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The Forbidden Fruit and the Tree of Knowledge: an Inquiry Into the Legal History of American Marijuana Prohibition

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The Forbidden Fruit and the Tree of Knowledge: an Inquiry Into the Legal History of American Marijuana Prohibition VIRGINIA LAW REVIEW VOLUME 56 OCTOBER 1970 NUMBER 6 THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION Richard ]. Bonnie* & Cbarles H. Whitebread, Il** Mr. Snell. What is the bill? Mr. Rayburn. It has something to do with something that is called marihuana. I believe it is a narcotic of some kind. Colloquy on the House floor prior to passage of the Marihuana Tax Act. • Assistant Professor of Law, University of Virginia. B.A., 1966, Johns Hopkins University; LL.B., 1969, University of Virginia . •• Assistant Professor of Law, University of Virginia. A.B., 1965, Princeton Uni­ versity; LL.B., 1968, Yale University. We wish to express our sincere appreciation to the students who assisted us in the preparation of the tables at Appendix A. Because the drug statutes of the several states are particularly confusing and difficult to find, and because so many jurisdictions have recently changed their drug laws, the preparation of the chart required long, tedious work which so many were kind enough to perform. To them, our most sincere thanks. We should like to thank especially Michael A. Cohen, John F. Kuether, W. Tracey Shaw, Alan K. Smith, and Allan J. Tanenbaum, all students at the University of Vir­ ginia School of Law, whose research assistance and tireless effort were invaluable. \Ve are particularly indebted to Professor Jerry Mandel who supplied us with much of the raw data used in the historical case studies in this Article. In his excel­ lent article on drug statistics in the Stanford Law Review, Problems 'With Official Drug Statistics, 2] STAN. L. REv. 991 (1969), Professor Mandel suggested in a footnote that someone should attempt a history of the passage of anti-marijuana legislation. We have followed his suggestion and earnestly hope that our product will fill this gap. A modified and expanded version of this Article will be published in book form in the spring of 1971. [ 971 ] 972 Virginia Law Review [Vol. 56:971 PAGE TABLE OF CONTENTS I. INTRoDUcnON 974 II. THE ANTECEDENTS: CRIMINALIZATION OF NARCOTICS AND ALcoHOL •••••••••• 975 J4. J4 }levie~ of the Jr~perance Alov~ent ...•............•........... 977 B. J4nti-Narcotics Legislation to 1914 .................................. .. 981 1. Narcotics Use at the Jrurn of the Century: J4 Growing Probl~ ... 981 2. State Legislative }lesponse Before 1914 .......................... .. 985 3. Watershed: Jrhe Passage of the Harrison J4ct .................... .. 986 C. Jrhe Judicial }lole and the Constitutional Framework: Jrhe Police Power and Intoxicant Prohibition to 1920 ................................... 990 1. Phase One: Prohibition of Sale and Alanufacture of J4lcohol ....... 991 2. Phase Jrwo: Prohibition of Sale of Opium ................ , ........ ~ 996 3. Phase Jrhree: Prohibition of Possession of J4lcohol to 191) ..•.•..... 998 4. Phase Four: Prohibition of Possession of Narcotics ................. 1001 S. Phase Five: Prohibition of Possession of J4lcohol J4fter 191) ....... 1005 6. J4 Postscript on the Police Po~er: Jrhe Cigarette Cases ..........•... 1008 III. THE GENESIS OF MARIJUANA PROHIBITION •••••••••••••••••••••••••••••••••• 1010 J4. Initial State Legislation: 1914-1931 ................................... 1010 1. Rationale in the West: Class Legislation ..................•......... 1012 2. Rationale in the East: Substitution ............................... .. 1016 3. Jrhe International Scene ........................................... 1020 4. Conclusion ..........................•.•........................... 1021 B. Judicial Corroboration ................................................ 1022 IV. PASSAGE OF THE UNIFORM NARCOTIC DRUG Acr: 1927-1937 .................. 1026 J4. Origins of the Uniform [aw ......•.••.•............................ 1028 B. Drafting the La~ ..............•.................•.•...........•..... 1030 C. Passage of the State Laws ................•...•.....•••............•.• 1034 1. Use Patterns and Public Knowledge: 1931-1937 ......•....•.......• 1035 2. Role of the Federal Bureau of Narcotics ............................ 1037 3. Legislative Scrutiny and Aledia Coverage ....•.........•............ 1038 4. J4vailable Aledical Opinion ..................•............•......... 1042 S. Provisions of the Uniform Narcotic Drug J4ct and Suppl~ental Vir- ginia Alarijuana Statute ...................................... : ...... 1047 (a) Classification and Offenses ...................................... 1047 (b) Penalties ....................... ,............................. •. 1047 V. PASSAGE OF THE MARIHUANA TAX Acr OF 1937 ............................ 1048 J4. State Enforcement of the Uniform La~ .............................. 1049 B. Public Hysteria or Continued Public Ignorance? ...................... 1052 ·C. Jrhe Tax J4ct Hearings ............................................... 1053 '1. Who Were Users? ................................•......•..•..... 1054 2. Wbat's Wrong with Alarijuana? .................................... 1055 3. ll~ Dare You Dissent! ............................................. 1059 D. Congressional "Deliberation" and J4ction .............................. 1060 E. Provisions-: of the J4ct •....................................•.......... 1062 VI. THE 1950's: HARSHER PENALTIES AND A NEW RATIONALE-THE "StEPPING STONE" THEORY •••••••.••••••••••••••••••••••••••••.••••••••••••••••••••• 1063 J4. Jrhe Boggs J4ct and Its Progeny: Jrhe First Escalation ................ 1063 1970] Marijuana Probibition 973 PAGE 1. The Problem: Increased Narcotics Use ............................ 1064 2. The Solution: Harsher Penalties ................................... 1066 3. Marajuana and the Boggs Act ...................................... 1068 (a) Increased Use .................................................. 1068 (b) Youthful Users ................................................ 1070 (c) Tbe Danger: A New Rationale ................................ 1071 4. Tbe State Response: Mindless Esca'ation ........................... 1074 B. Tbe Late 1950's: Anotber Escalation of tbe Penalties .................. 1076 1. Provisions of tbe Narcotic Control Act of 1956 ...................... 1077 2. Marijuana: Along for tbe Ride .................................... 1078 3. Trafficking Patterns ............................................... 1079 4. Origin and Use .................................................... 1080 5. Enforcement Patterns .............................................. 1081 6. Tbe Epitome of Irrationality: Virginia's 1958 Amendment .......... 1082 VII. MARIJUANA USERS IN THE COURTS: 1930-1965 .............................. 1083 A. Statutory Fantasies: Tbe Complications of Federal Legislation ........ 1083 1. Quadruple "Jeopardy" and tbe "Killer Weed" ...................... 1083 2. Statutory Presumptions ............................................ 1085 B. Attacks on State Legislation .......................................... 1087 C. Procedural Defenses and Entrapment ................................. 1088 1. Searcb and Seizure ................................................ 1089 2. Entrapment ............................... .. 1091 D. Tbe Pro Forma Trial ................................................. 1093 VIII. THE PUBLIC DISCOVERS THE TRUTH ABOUT MARIJUANA •••••••••••••••••••••• 1096 A. Marijuana and tbe Masses ............................................ 1096 B. Enforcement of tbe Marijuana La·ws: 1960-1970 ........................ 1100 C. Emergence of Medical Opinion ....................................... 1l0I 1. Researcb Obstacles ................................................. 1102 2. Current Medical Knowledge ....................................... 1104 (a) Tbe Mytbs .................................................... 1104 (b) Pbysical Effects ............................................... 1107 (c) Psycbomotor Effects ........................................... 1107 (d) Psycbological Effects .......................................... 1108 IX. MARIJUANA LEGISLATION CLASHES WITH JUDICIAL SKEPTICISM AND EMERGING VALUES-PIECEMEAL JUDICIAL RESPONSE: 1965-1970 ........................ ll10 A. Mu'tiple Offenses: Untying tbe Statutory Knots ...................... llll 1. Federal Developments ............................................. llll 2. State Developments .. .............................................. Ill4 B. Procedural Objections to Enforcement Practices ...................... Ill6 1. Searcb and Seizure ................................................. Ill6 2. Entrapment ....................................................... ll19 3. Otber Prosecution Practices ....................................... ll20 C. SUfficiency of Evidence ............................................... 1121 D. Sanction ............................................................. 1123 X. THE HEART OF THE MATTER-SUBSTANTIVE CONSTITUTIONAL CHAllENGES TO THE MARIJUANA LAWS: 1965-1970 ............................................. 1125 A. Tbe Burden of Justification: Tbe Importance of Having a Presumption on Your Side ......................................................... 1126 974 V irginia Law Review [Vol. 56.:971 PAGE 1. Du~ Process and Equal Protection: Rationality of the Classification.. 1128 2. Cruel and Unusual Punishment: Rationality of the Sanction ........ 1133 B. Should the Burden Be Shifted?-Marijuana and Fundamental Rights ..... 114Q 1. The Robinson-Powell Argument .................................. 1141 2. Free Exercise of Religion .........................................
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