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The Report of the National Commission on Marihuana and Drug AbuseI. Control of Marihuana, Alcohol and TobaccoTIGHTENING THE LAW
After the passage of the Marihuana Tax Act, the FBN began with a four-pronged
enforcement policy:
- Control of cultivation of the plant for legitimate purposes and eradication of wild
growth;
- Pacification of marihuana-sensationalism in the press;
- Education of the federal judiciary toward strict application of the law; and
- Allocation of federal enforcement resources toward major trafficking rather than petty
possession offenses.
The scope of the plant’s growth, the transportability of the seeds, the dormancy of the
seeds, and the lack of a highly efficient herbicide militated against a comprehensive
eradication program. The cost of such a program would have been substantial even if
success were assured. No active effort was undertaken to conduct an acre-by-acre survey of
the United States.The eradication „program“ became simply a matter of reaction to routine
information-letters from farmers who had identified the plant and discoveries of acreage
by law enforcement agents.As the Bureau’s interest in marihuana subsided during the 1940’s, so did the effort to
eradicate the wild growth. In fact, the Federal Government encouraged the cultivation of
hemp during the war, even though an inactive strain had not been developed, because
sources of sisal rope had been severed by Japan’s occupation of the Philippines. All over
the United States, the weed remained plentiful and largely undetected.After passage of the Act, Commissioner Anslinger directed his agents to discourage
local officials from playing up any alleged involvement of marihuana with crime to the
press. On April 11, 1938, the Commissioner told his New York District Supervisor that:
Our present policy is to discourage undue emphasis on marihuana for the reason that
in some sections of the country recently press reports have been so exaggerated that
interest in the subject has become almost hysterical and we are therefore trying to mold
public opinion along more conservative and saner lines (Anslinger, April 11, 1938).
Immediately following passage of the Act, the FBN also directed an
„educational“ effort toward the federal judiciary to emphasize the need for
severe sentences for marihuana offenders. The Bureau also concentrated on the stifling of
suppliers, large interstate traffickers, and smugglers. Small possession cases were to be
left to local authorities.Several factors, however, served to frustrate this policy. First, marihuana traffic was
highly disorganized and there was no national or regional network as such (New York City,
1945). Second, use was still concentrated geographically and socioeconomically and was not
a major enterprise. Finally, during the war years, the Bureau abandoned responsibility for
most marihuana law enforcement to the states, where the disorganized traffic and regional
use could be most effectively controlled. The FBN chose instead to concentrate on the
opiates.After the relative quiet of the war years there was apparently a significant increase
in narcotic drug abuse in the late, 1940’s and the public began to be concerned with the
spread of narcotic addiction, particularly among young persons. Congressional furor was
aroused by the assertion that the use of marihuana inevitably led to the use of these
harder drugs, particularly heroin.
The new legislation came in two waves. In 1951, Congress passed the Boggs Act (Boggs
Act, November 2, 1951: 767) which increased penalties for all drug violators. For the
first time in federal drug legislation marihuana and the narcotic drugs were lumped
together, since the Act provided uniform penalties for the Narcotic Drugs Import and
Export Act (Boggs Act, November 2, 1951: 767) and the Marihuana Tax Act (21 USC 1964). The
states followed the federal lead. Then, in 1956, Congress passed the Narcotic Control Act,
escalating the penalties still further. Once again the states responded in kind.The hearings before the Subcommittee of the House Ways and Means Committee and the
floor debate indicate that the Boggs Act was motivated by a. perceived increase in
narcotic use in the period 1948 to 1951 (Kefauver Committee Hearings, 1951: 240-241; New
York Times, 1951).Representative Boggs, speaking during the Congressional debate on his bill, enunciated
a concern which was reflected in many other quarters. After noting that there had been a
24% increase in arrests for narcotic violations between 1949 and 1950 and a 70% increase
between 1948 and 1950, Representative Boggs stated:
The most shocking part about these figures is the fact that there has been an
alarming increase in drug addiction among younger persons. In the first six months of
1946, the average age of addicted persons committed . . . at Lexington, Kentucky, was 37.5
years. Only three patients were under the age of 21. During the first six months of 1950,
only four years later, the average had dropped to 26.7 years and 766 patients were under
the age of 21… (Congressional Record, 1951: 8197).
Representative Boggs and others supported the mandatory minimum sentences for drug
peddlers because they felt that some federal judges had been lax in enforcing the narcotic
laws (Congressional Record, 1951: 8197, 8207, 821 1). Public opinion was overwhelming that
harsh sentences, including the death penalty for peddling narcotics to minors, would
strangle the drug monster then stalking the American youth (Kefauver Committee Hearings,
1951: 430-431).The Boggs Act was directed in large part at the federal judiciary since a key provision
removed judicial discretion in sentencing by providing that upon conviction for a second
or subsequent offense the imposition or execution of the sentence could not be suspended
nor probation granted.There had been no concerted lobbying effort by the judicial community during the
legislative process; however, James V. Bennett, Director of the U.S. Bureau of Prisons,
aroused the judges in the Fifth U.S. Circuit District into eventually recommending the
amendment of the law to remove provisions for mandatory minimum sentences (Yew Orleans
Statesman, May 28, 1954; New Orleans Times-Picayune, May 28, 1954).Even while the Boggs Act was still pending in Congress, the Bureau of Narcotics
encouraged the states to modify their existing narcotic and marihuana legislation to enact
„penalties similar to those provided in the Boggs Bill [which] would be of material
assistance in the fight against the narcotic traffic“ (Federal Bureau of Narcotics,
1950: 6).Seventeen states and the territory of Alaska responded by passing „little Boggs
Acts“ by 1953 and 11 other states increased their penalties by 1956. Two of the
latter group, Ohio and Louisiana, enacted penalty provisions which were substantially more
severe than those passed previously in any jurisdiction (Federal Bureau of Narcotics,
1956: 28).The Ohio law, approved June 16,1955, provided a 20 to 40 year sentence for the sale of
narcotic drugs. The Louisiana measure, adopted the following year, provided severe prison
sentences without parole, probation, or suspension for the illegal sale, possession, or
administration of a narcotic drug. The sentences ranged from a five-year minimum to a
99-year maximum (Federal Bureau of Narcotics, 1951: 8).Underlying the inclusion of marihuana in the scheme of increased penalties was the
progression theory. In the Boggs hearings many witnesses testified to the link between
marihuana use and ultimate heroin addiction. Commissioner Anslinger, for example,
testified:
The danger is this: Over 50 percent of these young addicts started on marihuana
smoking. They started there and graduated to heroin; they took the needle when the thrill
of marihuana was gone (Boggs Act Hearings, 1951: 206).
Representative Boggs himself summed up the stepping-stone thesis in House floor debate:
Our younger people usually start on the road which leads to drug addiction by
smoking marihuana. They then graduate into narcotic drugs-cocaine, morphine, and heroin.
When these younger persons become addicted to the drugs, heroin, for example, which costs
from $8 to $15 per day, they very often must embark on careers of crime … and
prostitution … in order to buy the supply which they need (Congressional Record,
1951: 8197-8198).
The stepping-stone theory thus supplanted the older hypotheses which had linked
marihuana to addiction, insanity and violent crime.In a paper filed as an exhibit to the hearings on the Boggs Act, Dr. Harris Isbell,
Director of Research at the Public Health Service Hospital in Lexington, Kentucky, stated
that marihuana was not physically addictive, although he paid lip service to the
psychological dependence hypothesis (Boggs Act Hearings, 1951: 147-148).Acknowledging the possibility of „temporary psychosis“ in „predisposed
individuals,“ Isbell otherwise disputed the crime and insanity thesis. Before the
Kefauver Committee in the Senate he testified that:[M]arihuana smokers generally are mildly intoxicated, giggle, laugh, bother no one,
and have a good time. They do not stagger or fall, and ordinarily will not attempt to harm
anyone. It has not been proved that smoking marihuana leads to crimes of violence or to
crimes of a sexual nature. Smoking marihuana has no unpleasant after-effects, no
dependence is developed on the drug, and the practice can easily be stopped at any time.
In fact, it is probably easier to stop smoking marihuana cigarettes than tobacco
cigarettes (Kefauver Committee Hearings, 1951: 119).
Some observers felt that the narcotics problem had disappeared almost entirely from the
national scene after the Boggs Act was passed. Nevertheless, state and federal law
enforcement authorities, armed with data suggesting that the strengthening of the drug
laws had at least halted the increase in drug use, pressed for further increases in
penalties in order to root out the drug menace entirely (Federal Bureau of Narcotics.
1956: 28). Without extended debate or widened public interest, Congress passed the
Narcotic Control Drug Act in 1956 (Daniel Committee Hearings, 1955: 57).There was less attention paid to marihuana during Congressional debate in 1956 than had
been the case in 1951. But, the established precedent of classifying marihuana with hard
narcotics continued and resulted in a proliferation of marihuana offenses and a, further
increase in penalties based on the theory that the end of the American narcotics
experience could thereby be assured.However, efficacy of still higher penalties was not uniformly accepted among law
enforcement officials; the Deputy Commissioner of the FBN suggested that more severe
penalties might press grand juries not to indict and the petty juries not to convict in
drug cases. Others rejected this view and felt strongly that more severe penalties were
imperative if society was to be rid of its present peddlers and if new entrants into the
narcotics business were to be deterred (Good, July 31, 1954).Among congressmen considering the Bill, there was no dissent from the proposition that
harsher penalties were the means to eliminate the illicit use and sale of all drugs
(Congressional Record. 1956: 10689).In addition to facilitating enforcement of narcotics laws through a number of ancillary
provisions, the Narcotics Control Act of 1956 established the following penalties: |
