The Harrison Act
The very first criminal law at the Federal level in this country to criminalize the non-medical use of drugs came in 1914. It was called the Harrison Act and there are only three things about the Harrison Act that we need to focus on today.
Number one is the date. Did you hear the date, 1914? Some of you may have come this morning thinking that we have used the criminal law to deal with the non-medical use of drugs since the beginning of the Republic or something. That is not true. The entire experiment of using the criminal sanction to deal with the non-medical use of drugs really began in this country in 1914 with the Harrison Act.
The second interesting thing about the Harrison Act was the drugs to which it applied, because it applied to almost none of the drugs we would be concerned about today. The Harrison Act applied to opium, morphine and its various derivatives, and the derivatives of the coca leaf like cocaine. No mention anywhere there of amphetamines, barbiturates, marijuana, hashish, hallucinogenic drugs of any kind. The Harrison Act applied only to opium, morphine and its various derivatives and derivatives of the coca leaf like cocaine.
The third and most interesting thing for you all as judges about the Harrison Act was its structure, because the structure of this law was very peculiar and became the model for every single piece of Federal legislation from 1914 right straight through 1969. And what was that model?
It was called the Harrison Tax Act. You know, the drafters of the Harrison Act said very clearly on the floor of Congress what it was they wanted to achieve. They had two goals. They wanted to regulate the medical use of these drugs and they wanted to criminalize the non-medical use of these drugs. They had one problem. Look at the date -- 1914. 1914 was probably the high water mark of the constitutional doctrine we today call "states' rights" and, therefore, it was widely thought Congress did not have the power, number one, to regulate a particular profession, and number two, that Congress did not have the power to pass what was, and is still known, as a general criminal law. That's why there were so few Federal Crimes until very recently.
In the face of possible Constitutional opposition to what they wanted to do, the people in Congress who supported the Harrison Act came up with a novel idea. That is, they would masquerade this whole thing as though it were a tax. To show you how it worked, can I use some hypothetical figures to show you how this alleged tax worked?
There were two taxes. The first (and again, these figures aren't accurate but they will do to show the idea) tax was paid by doctors. It was a dollar a year and the doctors, in exchange for paying that one dollar tax, got a stamp from the Government that allowed them to prescribe these drugs for their patients so long as they followed the regulations in the statute. Do you see that by the payment of that one dollar tax, we have the doctors regulated? The doctors have to follow the regulations in the statute.
And there was a second tax. (and again, these are hypothetical figures but they will show you how it worked.) was a tax of a thousand dollars of every single non-medical exchange of every one of these drugs. Well, since nobody was going to pay a thousand dollars in tax to exchange something which, in 1914, even in large quantities was worth about five dollars, the second tax wasn't a tax either, it was a criminal prohibition. Now just to be sure you guys understand this, and I am sure you do, but just to make sure, let's say that in 1915 somebody was found, let's say, in possession of an ounce of cocaine out here on the street. What would be the Federal crime? Not possession of cocaine, or possession of a controlled substance. What was the crime? Tax evasion.
And do you see what a wicked web that is going to be? As a quick preview, where then are we going to put the law enforcement arm for the criminalization of drugs for over forty years -- in what department? The Treasury Department. Why, we are just out there collecting taxes and I will show you how that works in a minute.
If you understand that taxing scheme then you understand why the national marijuana prohibition of 1937 was called the Marihuana Tax Act.
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The Early State Marijuana Laws
But before we get to that next big piece of Federal legislation, the marihuana prohibition of 1937, I would like to take a little detour, if I may, into an analysis of the early state marijuana laws passed in this country from 1915 to 1937.
Let me pause to tell you this. When Professor Bonnie and I set out to try to track the legal history of marijuana in this country, we were shocked that nobody had ever done that work before. And, secondly, the few people who had even conjectured about it went back to the 1937 Federal Act and said "Well, there's the beginning of it." No. If you go back to 1937, that fails to take account of the fact that, in the period from 1915 to 1937, some 27 states passed criminal laws against the use of marijuana. What Professor Bonnie and I did was, unique to our work, to go back to the legislative records in those states and back to the newspapers in the state capitols at the time these laws were passed to try to find out what motivated these 27 states to enact criminal laws against the use of marijuana. What we found was that the 27 states divided into three groups by explanation.
The first group of states to have marijuana laws in that part of the century were Rocky Mountain and southwestern states. By that, I mean Texas, New Mexico, Colorado, Montana. You didn't have to go anywhere but to the legislative records to find out what had motivated those marijuana laws. The only thing you need to know to understand the early marijuana laws in the southwest and Rocky Mountain areas of this country is to know, that in the period just after 1914, into all of those areas was a substantial migration of Mexicans. They had come across the border in search of better economic conditions, they worked heavily as rural laborers, beet field workers, cotton pickers, things of that sort. And with them, they had brought marijuana.
Basically, none of the white people in these states knew anything about marijuana, and I make a distinction between white people and Mexicans to reflect a distinction that any legislator in one of these states at the time would have made. And all you had to do to find out what motivated the marijuana laws in the Rocky mountain and southwestern states was to go to the legislative records themselves. Probably the best single statement was the statement of a proponent of Texas first marijuana law. He said on the floor of the Texas Senate, and I quote, "All Mexicans are crazy, and this stuff (referring to marijuana) is what makes them crazy." Or, as the proponent of Montana's first marijuana law said, (and imagine this on the floor of the state legislature) and I quote, "Give one of these Mexican beet field workers a couple of puffs on a marijuana cigarette and he thinks he is in the bullring at Barcelona."
Well, there it was, you didn't have to look another foot as you went from state to state right on the floor of the state legislature. And so what was the genesis for the early state marijuana laws in the Rocky Mountain and southwestern areas of this country? It wasn't hostility to the drug, it was hostility to the newly arrived Mexican community that used it.
A second group of states that had criminal laws against the use of marijuana were in the Northeast, Connecticut, Rhode Island, New York -- had one and then repealed it and then had one again -- New Jersey. Well, clearly no hypothesis about Mexican immigration will explain the genesis of those laws because, as you know, the Northeast has never had, still doesn't really, any substantial Mexican-American population. So we had to dig a little deeper to find the genesis of those laws. We had to go not only to the legislative records but to the newspapers in the state capitols at the time these laws were passed and what we found, in the early marijuana laws in the Northeast, we labeled the "fear of substitution." If I may, let me paraphrase an editorial from the New York Times in 1919 so we will get exactly the flavor of this fear of substitution.
The New York Times in an editorial in 1919 said, "No one here in New York uses this drug marijuana. We have only just heard about it from down in the Southwest," and here comes the substitution. "But," said the New York Times, "we had better prohibit its use before it gets here. Otherwise" -- here's the substitution concept -- "all the heroin and hard narcotics addicts cut off from their drug by the Harrison Act and all the alcohol drinkers cut off from their drug by 1919 alcohol Prohibition will substitute this new and unknown drug marijuana for the drugs they used to use."
Well, from state to state, on the theory that this newly encountered drug marijuana would be substituted by the hard narcotics addicts or by the alcohol drinkers for their previous drug that had been prohibited, state to state this fear of substitution carried, and that accounted for 26 of the 27 states -- that is, either the anti-Mexican sentiment in the Southwest and Rocky Mountain areas or fear of substitution in the Northeast. That accounted for 26 of the 27 states, and there was only one state left over. It was the most important state for us because it was the first state ever to enact a criminal law against the use of marijuana and it was the state of Utah.
Now, if you have been hearing this story and you have been playing along with me, you think "Oh, wait a minute, Whitebread, Utah fits exactly with Colorado, Montana, -- it must have been the Mexicans."
Well, that's what I thought at first. But we went and did a careful study of the actual immigration pattern and found, to our surprise, that Utah didn't have then, and doesn't have now, a really substantial Mexican-American population. So it had to be something else.
Come on folks, if it had to be something else, what do you think it might have been? Are you thinking what I was thinking -- that it must have had something to do with the single thing which makes Utah unique in American history -- its association with the Mormon church.
With help from some people in Salt Lake City, associated with the Mormon Church and the Mormon National Tabernacle in Washington -- with their help and a lot of work we found out what the genesis was of the first marihuana law in this country. Yes, it was directly connected to the history of Utah and Mormonism and it went like this.
I think that a lot of you know that, in its earliest days, the Mormon church permitted its male members to have more than one wife -- polygamy. Do you all know that in 1876, in a case called Reynolds against the United States, the United States Supreme Court said that Mormons were free to believe what they wanted, but they were not free to practice polygamy in this country. Well, who do you think enforced that ruling of the Supreme Court in 1876? At the end of the line, who enforces all rulings of the Supreme Court? Answer: the state and local police. And who were they in Utah then? All Mormons, and so nothing happened for many years. Those who wanted to live polygamously continued to do so.
In 1910, the Mormon Church in synod in Salt Lake City decreed polygamy to be a religious mistake and it was banned as a matter of the Mormon religion. Once that happened, there was a crackdown on people who wanted to live in what they called "the traditional way". So, just after 1910, a fairly large number of Mormons left the state of Utah, and indeed left the United States altogether and moved into northwest Mexico. They wrote a lot about what they wanted to accomplish in Mexico. They wanted to set up communities where they were basically going to convert the Indians, the Mexicans, and what they referred to as "the heathen" in the neighborhood to Mormonism.
By 1914, they had had very little luck with the heathen, but our research shows now beyond question that the heathen had a little luck with them. What happened apparently -- now some of you who may be members of the church, you know that there are still substantial Mormon communities in northwest Mexico -- was that, by and large most of the Mormons were not happy there, the religion had not done well there, they didn't feel comfortable there, they wanted to go back to Utah where there friends were and after 1914 did.
And with them, the Indians had given them marijuana. Now once you get somebody back in Utah with the marijuana it all becomes very easy, doesn't it? You know that the Mormon Church has always been opposed to the use of euphoriants of any kind. So, somebody saw them with the marijuana, and in August of 1915 the Church, meeting again in synod in Salt Lake City decreed the use of marijuana contrary to the Mormon religion and then -- and this is how things were in Utah in those days -- in October of 1915, the state legislature met and enacted every religious prohibition as a criminal law and we had the first criminal law in this country's history against the use of marijuana.
That digression into the early state marijuana laws aside, we will now get back on the Federal track, the year is 1937 and we get the national marijuana prohibition -- the Marihuana Tax Act
