Vinogradoff Essays In Legal History Of Cannabis

The legal history of cannabis in the United States pertains to the regulation of cannabis (legal term marijuana or marihuana) for medical, recreational, and industrial purposes in the United States. Increased restrictions and labeling of cannabis as a poison began in many states from 1906 onward, and outright prohibitions began in the 1920s. By the mid-1930s cannabis was regulated as a drug in every state, including 35 states that adopted the Uniform State Narcotic Drug Act.[1] The first national regulation was the Marihuana Tax Act of 1937.[2]

Cannabis was officially outlawed for any use (medical included) with the passage of the Controlled Substances Act (CSA) of 1970. Multiple efforts to reschedule cannabis under the CSA have failed, and the U.S. Supreme Court has ruled in United States v. Oakland Cannabis Buyers' Cooperative and Gonzales v. Raich that the federal government has a right to regulate and criminalize cannabis, even for medical purposes. Despite this, states and other jurisdictions have continued to implement policies that conflict with federal law, beginning with the passage of California's Proposition 215 in 1996. By 2016 a majority of states had legalized medical cannabis,[3] and in 2012 the first states legalized recreational use.

Early history[edit]


In 1619, King James I decreed that the American colonists of Jamestown would need to step up efforts to do their fair share towards supporting England. The Virginia Company enacted the decree, asking Jamestown's land owners to grow and export 100 hemp plants to help support England's cause. Later the colonists would grow it to support its expansion in the Americas.[4][5]George Washington grew hemp at Mount Vernon as one of his three primary crops. The use of hemp for rope and fabric later became ubiquitous throughout the 18th and 19th centuries in the United States. Medicinal preparations of cannabis became available in American pharmacies in the 1850s following an introduction to its use in Western medicine by William O'Shaughnessy a decade earlier in 1839.[6]

Early pharmaceutical and recreational use[edit]

Around the same time, efforts to regulate the sale of pharmaceuticals began, and laws were introduced on a state-to-state basis that created penalties for mislabeling drugs, adulterating them with undisclosed narcotics, and improper sale of those considered "poisons". Poison laws generally either required labels on the packaging indicating the harmful effects of the drugs or prohibited sale outside of licensed pharmacies and without a doctor's prescription. Those that required labeling often required the word "poison" if the drug was not issued by a pharmacy. Other regulations were prohibitions on the sale to minors, as well as restrictions on refills. Some pharmaceutical laws specifically enumerated the drugs that came under the effect of the regulations, while others did not—leaving the matter to medical experts. Those that did generally included references to cannabis, either under the category of "cannabis and its preparations" or "hemp and its preparations."[7]

A 1905 Bulletin from the United States Department of Agriculture lists twenty-nine states with laws mentioning cannabis. Eight states are listed with "sale of poisons" laws that specifically mention cannabis: North Carolina, Ohio, Wisconsin, Louisiana, Vermont, Maine, Montana; and the District of Columbia. Among those states that required a prescription for sale were Wisconsin and Louisiana. Several "sale of poison" laws did not specify restricted drugs, including in Indiana, Rhode Island, Hawaii, Nebraska, Kentucky, Mississippi, and New York. Many states did not consider cannabis a "poison" but required it be labeled.[8]

In New York, the original law did enumerate cannabis, and was passed in 1860 following a string of suicides allegedly involving the substances later categorized as poisons. The first draft of the bill 'An act to regulate the sale of poisons' prohibited the sale of cannabis—as with the other substances—without the written order of a physician.[9] The final bill as passed allowed the sale without a prescription so long as the purpose to which it was issued and name and address of the buyer was recorded, and in addition, all packaging of such substances—whether sold with a prescription or not—had to have the label "poison" on them in uppercase red letters. In 1862, the section which enumerated the substances was repealed with an amendatory act, though cannabis was still required to be labeled.[10]

In some states where poison laws excluded cannabis, there were nonetheless attempts to include it. A bill introduced in 1880 in the California state legislature was titled 'An act to regulate the sale of opium and other narcotic poisons' and would have forbidden anyone to keep, sell, furnish, or give away any "preparations or mixtures made or prepared from opium, hemp, or other narcotic drugs" without a doctor's prescription at a licensed store. That bill was withdrawn in favor of one specifically aimed at opium, though further bills including hemp-based drugs were introduced in 1885 and in 1889.[6]

Background to later restrictions (late 1800s)[edit]

As early as 1853, recreational cannabis was listed as a "fashionable narcotic".[11] By the 1880s, oriental-style hashish parlors were flourishing alongside opium dens, to the point that one could be found in every major city on the east coast. It was estimated there were around 500 such establishments in New York City alone.[12]

An article in Harper’s Magazine (1883), attributed to Harry Hubbell Kane, describes a hashish-house in New York frequented by a large clientele, including males and females of "the better classes," and further talks about parlors in Boston, Philadelphia and Chicago.[6] Hemp cigarettes were reported to be used by Mexican soldiers early as 1874.[13]

Criminalization (1900s)[edit]

Strengthening of poison laws (1906–1938)[edit]

The Pure Food and Drug Act was then passed by the United States Congress in 1906 and required that certain special drugs, including cannabis, be accurately labeled with contents. Previously, many drugs had been sold as patent medicines with secret ingredients or misleading labels.[14] Even after the passage of regulations, there continued to be criticism about the availability of narcotics and around 1910 there was a wave of legislation aimed to strengthen requirements for their sale and remove what were commonly referred to as "loopholes" in poison laws. The new revisions aimed to restrict all narcotics, including cannabis, as poisons, limit their sale to pharmacies, and require doctor's prescriptions. The first instance was in the District of Columbia in 1906, under "An act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for other purposes". The act was updated in 1938 to the Federal Pure Food, Drug, and Cosmetics Act of 1938 which remains in effect even today, creating a legal paradox for federal sentencing. Under this act, the framework for prescription and non-prescription drugs and foods are set, along with standards as well as the enforcing agency, the Food and Drug Administration (FDA). "Goods found in violation of the law were subject to seizure and destruction at the expense of the manufacturer. That, combined with a legal requirement that all convictions be published (Notices of Judgment), proved to be important tools in the enforcement of the statute and had a deterrent effect upon would-be violators." Marijuana remains under this law defined as a "dangerous drug".[15]

Further regulation of cannabis followed in Massachusetts (1911), New York (1914), and Maine (1914). In New York, reform legislation began under the Towns-Boylan Act, which targeted all "habit-forming drugs", restricted their sale, prohibited refills in order to prevent habituation, prohibited sale to people with a habit, and prohibited doctors who were themselves habituated from selling them.[16] Shortly after, several amendments were passed by the New York Board of Health, including adding cannabis to the list of habit-forming drugs.[17]

A New York Times article noted on the cannabis amendment:

The inclusion of Cannabis indica among the drugs to be sold only on prescription is common sense. Devotees of hashish are now hardly numerous here enough to count, but they are likely to increase as other narcotics become harder to obtain.[18]

In the West, the first state to include cannabis as a poison was California. The Poison Act was passed in 1907 and amended in 1909 and 1911, and in 1913 an amendatory act was made to make possession of "extracts, tinctures, or other narcotic preparations of hemp, or loco-weed, their preparations and compounds" a misdemeanor.[6] There is no evidence that the law was ever used or intended to restrict pharmaceutical cannabis; instead it was a legislative mistake, and in 1915 another revision placed cannabis under the same restriction as other poisons.[6] In 1914, one of the first cannabis drug raids in the nation occurred in the Mexican-American neighborhood of Sonoratown in Los Angeles, where police raided two "dream gardens" and confiscated a wagonload of cannabis.[19]

Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927);[20] Louisiana (1927); and Colorado (1929).[21]

One source of tensions in the western and southwestern states was the influx of Mexicans to the U.S. following the 1910 Mexican Revolution.[22] Many Mexicans also smoked marijuana to relax after working in the fields.[23] It was also seen as a cheaper alternative to alcohol, due to Prohibition (which went into effect nationally in 1920).[24] Later in the 1920s, negative tensions grew between the small farms and the large farms that used cheaper Mexican labor. Shortly afterwards, the Great Depression came which increased tensions as jobs and resources became more scarce. Because of that, the passage of the initial laws is often described as a product of racism, yet the use of hashish by Near Eastern immigrants was also cited, as well as the misuse of pharmaceutical hemp, and the laws conformed with other legislation that was being passed around the country. Mexico itself had passed prohibition in 1925, following the International Opium Convention (see below).[25]

International Opium Convention (1925)[edit]

In 1925, the United States supported regulation of Indian hemp, also known as hashish, in the International Opium Convention.[26] The convention banned exportation of "Indian hemp", and the preparations derived therefrom, to countries that had prohibited its use and required importing countries to issue certificates approving the importation and stating that the shipment was required "exclusively for medical or scientific purposes". The convention did not ban trade in fibers and other similar products from European hemp, traditionally grown in the United States. According to the 1912 edition of the Swedish encyclopedia Nordisk familjebok, the European hemp grown for its fibers lacks the THC content that characterizes Indian hemp.[27]

Uniform State Narcotic Drug Act (1925–1932)[edit]

The Uniform State Narcotic Drug Act, first tentative draft in 1925 and fifth final version in 1932, was a result of work by the National Conference of Commissioners on Uniform State Laws. It was argued that the traffic in narcotic drugs should have the same safeguards and the same regulation in all of the states. The committee took into consideration the fact that the federal government had already passed the Harrison Act in 1914 and the Federal Import and Export Act in 1922. Many people assumed that the Harrison Act was all that was necessary. The Harrison Act, however, was a revenue-producing act and, while it provided penalties for violation, it did not give the states themselves authority to exercise police power in regard to seizure of drugs used in illicit trade, or in regard to punishment of those responsible. The act was recommended to the states for that purpose.[28] As a result of the Uniform State Narcotic Act, the Federal Bureau of Narcotics encouraged state governments to adopt the act. By the middle of the 1930s all member states had some regulation of cannabis.[29][30][31]

Federal Bureau of Narcotics (1930)[edit]

The use of cannabis and other drugs came under increasing scrutiny after the formation of the Federal Bureau of Narcotics (FBN) in 1930,[32] headed by Harry J. Anslinger as part of the government's broader push to outlaw all recreational drugs.

When the present administration took office ten countries had ratified the Geneva Narcotic Limitation Convention. The United States was one of these ten. ... It was my privilege, as President, to proclaim, on that day, that this treaty had become effective throughout the jurisdiction of the United States. ... On Jan. 1, 1933, only nine nations had registered their ratification of the limitation treaty. On Jan. 1, 1935, only nine States had adopted the uniform State statute. As 1933 witnessed ratification of the treaty by thirty-one additional nations, so may 1935 witness the adoption of the uniform drug act by at least thirty-one more states, thereby placing interstate accord abreast of international accord, to the honor of the legislative bodies of our States and for the promotion of the welfare of our people and the peoples of other lands.

— Franklin D. Roosevelt, March 1935 in a radio message read by United States Attorney General, Homer Stille Cummings, [33]

Anslinger claimed cannabis caused people to commit violent crimes and act irrationally and overly sexual. The FBN produced propaganda films promoting Anslinger's views and Anslinger often commented to the press regarding his views on marijuana.[34]

The 1936 Geneva Trafficking Conventions[edit]

In 1936 the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs (1936 Trafficking Convention) was concluded in Geneva. The U.S., led by Anslinger, had attempted to include the criminalization of all activities in the treaty – cultivation, production, manufacture and distribution – related to the use of opium, coca (and its derivatives), and cannabis, for non-medical and non-scientific purposes. Many countries opposed this and the focus remained on illicit trafficking. Article 2 of the Convention called upon signatory countries to use their national criminal law systems to "severely" punish, "particularly by imprisonment or other penalties of deprivation of liberty", acts directly related to drug trafficking.[35] The U.S. refused to sign the final version because it considered the convention too weak, especially in relation to extradition, extraterritoriality and the confiscation of trafficking profits.[36]

Marihuana Tax Act (1937)[edit]

Main articles: Marihuana Tax Act of 1937 and Hemp

The Marihuana Tax Act of 1937 effectively made possession or transfer of marihuana illegal throughout the United States under federal law, excluding medical and industrial uses, through imposition of an excise tax on all sales of hemp. Annual fees were $24 ($637 adjusted for inflation) for importers, manufacturers, and cultivators of cannabis, $1 ($24 adjusted for inflation) for medical and research purposes, and $3 ($82 adjusted for inflation) for industrial users. Detailed sales logs were required to record marihuana sales. Selling marihuana to any person who had previously paid the annual fee incurred a tax of $1 per ounce or fraction thereof; however, the tax was $100 ($2,206 adjusted for inflation) per ounce or fraction thereof to sell any person who had not registered and paid the annual fee.[37]

The American Medical Association (AMA) opposed the act because the tax was imposed on physicians prescribing cannabis, retail pharmacists selling cannabis, and medical cannabis cultivation and manufacturing; instead of enacting the Marihuana Tax Act the AMA proposed cannabis be added to the Harrison Narcotics Tax Act.[38] This approach was unappealing to some legislators who feared that adding a new substance to the Harrison Act would subject that act to new legal scrutiny. Since the federal government had no authority under the 10th Amendment to regulate medicines, that power being reserved by individual states in 1937, a tax was the only viable way to legislate marijuana.

After the Philippines fell to Japanese forces in 1942, the Department of Agriculture and the U.S. Army urged farmers to grow hemp fiber and tax stamps for cultivation were issued to farmers. Without any change in the Marihuana Tax Act, over 400,000 acres of hemp were cultivated between 1942 and 1945. The last commercial hemp fields were planted in Wisconsin in 1957.[39] New York Mayor Fiorello LaGuardia, who was a strong opponent of the 1937 Marihuana Tax Act, started the LaGuardia Commission that in 1944 contradicted the earlier reports of addiction, madness, and overt sexuality.[40]

The decision of the United States Congress to pass the Marihuana Tax Act of 1937 was based on poorly attended hearings and reports based on questionable studies.[41][42] In 1936 the Federal Bureau of Narcotics (FBN) noticed an increase of reports of people smoking marijuana, which further increased in 1937. The Bureau drafted a legislative plan for Congress seeking a new law, and the head of the FBN, Harry J. Anslinger, ran a campaign against marijuana.[43][44] Newspaper mogul William Randolph Hearst's empire of newspapers used the "yellow journalism" pioneered by Hearst to demonize the cannabis plant and spread a public perception that there were connections between cannabis and violent crime.[45] Several scholars argue that the goal was to destroy the hemp industry,[46][47][48] largely as an effort of Hearst, Andrew Mellon and the Du Pont family.[46][48] They argue that with the invention of the decorticator hemp became a very cheap substitute for the wood pulp that was used in the newspaper industry.[46][49] However, Hearst newspapers owed large debts to Canadian suppliers of paper, who used wood as raw material. If an alternative raw material for paper had emerged, it would have lowered the price of the paper needed to print Hearst's many newspapers—a positive thing for Hearst.[50][51] Moreover, by the year 1916 there were at least five "machine brakes" for hemp[52] and it is unlikely that in 1930s hemp became a new threat for newspapers owners.

Mellon was Secretary of the Treasury, as well as the wealthiest man in America, and had invested heavily in nylon, DuPont's new synthetic fiber. He considered[dubious– discuss] nylon's success to depend on it replacing the traditional resource, hemp.[46][53][54][55][56][57][58][59]

The company DuPont and many industrial historians dispute a link between nylon and hemp. They argue that the reason for developing nylon was to produce a fiber that could compete with silk and rayon in, for example, thin stockings for women. Silk was much more expensive than hemp and imported largely from Japan. There was more money in a substitute for silk. DuPont focused early on thin stockings for women. As a commercial product, nylon was a revolution in textiles. Strong and water-resistant, it was possible to make very thin fibers from cheap raw materials. The first sales in 1938 in New York of nylon stockings created a line with 4000 middle class women. For years to come, nylon demand was greater than DuPont could produce. And the DuPont Group was very big; it could move on if nylon had not become a success.[60][61][62]

In 1916, United States Department of Agriculture (USDA) chief scientists Jason L. Merrill and Lyster H. Dewey created a paper, USDA Bulletin No. 404 "Hemp Hurds as Paper-Making Material",[63] in which they stated that paper from the woody inner portion of the hemp stem broken into pieces, so called hemp hurds, was "favorable in comparison with those used with pulp wood". Merrill and Dewey's findings were not repeated in a later book by Dewey[64] and have not been confirmed by paper production experts. The consistency of long fibers is too low in hemp hurds for commercial papermaking. Numerous machines had been devised for breaking and scutching hemp fibers, but none had been found to be fully satisfactory in actual commercial work.[51][64][65] To produce fiber from hemp was a labor-intensive process if harvest, transport and processing are included. Technological developments decreased the labor but not sufficiently to eliminate this disadvantage.[66]

There was also a misconception about the intoxicating effects of hemp because it has the same active substance, THC, which is in all cannabis strains. Hemp normally has a minimal amount of THC when compared to recreational cannabis strains but, in the 1930s, THC was not yet fully identified.[67] The methods FBN used for predicting the psychoactive effect of different samples of cannabis and hemp therefore gave confusing results.[68][69]

Mandatory sentencing (1952, 1956)[edit]

Mandatory sentencing and increased punishment were enacted when the United States Congress passed the Boggs Act of 1952 and the Narcotics Control Act of 1956. The acts made a first-time cannabis possession offense a minimum of two to ten years with a fine up to $20,000; however, in 1970 the US Congress repealed mandatory penalties for cannabis offenses.[40]

Controlled Substances Act (1970)[edit]

In its 1969 Leary v. United States decision the Supreme Court held the Marijuana Tax Act to be unconstitutional, since it violated the Fifth Amendment privilege against self-incrimination.[70] In response, Congress passed the Controlled Substances Act as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, which repealed the Marijuana Tax Act.[71] Although the new law did officially prohibit the use of cannabis for any purpose (medical included), it also separated cannabis from other illicit narcotics and removed mandatory sentences for possessing small amounts of the drug.[40]

Cannabis was assigned a Schedule I classification under the CSA, deemed to have a high potential for abuse and no accepted medical use – thereby prohibiting even medical use of the drug. The classification has remained since the CSA was first signed into law, despite multiple efforts to reschedule.[72][73] Other drugs in the Schedule I category include heroin, LSD, and peyote.[74]

Reorganization (1968, 1973)[edit]

In 1968 the United States Department of the Treasury subsidiary the Bureau of Narcotics, and the United States Department of Health, Education, and Welfare subsidiary the Bureau of Drug Abuse Control, merged to create the Bureau of Narcotics and Dangerous Drugs as a United States Department of Justice subsidiary.[75]

In 1973 President Richard Nixon's "Reorganization Plan Number Two" proposed the creation of a single federal agency to enforce federal drug laws and Congress accepted the proposal, as there was concern regarding the growing availability of drugs.[76] As a result, on July 1, 1973, the Bureau of Narcotics and Dangerous Drugs (BNDD) and the Office of Drug Abuse Law Enforcement (ODALE) merged to create the Drug Enforcement Administration (DEA).[40] On December 1, 1975, the Supreme Court ruled that it was "not cruel or unusual for Ohio to sentence someone to 20 years for having or selling cannabis".[77]

State Office of Narcotics and Drug Abuse (1977)[edit]

In January 1976, California's study of the economic impact of its law repealing prohibitions of use went into effect. The law reduced the penalty for personal possession of an ounce or less of marijuana from a felony to a citable misdemeanor with a maximum fine of $100. Possession of more than an ounce was made a misdemeanor, making the maximum fine $500 and/or six months in jail. After the law went into effect, the state's annual spending towards marijuana laws went down 74%. Prior to the law, the state had been spending from $35 million to $100 million.[78]

Mandatory sentencing and three-strikes (1984, 1986)[edit]

During the Reagan Administration the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984 created the Sentencing Commission, which established mandatory sentencing guidelines.[79] The Anti-Drug Abuse Act of 1986 reinstated mandatory prison sentences, including large scale cannabis distribution.[80] Later an amendment created a three-strikes law, which created mandatory 25-years imprisonment for repeated serious crimes – including certain drug offenses – and allowed the death penalty to be used against "drug kingpins".[40]

Solomon–Lautenberg amendment (1990)[edit]

The Solomon–Lautenberg amendment is a federal law enacted in 1990 that urged states to suspend the driver's license of anyone who commits a drug offense.[81] A number of states passed laws in the early 1990s seeking to comply with the amendment, in order to avoid a penalty of reduced federal highway funds.[82] These laws imposed mandatory driver's license suspensions of at least six months for persons committing a drug offense (including simple possession of cannabis), regardless of whether any motor vehicle was involved.[83] Although the amendment does contain a provision for states to opt out (without penalty), eleven states still have so-called "Smoke a joint, lose your license" laws in effect as of 2017.

House Joint Resolution 117 (1998)[edit]

By the fall of 1998, California voters had approved Proposition 215 to legalize medical cannabis, and similar measures were up for vote in several more states. In response to these developments, House Joint Resolution 117 was passed by the U.S. House of Representatives on September 15, 1998, to declare support for "the existing Federal legal process for determining the safety and efficacy of drugs" and oppose "efforts to circumvent this process by legalizing marijuana ... for medicinal use without valid scientific evidence and [FDA] approval".[84] The measure passed by a 310 to 93 vote.[85]

United States v. Oakland Cannabis Buyers' Cooperative (2001)[edit]

Main article: United States v. Oakland Cannabis Buyers' Cooperative

Following the passage of Proposition 215, the Oakland Cannabis Buyers' Cooperative was created to "provide seriously ill patients with a safe and reliable source of medical cannabis, information, and patient support".[86] In January 1998, the U.S. Government sued Oakland Cannabis Buyers' Cooperative for violating federal laws created as a result of Controlled Substances Act of 1970. On May 14, 2001, the United States Supreme Court ruled in United States v. Oakland Cannabis Buyers' Cooperative that federal anti-drug laws do not permit an exception for medical cannabis and rejected the common-law medical necessity defense to crimes enacted under the Controlled Substances Act because Congress concluded cannabis has "no currently accepted medical use" when the act was passed in 1970.[87]

Gonzales v. Raich (2005)[edit]

Main article: Gonzales v. Raich

Gonzales v. Raich 545 U.S. 1 (2005) was a decision in which the U.S. Supreme Court ruled (6–3) that even where individuals or businesses in accordance with state-approved medical cannabis programs are lawfully cultivating, possessing, or distributing medical cannabis, such persons or businesses are violating federal marijuana laws. Therefore, under federal law violators are prosecuted because the Commerce Clause of the United States Constitution grants the federal government jurisdiction, pursuant to the U.S. Controlled Substances Act, to prosecute marijuana offenses.

In Gonzales the defendants argued that because the cannabis in question had been grown, transported, and consumed entirely within California and in compliance with California medical cannabis laws, their activity did not implicate interstate commerce, and as such could not be regulated by the federal government through the Commerce Clause.

The Supreme Court disagreed, reasoning that cannabis grown within California for medical purposes is indistinguishable from illicit marijuana and that because the intrastate medical cannabis market contributes to the interstate illicit marijuana market, the Commerce Clause applies. Even where California citizens are using medical cannabis in compliance with state law, those individuals and businesses can still be prosecuted by federal authorities for violating federal law.[88]

To combat state-approved medical cannabis legislation, the Drug Enforcement Administration continued the routine targeting and arrests of medical cannabis patients and the seizure of medical cannabis and the business assets of growers and medical dispensaries. This was finally curtailed with the passage of the Rohrabacher–Farr amendment in 2014, although prosecutions initially continued until a pair of court rulings determined the DOJ was interpreting the amendment incorrectly.

Cole Memorandum rescinded (2018)[edit]

In January 2018, Attorney General Jeff Sessions rescinded the Cole Memorandum, an Obama-era policy that generally discouraged U.S. Attorneys from enforcing federal law against state-legal cannabis enterprises.[89] The impact that rescinding the memo would have on enforcement activities was not immediately made clear by Justice Department officials.[90]

Decriminalization (1970s–)[edit]

Medical use[edit]

Main article: Medical cannabis in the United States

Compassionate IND program (1978)[edit]

In 1975, a Washington D.C. resident named Robert Randall was arrested for cultivating cannabis. Randall, who had discovered that cannabis relieved the symptoms of his glaucoma, employed a medical necessity defense at trial to justify his use of the drug.[91] The charges against Randall were dismissed, and as a result of an ensuing petition filed with the FDA, Randall became the first person to receive cannabis from the federal government in 1976.[91] After his supply was cut off in 1978, he filed a lawsuit to have it restored,[91] setting in motion the creation of the Compassionate Investigational New Drug program shortly thereafter.

Excerpt from the New York Times, March 7, 1884
Tax stamp for a producer of hemp
Hemp, bast with fibers. The stem in the middle.
U.S. cannabis arrests by year

When Colorado became a state, in 1876, both hemp and cannabis were legal — and they stayed that way for decades. By the late 1800s, cannabis oil was a common ingredient in medical tinctures, and Asian-style hashish dens had become fashionable in cities like New York and San Francisco. That increased popularity led to concerns that hashish would lead to mass addiction, and in 1906 the federal government imposed the first regulation on cannabis intended for consumption: A product simply had to be labeled if it contained the herb.

But in the Southwest, cannabis was gaining a darker reputation. The plant was associated with the migrant workers flooding the area for low-paying field work: brown-skinned people who made light-skinned people uncomfortable by eschewing liquor in favor of the crazy herbs they brought with them from Mexico or the Far East. Officials and the media began calling the herb "marijuana" rather than the traditional "cannabis," because it sounded more like Spanish and was therefore scarier to whites. California became the first state to outlaw marijuana; the law, passed in 1913, had another name for it: "loco weed." Between 1915 and 1917, Wyoming, Utah and Nevada all banned cannabis.

In March 1917, Colorado legislators made the use and cultivation of cannabis a misdemeanor; those who broke the law were subject to a fine of between $10 and $100 and up to a month in jail. The bill was sponsored by Andres Lucero of Las Animas; given his Hispanic surname and the fact that, later that same year, he also sponsored a measure outlawing cocaine and opium distribution, it's likely that Mexican immigrants were not the target of the bill. Instead, it might have been part of the growing national temperance movement that led to Prohibition in 1920.

But in 1929, when the Colorado Legislature passed a law making the sale, possession and distribution of marijuana a felony in Colorado, minorities were clearly the focus of the measure. A Mexican immigrant who'd murdered his stepdaughter in Denver that year was reportedly under the influence of cannabis; sensational newspaper stories played up both the drug and his origins. Val Higgins, a Denver chaplain, told the Rocky Mountain News that the new, stricter legislation was necessary to control the growing Mexican population. "The use of marijuana came into the state with the Mexicans migrating here for agricultural work," he said. "Its use is growing because of the increasing number of Mexicans and the ease with which most of them have been able to avoid penalties."

News reports in the early 1930s continued to push the perception that marijuana was a scourge of minorities. Articles detailed raids on Hispanic homes and busts in traditionally Hispanic neighborhoods. A News story in August 1937 titled "Marijuana in Denver? Sure, Plenty of the Stuff" detailed the writer's excursion to then-seedy Larimer Street to deal with "dark faced men" who were dealing herb bundled into "deuces, and aces" and selling two joints for a quarter. Another piece talked about how beet workers — traditionally migrants from Mexico — brought the marijuana into Denver regularly to "augment their scanty income."

Other accounts were more blatantly racist, describing fields of marijuana being grown by Mexicans who "corrupt" local youth. In August 1937, a Denver Post article reported that two Mexican nationals arrested for selling marijuana to high-school students had been jailed for ninety days, as well as fined for narcotics violations and vagrancy; the men had reportedly bragged to police that marijuana was growing wild along the Platte. The story was no doubt as sensational then as it would be today, since cannabis is not native to the Denver area, nor does it grow feral here as it does in other parts of the Midwest that cultivated legal hemp during World War II.

The rest of the country was soon swept up in the racist reefer madness that had already grabbed the Southwest. The federal government passed the Marijuana Tax Act in 1937, making marijuana use and cultivation without a license a crime; however, the government never issued such a license. Just three years earlier, the 1934 Uniform State and Narcotic Drug Act regulating medical narcotics had included cannabis as a legal drug, and any violations involving it were considered misdemeanors.

No more.


By the 1960s, Hispanics were no longer the primary focus of local enforcement of marijuana laws. The hippies had arrived. The newspapers were full of stories about hippies busted with marijuana plants in their back yard and columns that made it clear that their authors thought hippies deserved to rot in jail over possession of a plant.

But public opinion was shifting. In 1968, the News reported that 67 percent of Colorado College students favored legalization of marijuana. The University of Colorado was another stoner-friendly school; in a March 29, 1965, article, a News reporter revealed his shock at how much marijuana was available on the campus and how many students were using it. By 1970, legislators and a few progressive lawmen were arguing for lowering the penalties on cannabis possession and use, and that August, recreational possession was downgraded from a felony to a misdemeanor. Later that year, Hunter S. Thompson ran for sheriff of Pitkin County on a complete drug-decriminalization platform — and nearly won.

The cannabis climate had clearly become more friendly by 1973, when legislator Michael Strang, a Carbondale Republican, introduced the first re-legalization effort in Colorado history. The bill would have made possession and use of marijuana legal for anyone eighteen or older. "Our society has decided it wants to use this stuff, regardless of the risk," he said. Strang's bill would have created licenses for growers, wholesalers and retailers, and put a $6-per-ounce tax on any marijuana sold; at the time, the going rate for an ounce was about $15.

Although Strang's proposal never passed out of committee, Oregon reduced the penalties for marijuana possession that year. And in 1975, the Colorado Legislature followed suit, decriminalizing possession, transportation and private use of marijuana; possessing up to an ounce of the stuff was made a petty offense, with a maximum fine of $100. (That amount was increased to two ounces in 2010, still with a maximum fine of $100 and the potential for fifteen days in jail for things like smoking in public. And sale to anyone can still net up to fourteen years in state prison.)

Colorado's first medical marijuana bill, dubbed the "Dangerous Drugs Therapeutic Research Act," was introduced in 1979 and signed into law by Governor Dick Lamm; it allowed cancer and glaucoma patients to use medical marijuana. Doctors had to prescribe the drug, and patients were to pick up their meds at the University of Colorado Health Sciences Center in Denver — but there was a hitch. The program was dependent on federal government approval, which never came. Lamm signed another bill, called "Therapeutic Use of Cannabis," in 1981; this time, patients were to obtain their pot from the feds. They're still waiting.

The sponsor of that bill, then-Representative John Herzog of Colorado Springs, says the goal was to expand the program created in 1979 to twelve hospitals around the state, which would all be able to offer cannabis to cancer patients. He recalls that the measure received a surprising amount of support from fellow legislators; the minimal opposition came mostly from local PTAs. Although the expanded program even got a nod from the National Institutes of Health, it never took off. That's because in October 1970, the federal government had classified marijuana as a Schedule 1 controlled substance with no therapeutic value — a status it officially retains today.

In 1996, California voters approved Proposition 215, allowing the use and cultivation (and sale, some argue) of medical marijuana. That got the ball rolling in Colorado, and proponents of MMJ pushed Amendment 19 onto the ballot in 1998. But then-Secretary of State Vikki Buckley refused to count the votes, saying that the measure did not have the proper number of signatures to get on the ballot in the first place. Those proponents tried again, though, and in 2000, Coloradans approved Amendment 20, which made this the only state to legalize medical marijuana in its constitution.

The amendment permitted medical marijuana use for people with chronic weight loss, muscle spasms, seizures, severe pain and severe nausea; caretakers were to "dispense" this medicine after doctors had prescribed it. The program went online in June 2001, despite warnings from then-Attorney General Ken Salazar that any doctors who issued such prescriptions could face federal charges. (While some doctors have faced state sanctions in recent years, none have been prosecuted federally for prescribing pot.)

While the medical marijuana industry was evolving, activists continued to push for recreational use of marijuana. In 2005, Mason Tvert's newly founded Safer Alternatives to Recreational Enjoyment pushed — and passed — resolutions at Colorado State University and CU demanding that cannabis penalties be no worse than penalties for alcohol offenses on campus. That same year, SAFER put a measure on the Denver ballot that would decriminalize possession of up to an ounce of marijuana by anyone over the age of twenty. When Denver voters approved the proposal, the Mile High City became the first major city in the country to make such a move — even though it was mostly symbolic and simply reinforced the state's 1975 decriminalization laws.

Still, it was seen as a win for the cannabis community, and it inspired SAFER to push for a similar statewide measure in 2006 that only received 40 percent of the vote. In 2007, SAFER again focused on Denver, which this time approved making marijuana possession the city's lowest police priority.

And soon a lot more people would be possessing marijuana — legally.


For nearly a decade after the passage of Amendment 20, the medical marijuana program in this state was small, mostly underground, and run by a few pioneering caregivers like the late Ken Gorman, who famously advertised in Westword for his services; these caregivers were overseen by the Department of Public Health and Environment.

But in 2007, Denver District Judge Larry Naves ruled that these caregivers were not limited to five patients, as the law had previously been interpreted. That, along with a broad definition of the amendment's language allowing caregivers to "dispense," was enough to inspire eager ganja-preneurs to open actual medical marijuna dispensaries, which had already begun popping up in California. They were further encouraged by the election of President Barack Obama in November 2008. By early 2009, there were dozens of dispensaries in Denver, and later that year, Naves again pushed the industry with a liberal interpretation of caregiver. By September 2009, there were enough dispensaries in the metro area that Westword started advertising for a pot critic.

But most would still say the real green rush was triggered on October 19, 2009, when Deputy Attorney General David Ogden wrote a memo to all U.S. Attorneys advising them to consider the enforcement of federal drug laws among their lowest priorities when dealing with states' legal medical marijuana patients and programs. The Ogden Memo, as it has become known, seemed to give the official go-ahead to the state's evolving dispensary system. And in response, the number of official MMJ patients jumped from just under 20,000 at the start of October 2009 to more than 100,000 by the following July.

By 2010, the dispensary boom had become a major issue for Colorado politicians, who crafted House Bill 10-1284 in an attempt to regulate and guide (and in many ways, rein in) the fledgling MMJ industry that had been operating in a largely unfettered manner to that point. The measure established operating hours, security requirements and plant-monitoring procedures for dispensaries; required that dispensaries — now known as "centers" — grow 70 percent of the marijuana they sell; and prohibited former drug felons from working in the industry. The bill also allowed for cities and counties to enact their own bans against retail marijuana sales — and so far, more than eighty have. Most important, HB 1284 created a new branch of the Department of Revenue: the Medical Marijuana Enforcement Division, which is funded primarily by dispensary license and application fees.

At the same time Colorado officials were trying to come to grips with one new marijuana industry, some cannabis activists were already pushing to create another one. In the summer of 2011, there were several legalization proposals being considered by various factions, including one by the Campaign to Regulate Marijuana Like Alcohol, headed by Tvert and attorney Brian Vicente. But only their proposal had the momentum to make it onto the ballot, as Amendment 64, which Coloradans will vote on next week.

If Colorado voters pass Amendment 64, possession of up to an ounce of marijuana for personal use by adults 21 and older would be legalized. (Possession of up to two ounces would still be decriminalized under state law for adults 18 and up.) Amendment 64 would also authorize the state to collect a voter-approved excise tax of up to 15 percent on marijuana — with the first $40 million collected earmarked for public-school construction across Colorado. Although personal sales would not be legalized, cultivation of up to six plants at a time would be permitted (again, for those 21 and up only), and growers would be able to keep their entire harvest, even if it is over an ounce; they could also give away up to an ounce to other adults 21 or over. (Laws against growing currently carry penalties of eighteen months in jail and up to $5,000 in fines for even a single plant.)

"Marijuana prohibition is causing harm every day we allow it to continue, so we believe that it is imperative that we replace it with a more sensible system as soon as possible," Tvert says. Past SAFER victories have played "a significant role in sparking a dialogue about marijuana in Colorado," he adds, "and the emergence of the regulated MMJ system has also played a role. If you talk with [Vicente], he'll point more to the legal wins, but I know the social movement has played a huge role as well. Both have changed the way people think about marijuana."

Amendment 64 has received the backing of numerous groups, including the Colorado Democratic Party, the Libertarian Party of Colorado (including presidential nominee and former New Mexico governor Gary Johnson), the Green Party of Colorado, the local branch of the ACLU and the Colorado Criminal Defense Bar. It is also supported by Law Enforcement Against Prohibition, as well as retired Denver Police lieutenant Tony Ryan, who spent 36 years patrolling the city. But its most recognizable supporter could well be former congressman Tom Tancredo, a Republican firebrand who called marijuana prohibition a "wasteful and ineffective government program" in his official endorsement of 64.

Supporters don't just give Amendment 64 lip service. According to, a non-partisan group that tracks campaign financing, the Amendment 64 campaign has collected more than $1.7 million from individuals, with the majority coming from out of state. California-based entrepreneur Scott Bannister contributed a quarter-million to the campaign, and San Diego-based peace activist Lawrence Hess donated $30,000. Donations from groups supporting the measure, including the Coalition to End Marijuana Prohibition, have upped the pro-64 war chest to about $3.7 million. The largest chunk for the Campaign to Regulate Marijuana Like Alcohol came from the Washington D.C.-based Marijuana Policy Project, which donated more than $1.2 million. Drug Policy Action, a national drug-law reform organization, dropped another $65,000 in the kitty.

Also noteworthy is a $50,000 donation from California-based Dr. Bronner's Magic Soaps, a contribution that echoes back to the early days of cannabis in this country. The Bronner's soaps are made from hemp oil that company head David Bronner now has to import from Canada, and with no competition, Canadian hemp producers are charging a premium. Bronner sees Amendment 64 as a way of forcing the issue of commercial hemp farming with the federal government. "Basically, we need major agricultural states to reach a critical mass," he says. "If they adopt an industrial hemp program, it will keep the pressure on Washington — to get more and more traction, so we can get industrial hemp cultivated again."

The No on 64 campaign has only a fraction of pro-64's money. Campaign director Roger Sherman says the disproportionate funding is disappointing but not surprising. "I mean, it is what it is," he says. "They benefit from a national movement, and there is a national network of donors. It's always a challenge when you are faced with that kind of opposition."

But that doesn't mean Sherman is opposed to out-of-state money. By mid-October, No on 64 had racked up almost $440,000 in donations. The largest — $157,497 — came from Florida-based Save Our Society From Drugs, a group whose website lists its mission as helping Americans "defeat ballot initiatives, statutory proposals and other attempts to 'medicalize' unsafe, ineffective and unapproved drugs such as marijuana, heroin, and crack cocaine." Focus on the Family affiliate Citizenlink ranks second with a $25,000 donation, followed by Colorado businessman Steve Mooney's $20,000. Centennial's family-operated Trice Jewelers donated $15,000.

But while their campaign fund might be overwhelmed by the pro-pot pot, "We have the right message on our side," Sherman says. "This is not the kind of issue we want embedded in our constitution. If you love Colorado, is this really the type of thing you want our state to be known for?"

The official No on 64 group has gained support from state legislators, county sheriffs and municipal officials across the state — even though 64 would allow municipalities to opt out of the measure. The highest-profile opponent to 64 is Governor John Hickenlooper. "Amendment 64 has the potential to increase the number of children using drugs and would detract from efforts to make Colorado the healthiest state in the nation," he said in announcing his opposition. "It sends the wrong message to kids that drugs are okay."

That elected officials would oppose the proposal isn't surprising. What is surprising, though, is the number of marijuana activists who oppose Amendment 64.


Truth be told, this state's pot proponents never seem to agree on anything, other than that cannabis is amazing — and even then it's unlikely that they'd say that in unison, and they'd definitely disagree over how to consume it. The Amendment 64 campaign turned in its proposal to the Colorado Secretary of State's Office early, and without consulting other pro-legalization groups. That gave other activists the opportunity to argue that the language is flawed, and even to openly campaign against the measure.

The Colorado Alliance for Regulation and Education has been among the most active. CARE president Rico Colibri, who for a time floated an alternate legalization proposal, says that one of his problems with Amendment 64 is the fact that it's been marketed as the "Campaign to Regulate Marijuana Like Alcohol" — and that misleads voters, he charges, since alcohol sales are not limited to only certain amounts of beer, wine or liquor per customer.

But 64's real danger, Colibri argues, is its failure to create a right for cannabis use that would protect Coloradans from violating federal controlled-substances laws; it doesn't even give cannabis users a defense against employers who want to fire workers for using marijuana in their free time. Colibri points to recent rulings regarding Arizona's immigration laws as proof that state laws cannot be in conflict with federal laws. Passing Amendment 64 would do nothing to prevent federal marijuana arrests in Colorado, he says, and it also fails to remove federal funding and assistance for law enforcement efforts at the state level. "We have to start somewhere, but do we start in a position that kicks out the red carpet and makes everyone think it's like alcohol when it's like in the Controlled Substances Act?" he asked at a recent town hall meeting. "We have to remove funding from the feds. This is a money matter. It's all about money; they don't give a damn about civil rights. If you don't remove the money, they are coming."

And Colibri isn't alone in thinking that Amendment 64 doesn't go far enough. Even Tvert admits he'd like to see a proposal that opens up Colorado to total unregulated legalization of cannabis, but that won't happen overnight. In the meantime, he points out that the one-ounce limits in Amendment 64 are merely a baseline and can be increased by state statute. "The notion that it's better to keep marijuana 100 percent illegal for non-medical use because we'd like it to be 100 percent legal without any sort of regulation is counterproductive and irrational," he says.

Last week, the New York-based Marijuana Arrest Research Project released data showing that police in Colorado made more than 210,000 arrests for marijuana possession between 1986 and 2010, which put it right in the middle of all the states for pot arrest rates.

A disproportionate number of those arrests involved minorities. Although statistically whites use more marijuana than any other racial group, Hispanic tokers are almost twice as likely to be arrested — and African-Americans are more than three times as likely. The study made a point of noting that only 3.8 percent of all Colorado residents are black.

A second study by Drug based on the same FBI Uniform Crime Reporting Program data indicates that the arrest rates for possession in Colorado hovered between 10,000 and 12,000 in recent years — arrests that Amendment 64 backers say would end if their bill passes. As neither study breaks down the possession arrests by amount, though, critics say that proponents are being misleading when they say that arrests would be eliminated, since the amendment would only legalize an ounce for personal possession. But 64's backers counter that legal pot shops will eliminate the need for mid-level pot dealers, who are now getting busted for storing up several ounces at a time to sell off.

As for Colorado's decriminalization of up to two ounces? The MARP study points out that a court appearance is mandatory, and missing it could mean up to a $500 fine and six months in jail. "It would be a mistake to think that these arrests do not carry significant consequences for the thousands of mostly young Coloradans who go through the arrest, prosecution, and sentencing process every year," the report concludes.


Although both Oregon and Washington state also have marijuana legalization measures on the ballot, Colorado's looks like it might have the best chance of passing, with polls in late October showing voters equally divided.

What would happen if Amendment 64 is approved?

Even though the amendment would be in the Colorado Constitution, it would not supersede the federal Controlled Substances Act, nor make marijuana in any way legal at the federal level. Getting popped federally for cultivation could still net a quarter-million dollars in fines and up to five years in prison. But 64 would create a buffer for use and possession of limited amounts in Colorado: State police would not be able to cite or arrest anyone for anything at or under the prescribed amount.

Someone in the state legislature would have to take the lead and propose legislation to regulate the new marijuana industry, as lawmakers did with HB 1284. Nancy Spence, who is now retired, was one of the two Senate sponsors of that measure; although she says she wasn't supportive of the boom in the MMJ business, she helped craft the rules because it was the right thing to do. "I tried my best to do a good job at the regulation," she recalls. "Although I didn't support MMJ in the year 2000, the responsible thing to do was take care of it and do my best to make certain that it was regulated in a way that would contain it."

So far, no legislator has stepped forward — at least, not publicly — to do the same work on Amendment 64. It's possible that none will — and even if such legislation is passed, the governor could refuse to sign it. But the language of the ballot proposal takes that into account. If state government stalls on enacting the will of the people, one lawyer notes, the matter would automatically bypass the state and go straight to local jurisdictions, which would then license and regulate the stores. (If they allow them at all; as with MMJ, municipalities can opt out of pot shops.)

Tvert points to the state medical marijuana system as a good example of what this version of legalization regulation could look like. Just as the Colorado Legislature charged the Department of Revenue with regulating the MMJ business, Amendment 64 would have the Department of Revenue do the same for commercial marijuana stores. That means regulating everything from labeling requirements to production standards to advertising and display of marijuana in public. And all of those rules would have to be in place by July 2013, so that the state could begin licensing pot shops that October.

But while Tvert cites the system that the legislature set up with the Department of Revenue as a model that could be followed again, he might hope it works a little more smoothly the second time around. The Medical Marijuana Enforcement Division has struggled in its sixteen months of existence and has had financial problems, squandering a lot of its operating budget on overpriced video-monitoring systems and leases on new black Chevy SUVs. There aren't enough people on staff to drive those vehicles: The division has gone from thirty employees to around a dozen.

Partly because of the staffing shortage, more than a year after the division was established on July 1, 2011, it has yet to license all of the dispensaries around the state. Despite collecting more than $11.8 million in its first fourteen months of existence, as of October 23, the MMED had licensed just 266 medical marijuana centers around Colorado, and still had 277 licenses pending in the system. Those centers that were in business before July 2011 have been allowed to remain open in the interim — which means that some dispensaries have been open for years without paying licensing fees, while others that were issued licenses in September and October of 2011 are already being asked to cough up renewal fees.

If it passes, Amendment 64 has the potential to bring in far more money — and create much more work for the Department of Revenue.

Last month, the Colorado Center on Law and Policy estimated that the state could come out $60 million ahead in the first year after Amendment 64's passage, by cutting police costs and increasing tax revenue.

But how pot businesses would pay those taxes is another hurdle. As the medical marijuana industry discovered over the last few years, banks and credit unions insured by the feds have become wary of doing business with MMJ enterprises. That led state senator Pat Steadman to introduce a bill last year that would have created a state-run credit union for the medical marijuana industry. His idea was shot down in committee, though, and he ultimately conceded that the banking fix for marijuana businesses isn't going to come at the state level, but the federal. "The solution doesn't lie at the State Capitol in Denver," he said at the time. "This is a problem with federal law and federal law enforcement agencies. We have been searching and searching for some kind of work-around. The bill we came up with has the potential, but for various reasons, I'm not sure it's all there."

U.S. Representative Jared Polis attempted to remedy the problem at the federal level with the Small Business Banking Improvement bill last year, but the proposal never reached the floor.

Tvert and other supporters of Amendment 64 know there could be bumpy times ahead if the proposal passes — but no rougher than the times this state has already been through. "Like alcohol prohibition, marijuana prohibition has been wasteful and done more harm than good," Tvert says. "Colorado repealed alcohol prohibition before the federal government did, and we can repeal marijuana prohibition just the same."


Mason Tvert started with SAFER, then moved to Amendment 64.

One thought on “Vinogradoff Essays In Legal History Of Cannabis

Leave a Reply

Your email address will not be published. Required fields are marked *