The Relationship Between Cannabis and Law

“Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse”

– U.S. Controlled Substances Act

“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.  You understand what I’m saying?  We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.  We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news.  Did we know we were lying about the drugs?  Of course, we did.” 

– John Ehrlichman, White House Domestic Affairs Advisor (1969-1973)

Cannabis Law in The United States

As an attorney who focuses on cannabis law, I’m often asked why I am so passionate about a plant which the U.S. government has classified as a Schedule I controlled substance, a classification supposedly reserved for the most dangerous and addictive drugs out there.  “They wouldn’t have made it illegal if it wasn’t dangerous, right?” is a question I hear all too often.  Answering this question requires us to take a bit of a deep dive into American history, circa 1900.

At the onset of the 20th century, cannabis extract was a well-known and widely used medicine in the United States.  At the time, pharmaceutical products were available without a prescription, almost entirely unregulated, frequently mislabeled and occasionally found to contain dangerous adulterants.  In order to address these problems, Congress passed the Pure Food and Drug Act of 1906 which established the first classifications and regulations for medicinal drugs.  Many states, however, felt that the federal legislation did not go far enough to protect the public and began to pass their own, more restrictive laws regarding pharmaceuticals, including cannabis.  These laws, well-intentioned as they may have been, laid the groundwork for what was to come.

Cannabis Law History

By 1910, tensions in the western and southwestern parts of the country were on the rise as Mexican immigrants, fleeing civil war at home, began to settle in the region in larger and larger numbers.  As jobs became more and more scarce, anti-immigrant sentiment grew, and stories about immigrants using cannabis, which by then was being called ‘marihuana’, began to appear in the media with greater frequency.  There is considerable debate amongst historians about how prevalent the use of marijuana actually was amongst these immigrants, but that didn’t stop the accusations from becoming a rallying cry for the anti-immigration movement.  Even the federal government bought into the narrative.  In 1917, the U.S. Treasury Department published a report noting that “…its chief concern was the fact that Mexicans and sometimes Negroes and lower-class whites smoked marijuana for pleasure, and that they could harm or assault upper-class white women while under its influence”.  By 1931, twenty-one states had outlawed the use of marijuana.

In 1930, Harry J. Anslinger was appointed as the first Commissioner of the recently formed Federal Bureau of Narcotics.  The newly appointed commissioner wasted no time in making his priorities, and his unabashed racism, well known.  In the words of Mr. Anslinger, “There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others”.  Commissioner Ansligner was also fond of stating that, “reefer makes darkies think they’re as good as white men”.  Unfortunately, Anslinger’s racist and fear-mongering tactics were rather effective in shaping public opinion about cannabis.  The final blow came in 1937 with the passage of the “Marihuana Tax Act”, a law which effectively outlawed cannabis throughout the entire country.

Cannabis and The Controlled Substances Act

For the next thirty years, marijuana remained illegal and was used as an excuse by law enforcement to primarily target Black jazz musicians and other “undesirables”.  In 1969, the U.S. Supreme Court held that the Marihuana Tax Act was unconstitutional after it was challenged by Dr. Timothy Leary.  In direct response to the Court’s decision, Congress passed the Controlled Substances Act in 1970 and classified marijuana as a “Schedule I” controlled substance.  This classification was reserved for only the most dangerous drugs, those with no medical use and a “high potential of abuse”.  This classification ensured that marijuana would remain illegal across the United States, and that possession or use would remain a serious criminal offense.  President Richard Nixon saw the Controlled Substances Act as a convenient way to target the anti-war and African American organizations which he despised, going as far as to declare cannabis “Public Enemy #1”.  Once again, marijuana prohibition became a tool to vilify and target minority communities and political opponents.  The seeds for the modern-day “War on Drugs” had been planted and were rapidly beginning to sprout.

The 1980s brought the Reagan Administration and the era of mass incarceration.  During this decade Congress passed both the “Comprehensive Crime Control Act” of 1984 and the “Anti-Drug Abuse Act” of 1986.  These two laws dramatically increased the penalties for marijuana possession and established mandatory minimum sentencing for drug offenses.  Under these new laws, possession of 100 marijuana plants received the same penalty as 100 grams of heroin.  During the 1980s an average of 400,000 marijuana-related arrests were made every year, a disproportionate percentage of which were young Black and Latino men.  Since the Controlled Substance Act was passed in 1970, well over 20 million Americans have been subject to arrest for violating marijuana laws.

Today, eleven states and the District of Columbia have legalized marijuana for adult-use, and an additional 33 have legalized the medical use of cannabis to varying degrees.  Despite this, marijuana remains a Schedule I controlled substance under federal law, and marijuana arrests and convictions continue to disproportionately impact minority communities.  During the first six months of 2019, Black and Latino New Yorkers accounted for 94% of all low-level marijuana arrests made in New York City.  The fact is, our nation’s draconian drug laws have caused more pain and done more damage to minority communities and families than the actual drugs could ever have.  

Thankfully, society is starting to come around.  As more and more states legalize marijuana for medicinal and adult-use, more and more people are waking up to the fact that they have been lied to about marijuana, along with pretty much all other drugs, for most of their lives.  Despite the dire warnings of the prohibitionists, the sky has not fallen, civilization has not collapsed, and there still has not been a single death attributed to marijuana use alone.  So, the next time someone asks you,” Isn’t marijuana illegal because it’s dangerous?’.  Just say no.

Written by Timothy Fair