It will not be lost on the reader that the national leaders who are calling for change are all heads of drug-producing states. These are countries whose citizens are dying in the tens of thousands. The War on Drugs is wrecking their economies, their environments are being destroyed, and corruption and violence are endemic, threatening the very foundations of their states. In the words of President Santos, they are losing their best politicians, best journalists, best police, and best judges to the drug war.[15]
The consuming countries, on the other hand — Canada, the United States, European nations — continue to be mostly resistant to policy change. Although small incursions against the all-out drug war are being made in the United States and in some European nations, by and large the consuming countries are content to let producing nations take the fall for consumers’ habits. As one Uruguayan legislator said, “The U.S. provides the arms and we provide the dead.”[16]
When thinking about how best to push for change, it’s helpful to understand the history. How is it that certain drugs became the subject of prohibition while others did not? What lies behind the distinctions that were made over the past century? Do these distinctions make any sense? Are they distinctions that today should not be acceptable because they smack of discrimination and moralism? Why did incarceration become the default mode for what is essentially a public health problem? How do we strip away this history and deal with problems of drug abuse in ways that accord with the science and evidence?
The Early History of Criminalization
Today’s illegal drugs were regularly used — by respectable society no less — as legal drugs until quite recently in our history. Any number of patented medicines once contained cocaine or morphine.[17] Coca-Cola contained cocaine until 1900, and Bayer Pharmaceutical Products sold heroin over the counter in 1898. Even Queen Victoria was known to take and enjoy both marijuana and cocaine.[18] During the late 1800s, there were cough medicines for children that contained extracts of marijuana, heroin, and cocaine. British department store Harrods sold both cocaine and heroin over the counter until 1916, and prepared gift packs for First World War soldiers that contained morphine and cocaine.[19] Heroin has always been available on prescription in the United Kingdom with certain restrictions (with the exception of a short time in the mid-1950s when pressure from the United States convinced the government to ban it). Marijuana, cocaine, and heroin were, in fact, almost mainstream drugs until the beginning of the twentieth century.
Some American states passed laws in the late 1800s that limited the commerce in cocaine, marijuana, and opium. As will be seen, these were largely racist laws targeting mainly black, Mexican, and Chinese men. They were intended to protect white women from predation by these minorities and to sideline populations that were seen to be taking jobs away from white people.[20] But how did this all come to pass?
In 1906, the federal Pure Food and Drug Act was passed in the United States, and this resulted in the demise of the patent medicine industry.[21] This was followed by the 1914 Harrison Narcotic Act, which imposed so many regulations that it was virtually impossible to conduct legal commerce in opium and cocaine. Finally, in 1919, the Supreme Court, in Webb v. United States, cruelly decided that it was illegal for doctors to prescribe drugs to alleviate symptoms of withdrawal. This ushered in the black market that still flourishes today. It drove the industry underground while ensuring that the quality of available drugs became unreliable and therefore dangerous to users.
In 1937, the United States passed its Marijuana Tax Act, which prohibited the non-medicinal and unlicensed possession or sale of marijuana. The hysteria around the use of marijuana by this time had reached its peak. In 1936, Reefer Madness (propaganda thinly disguised as a melodramatic feature film) warned against the dangers of marijuana. In 1937, Harry J. Anslinger, commissioner of the U.S. Federal Bureau of Narcotics (now the Drug Enforcement Agency or DEA), wildly claimed, “Marijuana is the most violence-causing drug in the history of mankind. Most marijuana smokers 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.”[22]
Thus Mr. Anslinger neatly encapsulated the moral outrage, racial prejudice, and unfocused fear that informed the prohibition of marijuana. It should be noted that the American Medical Association (AMA) spoke out against the criminalization of the drug in 1937.
The 1937 law, coupled with considerable red tape and an exorbitant tax, succeeded in removing marijuana from the commercial market and driving it, too, underground. Even hemp, a harmless substance much-prized for its commercial uses as rope, paper, and textiles (it is the stalk of the marijuana plant, with no active THC content) was outlawed after the Second World War.[23]
In Canada, early legislation followed almost in lockstep with the United States. In 1908, the Opium Act made it illegal to import, manufacture, or sell opium for non-medicinal purposes.[24] However, in imitation of the racist approach of the United States, Canadian law enforcement ensured that only the Chinese manufacturers of opium for smoking were put out of business. At the same time, the patent-medicine industry was allowed to continue dispensing opiated liquids to its primarily white customers. In 1922, changes to The Opium and Narcotic Control Act resulted in high conviction rates and harsh sentences against the Chinese population in British Columbia, including deportation back to China.[25]
Cocaine was banned for use in medicines in 1908, and was later included in the 1911 Opium and Drugs Act, which provided for harsher sentences for drug convictions.
Canada was ahead of the United States in banning marijuana. Feminist Emily Murphy is widely credited with helping convince the government to do so. She demonized the drug, describing drug users as “dope fiends,” and received an extraordinary amount of publicity by writing a book and a series of articles for Maclean’s magazine on the subject. The government obliged by the simple expedient of adding cannabis to the schedule of prohibited drugs in 1923. This was announced quietly, succinctly, and somewhat ominously: “There is a new drug in the schedule.”
Eighty years later, a Senate committee excoriated Canada’s 1923 law. It said that the law had provided a solution where there was no problem.[26] It had amounted to a pre-emptive strike. The committee concluded that the 1923 marijuana prohibition was based upon “moral panic, racist sentiment and a notorious absence of debate.”[27]
The rationale for criminalizing drugs in North America relied upon neither science nor public health concerns. Moral indignation, racial prejudice, classism, and cultural differences were responsible for the wholesale outlawing of drugs that had been seen as largely beneficial when used sensibly. It is not going too far to suggest that drug prohibition has been employed as a means of social control.
The ban on marijuana provides a good example of the effect of racism upon drug policy. At the time of its prohibition in the United States, marijuana was considered to be the drug of choice of African-Americans, who used it in speakeasies where jazz — an “immoral” new type of music — was prominent. Raw sex was widely thought to be central to the atmosphere of these clubs, and combined with a widespread fear of black men as predators on white women, these factors were enough for legislators to outlaw the drug associated with them.
An additional factor associated with marijuana prohibition was that Mexican men were immigrating to the United States in significant numbers and were bringing a penchant for the drug with them. The Mexicans were regarded as a threat to jobs for white men at the time, and so criminalizing the drug was one way of ridding the employment market of these interlopers.
The racism implicit in these developments continues today, and African-Americans are incarcerated in the United States at a much higher rate for drug use, even where they use drugs less than Caucasians. In every major county of California, African-Americans are two to four times more likely to be arrested than Caucasians for marijuana offences, even though they are less likely to smoke marijuana.[28] In more general terms, although black and non-black use of marijuana is “similar” across the board, 74 percent of those