The “Drug Evil”: Narcotics Law, Race, and the Making of America's Composite Penal State by Jason L. Bates Dissertation Su
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The “Drug Evil”: Narcotics Law, Race, and the Making of America’s Composite Penal State By Jason L. Bates Dissertation Submitted to the Faculty of the Graduate School of Vanderbilt University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY in History December, 2016 Nashville, Tennessee . Approved: Gary Gerstle, Ph.D. Sarah Igo, Ph.D. Katherine Crawford, Ph.D. Paul Kramer, Ph.D. Daniel Sharfstein, J.D Copyright © 2016 by Jason L. Bates All Rights Reserved ii TABLE OF CONTENTS Introduction ..................................................................................................................................... 1 Part I: Subnational Actors, Narcotics, and the Scope of the States' Powers Chapter 1. Opium Smoking in California, 1875-1911: Expanding State Power to ‘Check this Branch of the Chinese Evil’ ...................................................................................................................... 30 I. Defining Opium Use as a Problem and Anticipating its Political Dividends ................ 35 II. Exceeding the Late-Nineteenth-Century Limits of the State’s Police Power .............. 42 III. Evading a Federal Constitutional Challenge to Anti-Opium Law .............................. 48 IV. Expanding the State’s Response to Opium to Reach New Groups and Drugs ........... 54 V. Justifying a Renewed Attack on Narcotics Possession ................................................ 59 VI. Securing Judicial Approval of a Stronger Police Power ............................................ 65 VII. Conclusion ................................................................................................................. 72 2. “Stripes for Cocaine Sellers:” Improvising a Response to Anxieties over Black Criminality in Turn-of-the-Century Georgia ................................................................................................... 75 I. Defining the Consequences and Geography of a Nascent Cocaine Problem ................ 80 II. Using Existing Law to Improvise a Response to Cocaine Use and Sales .................... 89 III. Anti-Cocaine Law, Workarounds, and Concerns about Atlantans’ Liberties ............ 93 IV. Responding to Atlanta’s Race Riot with Additional Anti-Cocaine Legislation ...... 102 V. Conclusion: On Georgia’s Decision not to Expand its Anti-Narcotic Law ............... 113 Part II: Expanding a Liberal State in a Federal System through Narcotics Criminalization 3. “Not Far from being an ‘Opium Eating’ Country:” The Legal and Political Debate Over Federal Drug Control Law ..................................................................................................... 119 I. Addressing Opium through Uncontroversial Exercises of Federal Power .................. 125 II. International Developments, Domestic Study, and Early Constitutional Concerns .. 131 III. The Harrison Act and Pitched Battles over Congressional Power ........................... 137 IV. The Decade-Long Legal Battle over Congress’s Power to Regulate Drugs ............ 148 V. Conclusion ................................................................................................................. 162 4. Policing “Undesirable Citizens:” Federal Narcotic Agents, State Law Enforcement, and their Suspects in the 1920s ............................................................................................................. 165 I. Bringing Federal Investigative Techniques to Bear Against the U.S. Population ...... 171 II. The Cooperative Origins of the American Penal State .............................................. 176 III. Narcotics Offenses, Fitness for Citizenship, Race, and Trafficking ......................... 182 IV. Using the Fourth Amendment to Circumscribe Federal Investigative Power .......... 190 V. Formalizing Cooperation among Local, State, and Federal Officers ........................ 200 VI. Conclusion ................................................................................................................ 206 iii 5. The State’s Power to Expel and its Limits: The Federal Government’s Decade-Long Effort to Make Drug Law Violations into Deportable Offenses ........................................................... 209 I. Congress, Narcotics Violations, and Moral Turpitude ................................................ 214 II. The Bureau of Immigration and Andreacchi .............................................................. 223 III. The Jones-Miller Act and Judicial Discretion .......................................................... 229 IV. Expanding Narcotics Deportations and the Persistence of Judicial Discretion ........ 239 V. Conclusion ................................................................................................................. 252 Epilogue ...................................................................................................................................... 254 Bibliography ............................................................................................................................... 271 iv INTRODUCTION During the spring and summer of 1913, lawmakers in Washington turned their attention to “the opium evil” as never before. Preparing for the Second International Opium Conference, to be held in July at The Hague, President Woodrow Wilson and Secretary of State William Jennings Bryan requested that Congress appropriate $20,000 to fund the U.S. delegation. Both thought the “abolition of the opium evil” of paramount importance, Wilson contending that this “vice” had caused “world-wide misery and degradation.” For his part, Bryan lauded the U.S.’s leadership in organizing a global response to opium. He reminded Congress that the United States had raised the call that led to the first international opium commission, held in Shanghai in 1909. Despite that point of pride, though, he identified “one feature of the international and national effort” to suppress “the opium evil” that Americans should find “disquieting.” While international organization against narcotics had led other counties to improve their domestic legislation, Congress had not yet made such a move. Writing in April, Bryan claimed that several bills would soon come before the national legislature. He stressed that enactment of these measures was necessary to place “this Government on a rightful position before the world.”1 Two months later, Representative Francis Harrison, a Democrat from New York whom Wilson would appoint Commissioner General of the Philippines before the close of the year, introduced the narcotics bill that has ever since borne his name. After Congress passed it, 18 months later, the Harrison Narcotics Act established a registration and taxing scheme that limited the parties that could traffic licitly in opium, cocaine, and their derivatives.2 While Bryan had 1 Comm. on Appropriations, Abolition of the Opium Evil, H.R. Rep. 63-33 (1913), 1-2, 5. 2 The legal and political project I describe in this study is, in part, a story of how government actors came to define the term “narcotic.” I use it to refer to the substances that policymakers then, as now, commonly subsumed under 1 emphasized China’s opium problem, Harrison, in June 1913, argued that narcotics represented a domestic threat. He insisted that the country had seen an increase in narcotics imports that far outstripped its population growth, dismissing one explanation for the substances’ increased presence in the U.S. He described an “almost shameless traffic in these drugs,” explained that drug use had foist new “criminal classes” as well as “moral and economic degradation” on the country, and concluded that the U.S. had become “an opium-consuming nation.”3 In urging passage of his bill, Harrison made a pair of concessions about federal anti- narcotics legislation. Importantly, he acknowledged that federal action followed on “strenuous efforts” already made by many state governments to “prevent the indiscriminate sales of narcotics.” Indeed, he noted that “most” states had already enacted drug control laws. He pitched his bill as “aid” to the states. He also implicitly acknowledged, though, that Congress lacked the power to pass a control law modeled directly on the states’ pharmacy laws. After five years of discussion among state and federal policymakers, Harrison explained, a consensus had emerged: “Only by customs law and by the exertion of the [f]ederal taxing power” could “the desired end be accomplished.” He thus highlighted a key dilemma of federal power over drugs: The porousness of state borders made a federal law necessary to address domestic trafficking, but the Constitution left Congress few options to address narcotics commerce.4 Lawmaker and public discussions like these, about whether and how to criminalize narcotics, reveal the coexistence of two powerful and widely-held beliefs in the turn-of-the- century United States. On the one hand, as Bryan’s repeated reference to the opium problem in that heading, including opium, cocaine, and their derivatives. As others have noted, the term is a legal construct; cocaine, pharmacologically, is a stimulant and not a narcotic. See Hardin B. Jones and Helen C. Jones, Sensual Drugs: Deprivation and Rehabilitation of the Mind (Cambridge, UK: Cambridge University Press, 1978), 93. 3 Abolition of the Opium Evil, 4-5; Comm. of the Whole House on the State of the Union, Registration of Producers and Importers of Opium, Etc. H.R. Rep. 63-23 (1913), 1-2; Los Angeles Times, August 21, 1913. 4 Registration of