, reasoning that cannabis grown for medical purposes is indistinguishable from illicit marijuana and that, because the intrastate medical cannabis market contributes to the interstate illicit marijuana market, the Commerce Clause applies. Even where persons are using medical cannabis in full compliance with state law, those persons can still be punished by federal authorities for violating federal law.[55]

To combat state-approved medical cannabis legislation, the Drug Enforcement Agency (DEA) routinely targets and arrests medical cannabis patients as well as seizing medical cannabis and the business assets of growers and medical dispensaries. However, the Obama administration has indicated that this practice may potentially be curtailed.[56]

Attempts to Decriminalize (1970s–2000s)

Medical use

Main article: Medical cannabis

cannabis fluid extract medicine bottle from 1906

In 1978 Robert Randall sued the federal government for arresting him for using cannabis to treat his glaucoma. The judge ruled Randall needed cannabis for medical purposes and required the Food and Drug Administration set up a program to grow cannabis on a farm at the University of Mississippi and to distribute 300 cannabis cigarettes a month to Randall. In 1992 George H. W. Bush discontinued the program after Randall tried to make AIDS patients eligible for the program. Thirteen people were already enrolled and were allowed to continue receiving cannabis cigarettes; today the government still ships cannabis cigarettes to seven people. Irvin Rosenfeld, who became eligible to receive cannabis from the program in 1982 to treat rare bone tumors, urged the George W. Bush administration to reopen the program; however, he was unsuccessful.[57]

Alaska is the only state where possession of up to one ounce is legal.[58] "Citing the dangers of marijuana and the lack of clinical research supporting its medicinal value" the American Society of Addiction Medicine in March 2011 issued a white paper recommending a halt to using marijuana as a medicine in US states where it has been declared legal.[59][60]

Advocacy

Several U.S.-based advocate groups seek to modify the drug policy of the United States to decriminalize cannabis. These groups include Law Enforcement Against Prohibition, Students for Sensible Drug Policy, The Drug Policy Alliance, the Marijuana Policy Project, NORML, Coalition for Rescheduling Cannabis, and Americans for Safe Access. In June 2005, libertarian economist Jeffrey Alan Miron and over 530 other economists, including Nobel Prize winner Milton Friedman, called for the legalization of cannabis in an open letter to President George W. Bush, the United States Congress, Governors, and State Legislatures of the United States.[61] The open letter contained Miron's "Budgetary Implications of Marijuana Prohibition in the United States" report (view report). In 1997, the Connecticut Law Revision Commission recommended Connecticut reduce cannabis possession of one ounce or less for adults age 21 and over to a civil fine.[62] In 2001, the New Mexico state-commissioned Drug Policy Advisory Group stated that decriminalizing cannabis "will result in greater availability of resources to respond to more serious crimes without any increased risks to public safety."[63] A few places in California have been advocating cannabis decriminalization. On November 3, 2004, Oakland passed Proposition Z, which makes "adult recreational marijuana use, cultivation and sales the lowest [city] law enforcement priority."[64] Ron Paul, a Texas Congressman and 2008 Presidential Candidate, stated at a rally in response to a question by a medical cannabis patient that he would "never use the federal government to force the law against anybody using marijuana."[65]

Non-medical use

United States non-medical marijuana decriminalization laws.
  State-level but not federal decriminalization of non-medical marijuana
  No federal or state level decriminalization of non-medical marijuana

In 1970 the United States Congress repealed mandatory penalties for cannabis offenses and The Comprehensive Drug Abuse Prevention and Control Act separated cannabis from other illicit narcotics and removed mandatory sentences for possession of small amounts of cannabis.[21] In 1972 President Richard Nixon commissioned a comprehensive study from the National Commission on Marijuana and Drug Abuse. The Commission found that the constitutionality of cannabis prohibition was suspect and that the executive and legislative branches had a responsibility to obey the Constitution, even in the absence of a court ruling to do so. The Richard Nixon administration did not implement the study's recommendations.[66]

In 1973 Oregon decriminalized cannabis.[67] Laws changed again in 1995 that reduced penalties. Possession of one ounce or less became legally defined as a "violation" (a crime that is considered a lesser offence than a misdemeanor) and now is punishable by a $500 to $1,000 fine that can be, in some jurisdictions, paid off by means of community service. Possession of multiple containers of any weight, or possession of more than one ounce can sometimes add the additional crime "Intent to Sell". In some cases people who have no marijuana, but are caught at the scene of a drug bust, are charged with "Frequenting". Stricter punishments exist for sale, cultivation, and proximity to schools.[68]

Colorado, Alaska, Ohio, and California followed suit in 1975. By 1978 Mississippi, North Carolina,[69] New York, and Nebraska had some form of cannabis decriminalization.[70][71] In 2001 Nevada reduced cannabis possession from a felony offense to a misdemeanor, but only for adults age 21 and older, with other restrictions.[72] Starting in the 1970s multiple states, counties, and cities decriminalized cannabis for non-medical purposes. While many states, counties, and cities have partially decriminalized cannabis on November 3, 2004, Oakland passed Proposition Z, and became the first place to fully decriminalize cannabis to allow the licensing, taxing, and regulation of cannabis sales if California law is amended to allow so.[73] In 2008 Massachusetts passed a voter initiative that decriminalized simple possession of up to one ounce of marijuana, instead making it a civil infraction punishable by a $100 fine. Criminal penalties for cultivation and distribution remain in place.[74]

A vote in 2005 of 54% to 46% in Denver, Colorado, made the possession of up to an ounce of cannabis legal, although it does not overrule state laws and one may still be arrested for it—it also only applies to people age 21 and older. In 2006 Denver City Council voted to make arrests and tickets for possession of marijuana the lowest priority for law enforcement. Today the fine for possession of up to two ounces is only one dollar (plus court costs and a $100 drug offender surcharge). Most recently the town of Breckenridge, Colorado, passed a similar law also allowing for the possession of up to one ounce of Marijuana.[75] The American Medical Association and the California Medical Association have both separately called for more research on Marijuana.[76][77] Canorml.org said, "...CMA consider the criminalization of marijuana to be a failed public health policy; and be it further resolved that CMA encourage and participate in debate and education regarding the health aspects of changing current policy regarding cannabis use."[77]

Drug courts

Main article: Drug court

Drug courts first started in 1989 and have spread since. 2140 drug courts were in operation May 2008, with another 284 being planned or developed.[78] They offer offenders charged with less-serious crimes of being under the influence, possession of a controlled substance, or even drug-using offenders charged with a non-drug related crime the option of entering the drug court system a conventional criminal court with the possibility of serving a jail sentence. To take advantage of this program, offenders have to plead guilty to the charge, agree to take part in treatment, regular drug screenings, and regular reporting to the drug court judge for a minimum of one year. Should the offender fail to comply with one or more of the requirements they may be removed from the drug court and incarcerated at the judge's discretion. If they complete the drug court program the charges brought against them are dropped or reduced.[79]

See also

References

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