On November 2, Californians will vote on Prop 19, a ballot initiative that would legalize marijuana in the state.

Recent polling shows that Prop 19 will likely be the best chance in decades to end marijuana prohibition in a state. But, as Californians get closer to ending the war on marijuana users, let’s look at how and why marijuana was made illegal to begin with.

In the early 1900s, most Americans had never heard of marijuana (usually spelled marihuana then and often referred to as cannabis or hemp). Even as more Mexicans immigrated into the western and southern states, most Americans had never used marijuana and did not know anything about it. However, in 1915, Utah became the first state to prohibit marijuana. By 1931, 22 states had passed laws restricting the sale of marijuana, most of them west of the Mississippi.

Why and how did so many states pass marijuana prohibition laws, when most people didn’t even know what it was?

Devil's Harvest, 1936 | Image by Marxchivist

After conducting a survey of newspaper articles from western states in the 1910s and 1920s, Richard Bonnie and Charles Whitebread concluded, “[Marijuana’s] Mexican use pattern was ordinarily enough to warrant its prohibition, and that whatever attention such legislative action received was attended by sensationalist descriptions of crimes allegedly committed by Mexican marijuana users.”

The Montana Standard covered the debate on the 1929 proposed ban in Montana and reported, “‘When some beet field peon takes a few rares of this stuff,’ explained Dr. Fred Fulsher of Mineral County, ‘He thinks he has just been elected president of Mexico so he starts out to execute all his political enemies.’”

In 1930, the Federal Bureau of Narcotics was created within the Treasury Department. President Herbert Hoover appointed Henry Anslinger to head the new agency. Anslinger led the crusade against marijuana by playing on citizens’ racist fears, usually trying to associate violence with it as well.

Here are just a few quotes regarding marijuana attributed to Anslinger:

• “Reefer makes darkies think they’re as good as white men.”
• “Marihuana leads to pacifism and communist brainwashing”
• “You smoke a joint and you’re likely to kill your brother.”
• “Marijuana is the most violence-causing drug in the history of mankind.”

He found a powerful ally in his crusade in William Randolph Hearst – who owned a vast series of newspapers across the country. It’s generally accepted that Hearst wanted marijuana banned for financial and racist reasons. Hearst had invested heavily in the timber industry, particularly northwestern forest paper mills. However, the cannabis plant provided a more economical raw material for the manufacture of paper, so in order to protect his investment from the competition of cannabis paper, he wanted the plant banned. Additionally, he is suspected of being prejudiced against Mexicans, at least partly because he lost 800,000 acres of timberland to Pancho Villa during the Mexican revolution. Stoking whites’ racist fears against Mexicans and hyping reports of violence was also good for business. (Fox News didn’t invent that business strategy.)

After years of Anslinger and Hearst spreading their racist, wildly exaggerated, and baseless stories of dangers of marijuana use, eventually it was accepted by Congress that this was a problem in need of a solution. So, in 1937, Congress considered the Marihuana Tax Act. Anslinger brought a file full of horrifying stories of the dangers of marijuana use, many from articles published in Hearst’s newspapers, to the House Ways and Means Committee hearing on the bill.

During his testimony, Anslinger relayed horrifying stories, such as, “Colored students at the University of Minnesota partying with female students (white) smoking and getting their sympathy with stories of racial persecution. Result pregnancy.” He also told the story of a 21-year-old in Florida who murdered his entire family with an ax after he had smoked marijuana. And the case in Chicago, in which “two boys murdered a policeman while under the influence of marihuana.”

Hearst’s and Anslinger’s propaganda was so effective that when Dr. William C. Woodward, Legislative Counsel of the American Medical Association, testified against the bill, legislators attacked him and accused him of simply being an obstructionist. Dr. Woodward was undeterred, though, in his criticism, stating:

“We are referred to newspaper publications concerning the prevalence of marihuana addiction. We are told that the use of marihuana causes crime. But yet no one has been produced from the Bureau of Prisons to show the number of prisoners who have been found addicted to the marihuana habit. An informed inquiry shows that the Bureau of Prisons has no evidence on that point. You have been told that school children are great users of marihuana cigarettes. No one has been summoned from the Children’s Bureau to show the nature and extent of the habit, among children. Inquiry of the Children’s Bureau shows that they have had no occasion to investigate it and know nothing particularly of it. Inquiry of the Office of Education … indicates that they have had no occasion to investigate and know nothing of it.”

When the bill went to the full House, the AMA’s position was misrepresented.

Rep. Bertrand Snell: “Mr. Speaker, what is this bill about?”

Speaker Rayburn: “I don’t know. It has something to do with a thing called marihuana. I think it’s a narcotic of some kind.”

Rep. Snell: “Mr. Speaker, does the American Medical Association support this bill?”

Rep. Fred Vinson, a member on the Ways and Means Committee: “Their Doctor Wentworth [sic] came down here. They support this bill 100 percent.”

The bill passed the House without a recorded vote. There was no debate or a recorded vote in the Senate either. President Roosevelt signed it, and with that, the first national regulation on marijuana was law.

From a September, 2010 Poll | Image by blog.norml.org

A bit of Constitutional history is necessary here to understand the federal government’s role in prohibiting marijuana at this time. The 18^th Amendment was necessary to ban alcohol sales and production at a federal level in 1919 because the Supreme Court had ruled that Congress did not have the constitutional authority to pass laws regulating local affairs, and alcohol, drug, and medicine laws were considered local affairs at the time.

However, Congress did (and does) have the constitutional authority to tax drugs. Under the Marihuana Tax Act, marijuana was still legal, but one needed to purchase a tax stamp before it could be transferred; the cost was $100 per ounce. Failure to pay the tax was a federal crime. The intended purpose was not to collect revenue, but to discourage production and use of marijuana. (In 1914, Congress passed the Harrison Act, which similarly taxed the manufacture, sale, and distribution of opiates and cocaine.) Several states still have similar laws in effect today, in addition to criminal penalties for possessing marijuana.

In the decades following the passage of the Marihuana Tax Act, the Bureau of Narcotics put pressure on states to pass harsher and harsher marijuana laws. Throughout the 1950’s there was particularly an increase in this legislation and Virginia was one of the states that led the way.

In 1952, both chambers of the Virginia General Assembly unanimously passed a bill to increase the penalties on marijuana sales. The bill reclassified marijuana so it was included in the state’s general narcotics control law, along with heroin, morphine, and cocaine. For a first offense of selling marijuana, the penalty was three to five years in jail and a fine of up to $1,000. For a second offense, someone selling marijuana faced a sentence of five to 10 years, and a fine of up to $2,000. For third and succeeding offenses, it was 10 to 20 years in jail. The 1952 Act also made it a felony to sell, barter, peddle, exchange or otherwise dispense marijuana or any other narcotic drug to a minor. This legislation also created a new, separate crime for selling marijuana to a minor. Any person found guilty of such offense faced a mandatory 10-30 years in jail.

In 1958, Virginia’s marijuana laws got even more draconian. The Uniform Drug Act was amended to make “possession of illegally acquired narcotic drugs [which included marijuana] in any quantity greater than 25 grains, if in solid form, or eight ounces, if in liquid form,” a crime punishable by 20 to 40 years in jail! This made the penalty for illegally possessing marijuana substantially more severe than the penalty for selling it, even to a minor. It passed both houses of the General Assembly with only one vote against it. Apparently Virginia citizens were so deeply concerned about marijuana use and so grateful for these new penalties that, according to Whitebread, this bill was not mentioned once in the Richmond Times-Dispatch between February 14 – April 7, 1958.

Prior to 1970, there was not a comprehensive drug law at the national level. Instead, there were more than 50 different laws regulating the sale, manufacture, distribution, and use of various drugs. That changed when Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970. This law sought to combine the regulation of all drugs, marijuana included, in one place in the law (alcohol and tobacco were not, and still are not, included, though). Title II of this Act was called the Controlled Substances Act (CSA). The new law was enforced by the Bureau of Narcotics and Dangerous Drugs (BNDD), the predecessor to the DEA, within the Department of Justice.

Medical Uses of Marijuana | Image 3DScience.com

Perhaps the most important part of the CSA is that it established five schedules to classify controlled substances according to how dangerous they are, their potential for abuse and addiction, and whether they possess legitimate medical value. Schedule I drugs are considered extremely dangerous, with a high potential for abuse, and no accepted medical value. Marijuana was placed in Schedule I temporarily.

Part F of the Comprehensive Drug Abuse Prevention and Control Act of 1970 established the National Commission on Marijuana and Drug Abuse, commonly referred to as the Shafer Commission after its chairman, Raymond P. Shafer. The purpose of the commission was to study marijuana abuse and make recommendations to Congress as to the appropriate schedule in which to place marijuana. The commission’s members were appointed by President Nixon, who thought that marijuana was a scourge.

In March 1972, after conducting extensive research, the Shafer Commission recommended that there should be no penalties for possessing a personal amount of marijuana, and “casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration not involving profit would no longer be an offense.” This would have been a major change in federal law, because the current penalties were up to a year in prison for possession of marijuana for the first offense and up to two years for the second offense. Their report was completely ignored and no change in the classification of marijuana, or in the penalties for possessing it, was made.

Almost 40 years later, the CSA is still the controlling law for regulating and prohibiting drugs. And marijuana is still classified as a Schedule I drug, along with heroin and LSD. Cocaine, morphine, and methamphetamines are Schedule II drugs.

Despite the federal ban on all possession of marijuana, each state is still free to set whatever state-level penalties they wish. Indeed, 99% of all marijuana arrests in the U.S. occur at the state and local level. Therefore, state laws are far more important than the federal law when it comes to the practical effect on marijuana users. It’s generally accepted that federal prosecutors won’t pursue cases involving less than 100 marijuana plants. It is because of this dual system of federalism that 14 states have removed penalties for seriously ill patients who use marijuana medically.

In Virginia, the penalties for marijuana possession have been eased since 1958. Currently, for the first offense, possession of marijuana is a misdemeanor punishable by up to 30 days in jail and a fine up to $500; for subsequent offenses, the punishment is up to one year in jail and a $2,500 fine. Practically, though, the vast majority of people arrested for simple possession don’t go to jail in Virginia. They usually receive probation and/or community service.

Virginia does not have the ballot initiative process like California, so the General Assembly will have to change our marijuana laws. It is extremely unlikely that Virginia’s legislators will seriously consider ending marijuana prohibition outright, but given the fact that the state has had to make some hard budget choices recently, this is a great opportunity to talk to your legislators about eliminating criminal penalties for possession of a small amount of marijuana.