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CHAPTER II The Alien Weed PDF Print E-mail
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Books - The Marihuana Conviction
Written by Richard J Bonnie   

THE PRACTICES of smoking marihuana and of growing it for that purpose filtered into the United States from the south in the early years of the twentieth century. Transported by Mexicans and West Indians, the plant and its intoxicant use encountered a hostile political and social climate. Gradually during the ensuing quarter-century, criminal prohibitions appeared on the statute books of nearly every state where the drug was used. Well into the 1930s, however, marihuana-smoking attracted little concerted attention from the national policy and opinion apparatus, which was deeply engaged in drug matters of much wider social impact than the limited, regional use of this new drug. Thus, the story of marihuana policy in the United States begins as a series of distinctly local tales.

Beginning around 1900 in the towns along the Mexican border and a decade later on the Gulf coast, the practice of marihuana-smoking entered the United States at two independent points. The users in the two areas differed, as did the degree of public aware-ness of the phenomenon and nature of the public perception. During the twenties the use of the drug spread from these points of entry in two directions, and with two distinct identities: it traveled north and west from the border, taking along an ethnic identity, and north and east from New Orleans, with its identity as a fungible narcotic and enslaver of youth.

Marihuana Crosses the Rio Grande

Political chaos at home and economic opportunity in the United States significantly augmented the migration of Mexicans to Texas and New Mexico at the turn of the century.1 In Mexican districts of the border towns and in major cities these immigrants continued to smoke and grow marihuana as they had done at home. Cultiva-tion of the plant was a major industry in the vicinity of Mexico City, the mountains of Thalpam, and in surrounding Mexican provinces, and a steady supply of marihuana easily crossed the border into Laredo, El Paso, San Antonio, Nogales, and other border towns and major cities. Laredo was of major importance because it was linked directly to the Mexico City area by the Mexican National Railroad. The demand for the plant was signifi-cant enough that in 1917 a United States government investigator reported that several importing firms commercially distributed marihuana to other points in the region, particularly to San Antonio. One company, in business only three months, had five hundred pounds of marihuana in stock at the time of the investiga-tion. Retailers, mostly local grocers, openly advertised.2

The demand for "Rosa Maria" was satisfied not only by garden plants and bulk Mexican imports but also by one-ounce packages sold over the counter in drug stores. Since no prescription was required for its purchase, the corner druggist was a useful source of the weed. In fact, a mail-order business grew up; one druggist in Floresville, Texas, sent marihuana by mail to twenty customers in Texas, Arizona, New Mexico, Kansas, and Colorado. Although medical application of the drug was apparently limited by this time, major pharmaceutical houses still manufactured it in "herb" package as well as in tincture and extract form.3

Marihuana-smoking was probably a casual adjunct to life in the Mexican community—a relaxant, a folk remedy for headaches, a mild euphoriant cheaply obtained for two cigarettes for a dollar. But within the Mexican community, marihuana had also achieved a potent folklore status which spread to the Americans more quickly than did the drug.

According to contemporary reports, a common Mexican saying "Esta ya ledio las tres" ("you take it three times") referred to the exhilarating effects of three inhalations of marihuana. The first puff was said to induce a feeling of well-being; the second allegedly provoked extreme elation coupled with activity; and the third was reputed to make the smoker oblivious to danger, quarrelsome, delirious, destructive, and conscious of superhuman strength.4

A drug with such obnoxious properties soon attracted the atten-tion of the law enforcement officials of El Paso, characterized as a "hot bed of marihuana fiends"5 where use of the drug was reportedly common not only among Mexicans but among"Negroes, prostitutes, pimps and a criminal class of whites."6 In response, El Paso passed an ordinance banning sale and possession of the drug in 1914.7 According to one interested physician who traveled along the border towns around 1920, passage of this ordinance was precipitated by a major fight allegedly involving a marihuana user.8

Similar anecdotes were common. One police captain reported three years later:

I have had almost daily experiance [sic] with the users of [marihuana] for the reason that when they are addicted to the use they become very violent, especially when they become angry and will attack an officer even if a gun is drawn on him, they seem to have no fear, I have also noted that when under the influence of this weed they have abnormal strength and that it will take several men to handle one man where under ordinary circumstances one man could handle him with ease.9

The captain of detectives concluded that marihuana produced "a lust for blood," rendering the user "insensible to pain" and capable of "superhuman strength when detained or hindered from doing whatever [he is] attempting to do."1° The chief of police wondered why the Mexican government did not feed the "-mari-huana dope" to its armies to get the civil war over with because the soldiers would then fight instead of looting and hunting as they were prone to do.11

Actually, marihuana was in common use in the Mexican army. A U.S. Customs officer who served at the international bridge* at El Paso and was a self-declared authority on "marihuana fiends" did not think the drug helped the Mexican army much. In his view, marihuana users became irresponsible and strayed aimlessly about. He told the story of a Mexican who suddenly appeared on the bridge and was escorted back to Juarez, but soon returned. At this point the customs officer "noticed [the Mexican's] eyes pro-truding and... knew that he was under the influence of marihuana." After disarming his captive of a belt of rifle cartridges and an empty six-shooter, the American ordered him to the guard house. When the Mexican refused, he was pushed and knocked to the ground. Upon being informed that the Mexican had committed no offense, the American turned him over to the Mexican consul. The belt of cartridges, however, led the American to continue to search for a rifle. "About half way over the bridge we found his rifle standing up against a post. Later investigation proved that he was a sentry in the Mexican army on duty at the bridge and that under the influence of marihuana [he] had simply started to wander."12

American authorities were particularly concerned that the troops stationed along the border under General Pershing in 1916 might become infected with the marihuana vice. When a federal investiga-tor learned from an El Paso druggist that numerous American soldiers had sought cannabis packages upon their return from expeditions across the border, he interviewed almost every military official along the border. All of them denied any knowledge of the practice.13

However, an army physician stationed in Texas at this time recalled nine years later: "Mexican laborers were about the only ones knew of to use it in the United States. They use it, get "hopped up," are picked up by the police who send them [to the hospital] for treatment. We would keep them five or six weeks and send them back. After the guard went down to Mexico and came back, I,saw the first white people who smoked the plant. Soldiers who had been on the border smoked cigarettes of marihuana either straight or mixed with tobacco."14 This hypothesis is further sup-ported by the fact that use of marihuana was prohibited at Fort Sam Houston by order of the commanding general in July 1921.15

Apart from its possible infusion into the American military, marihuana-smoking in Texas appears to have been confined pri-marily to lower class Mexicans. Marihuana use was a lower class phenomenon in Mexico as well; it is therefore of particular interest that several states of the Mexican Republic adopted a restrictive public policy at about the same time marihuana appeared in the southwestern United States. Mexican authorities, even more class-conscious than their American counterparts, were particularly apprehensive about its use in the army, fearing it might con-taminate the upper classes. The Mexican aristocracy's position is clearly reflected in a 1917 editorial, translated from a Spanish-language San Antonio newspaper:

[The hemp] plant is terribly noxious when used as a narcotic, from which a dangerous vice is acquired by those who make a bad use of it, as happens among the lower classes in Mexico . .

The men who smoke this herb become excited to such an extent that they go through periods of near frenzy, and worse, it is always aggressive as the crimes which have been committed in garrisons, armories, barracks, and the humble suburbs of Mexico [attest] .

In the South of the United States, this menacing evil has begun to appear, especially in the army and among the Negroes. . . .

[T] he authorities .    [must] uproot this malicious vice in its incipiency as it is growing even in the army among members of distinguished families and also as it is happening in Mexico among young men of good society; this, of course, is doubly lamentable.16

On 15 March 1920 the Department of Public Health of the Federal Government of Mexico published a "regulation concerning commerce in products that may be utilized to encourage vices degenerating the race and concerning the cultivation of plants that may be employed for such purpose," wherein the "cultivation and commerce of marihuana" was strictly prohibited.17

Class consciousness was a recurrent element in marihuana pro-hibition even in its infancy. Mexican-American patricians appealed to sentiments of Negro inferiority, and European-American officials appealed to sentiments of Mexican inferiority. Most interesting is the fact that Mexican-American physicians painted a more fantastic account of the drug's effects than did the El Paso police. Dr. Lopez, a member of the Association of Military Surgeons of the United States and former director of the General Hospital in Mexico City, alleged that smoking marihuana "causes hallucinations of both eye and ear," rendering the person under its influence "actually crazy and irresponsible for the time being." "Continued use of the drug," he observed, "causes the body to wear away as is the case with other drug fiends."18 Dr. Francisco de Ganseca, a graduate of the National School of Medicine in Mexico City, contended that "mad-ness is the final result," the drug being "worse than opium as it not only destroys the life of the person who smokes it, but causes him to take the lives of others."18 Another Mexican-American doctor contended that a person "under [marihuana's] influence may see a friend and imagine that he is an enemy and kill him."2°

From all accounts, marihuana use and tales of its destructive effects were prevalent in the border towns of Texas and New Mexico after 1910. One botanist from the U.S. Department of Agriculture noted in 1925 that "the plant . . . is used a great deal

. in Texas, Arizona and New Mexico, especially by the Mexicans. I have been told that a few years ago two guards in the penitentiary at Tucson, Arizona, were killed by a Mexican, while under the influence of the drug."21 An army botanist observed that the drug was used by Mexican railroad laborers and by inmates of the prison at Yuma, Arizona, and that a former superintendent of this prison had declared that "under its baneful influence reckless men be-come bloodthirsty, trebly daring and dangerous to an uncontrolla-ble degree." This same observer quoted an American consul from Nogales who noted in 1911 that use of the drug "causes the smoker to become exceedingly pugnacious and to run amuck without discrimination."22

The Mexican marihuana folklore apparently made a deep im-pression on any American who came in contact with the drug or its alien users. Having no reason to suspect the veracity of such tales, law enforcement officials and local representatives of the Customt and Agriculture departments of the federal government agitated for state and federal legislation to combat the "killer weed." The deputy sheriff of El Paso persuaded a local Food and Drug inspector to bring the matter to the attention of the chief of the Bureau of Chemistry in the federal Agriculture Department, the man with primary enforcement responsibility under the Food and Drug Act. Without any further investigation, the bureaucracy responded with the necessary administrative action: in 1915, after an official request by the secretary of agriculture, the secretary of the treasury issued a decision under the Food and Drug Act pro-hibiting importation of cannabis for other than medical purposes.23 (The Act itself required only that any quantity of cannabis con-tained in a retail product be explicitly designated on the label.)

On the state level, legislation was slow in coming. Marihuana use was still a local problem in the border towns of Texas, and it attracted little statewide interest. Finally, in 1919, the legislature included marihuana in a general statute, modeled after the Harrison Act, prohibiting transfer of certain narcotics except for medical purposes.24 The law's failure to prohibit possession or use reflected a continuing reluctance, under prevailing constitutional doctrine, to interfere with private (possessory) conduct. The judicial prece-dent in Texas for such restraint had been set in an alcohol case in 1897.25 Nevertheless, in 1923 the still hesitant legislators tightened the statute, but only to prohibit possession of narcotics with intent to se11.26 The 1923 legislation received extremely limited news-paper coverage. In its only direct reference to marihuana, the Austin Statesman briefly noted: "The McMillian Senate Bill amended the antinarcotic law so as to make unlawful the possession for the purpose of sale of any marihuana or other drugs. Marihuana is a Mexican herb and is said to be sold on the Texas-Mexican border."27 The El Paso Times did not mention the McMillian Bill before or after its passage.

In the same year New Mexico prohibited sale, cultivation, and importation of cannabis. Mere possession was not expressly pro-hibited, but anyone found in possession was presumed to have imported the marihuana illegally.28 This technique was apparently modeled after the federal Narcotic Drugs Import and Export Act of 1922. The Santa Fe New Mexican, hometown newspaper of the bilPs sponsor, paid scant attention:

The Santa Fe representative, however, had better luck` with his bill to prevent sale of marihuana, cannabis indica, Indian hemp or hashish as it is variously known. This bill was passed without any opposition. Marihuana was brought into local prominence at the penitentiary board's investigation last summer when a convict testified he could get marihuana cigarettes q.ny-time he had a dollar. The drug produces intoxication when chewed or smoked. Marihuana is the name commonly used in the Southwest and Mexico.29

Beets and Marihuana in the Rockies

Mexican immigration during the first third of the twentieth century increased enormously; the Bureau of Immigration records the entry of 590,765 Mexicans from 1915 to 1930. Two-thirds of these people remained in Texas. The others settled in states in the Rocky Mountain area, most of them as farm laborers.5° During this period practically every state west of the Mississippi River passed antimarihuana legislation (see map): California and Utah in 1915; Colorado in 1917; Texas in 1919; Iowa in 1921; New Mexico, Arkansas, Nevada, Oregon, and Washington in 1923; Idaho, Kansas, Montana, and Nebraska in 1927; Wyoming in 1929; South Dakota in 1931; and North Dakota and Oklahoma in 1933.31 Whether motivated by outright ethnic prejudice or by simple discriminatory lack of interest, the proceedings before each legislature resembled those in Texas and New Mexico in 1923. There was little if any public attention and no debate. Pointed references were made to the drug's Mexican origins, and sometimes to the criminal conduct which inevitably followed when Mexicans used the "killer weed."

Contemporary accounts and official correspondence uniformly suggest that marihuana-smoking was common in Colorado by the late twenties. Senator Phipps of that state manifested his own concern by plaguing the Washington bureaucracy endlessly. He prodded an unenthusiastic surgeon general into issuing a report on the dangers of marihuana and peyote in 1929,32 and he continually tried to force federal legislation out of a reluctant Bureau of Prohibition (later Narcotics).33 Although the bureau resisted the senator's pleas for some six years, for reasons we will explain in chapter 3, he did convince them that marihuana use had assumed "noticeable" proportions in Colorado.34

In May 1931 the agent in charge of the Denver division of the Bureau of Narcotics reported that marihuana was commonly grown in all the states in his jurisdiction, particularly in Colorado. When he found that the drug was marketed both in cigarette and loose, canned forms, the agent corroborated Phipps's contention that "the use of marihuana has noticeably increased during the past five years,"35 or since 1926. The Colorado legislature had first prohibited cultivation and sale of the drug in 1917.36 At that time, judging from the use of the Mexican term "mariguana" and from subsequent newspaper reports, the drug was "used almost exclu-sively ...by the Mexican population employed in the beet fields."37 Then, in 1927 the legislature prohibited possession and tightened the restrictions on distribution, raising the penalties for all violations in 1929.

Similarly, in 1929 the Montana legislature amended its general narcotics law to include marihuana, prohibiting use, sale, or posses-sion without a prescription.38 On seven different days from 24 June to 10 February, the date of the bill's passage, the Butte Montana Standard succinctly noted the progress of the bill through a legislature whose attitude was characterized in the 27 January issue:

There was fun in the House Health Committee during the week when the Marihuana bill came up for consideration. Marihuana is Mexican opium, a plant used by Mexicans and cultivated for sale by Indians. "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. I understand that over in Butte where the Mexicans often go for the winter they stage imaginary bullfights in the 'Bower of Roses' or put on tournaments for the favor of 'Spanish Rose' after a couple of whiffs of Marihuana. The Silver Bow and Yellowstone dele-gations both deplore these international complications." Every-body laughed and the bill was recommended for passage.39

About the same time, Mexican laborers had begun to appear in Idaho, and the mayor of Boise remarked: "The Mexican beet field workers have introduced a new problem—the smoking in cigarettes or pipes of marijuana or grifo. Its use is as demoralizing as the use
of narcottcs. Smoking grifo is quite prevalent along the Oregon Short Line Railroad; and Idaho has no law to cope with the use and spread of this dangerous drug."49 Idaho passed such a law in 1927.41

In 1931 the Texas legislature finally prohibited possession of marihuana. By now alcohol prohibition had withdrawn any philo-sophical barrier to making possession illegal. The San Antonio Light reported that: "At last the state legislature had taken a defi. nite step toward suppression of traffic in a dangerous and insanity-producing narcotic easily compounded of a weed (marihuana) indigenous to this section. . . . This newspaper has urged the passage of prohibitory legislation and is gratified that the solons at Austin have acted, even if tardily, in the suppression of traffic in a drug which makes the addict frequently a dangerous or homicidal maniac. "42

Setting out to enforce the new law by destroying patches of the weed, a local agent emphasized the difficulty of his task. There were a lot of patches to destroy because "consumption of this 'tobacco' has been very heavy among Mexicans and Negroes."43

Unexplained Prohibitions: California and Utah

The earliest marihuana prohibitions in the West were adopted by California and Utah in 1915.44 Satisfactory explanations for these incipient legislative responses remain elusive. On the one hand, it is clear that these prohibitions were directed at a drug with which someone was familiar. In California the drug was specifically added to a preexisting comprehensive antinarcotics package. And the Utah prohibition even extended to possession of pipes for smoking the drug. On the other hand, it does not appear likely that sufficient numbers of immigrants would have arrived in either state by this early date to arouse interest in them and their unusual habits. (There is much evidence of a sizable Mexican colony in Los Angeles fifteen years later.)45 We can only speculate.

In California it is possible that (Asian) Indian cannabis use inspired the same collision of curiosity and fear which had been aroused by Chinese opium prohibitions a generation earlier. In connection with preparation for the first Hague Conference in 1912, one of the U.S. delegates joined Dr. Wright of the State Depart-ment in requesting the inclusion of cannabis in the international accords. Henry J. Finger of the California Board of Pharmacy reported the concern of Californians, particularly in San Francisco, over a "large influx of Hindoos . . . demanding cannabis indica" and their claim that they would attract "the whites into their habit."46

In Utah no evidence of local concern has been discovered. Indeed, the proceedings of the General Conference of the Council of Elders reflect a serious concern with the use of drugs, particu-larly tobacco, during the second decade of the twentieth century, but marihuana was never mentioned.47 Unsupported conjecture suggests one possible explanation for the prohibition. The United States Supreme Court in 1878 had upheld congressional prohibi-tion of polygamy, rebuffing a Mormon claim that the law inhibited the free exercise of their religion.48 For the ensuing two decades, the federal government made little effort to enforce the decision. On 6 April 1890 the church reversed its own position, declaring continuation of the practice heretical. Some members of the church were unwilling to accept this capitulation and at Brigham Young's suggestion they moved to Mexico for marital sanctuary and to seek new prospects for conversion. Unfortunately their colonization was inhibited by the civil war and converts were difficult to find. Around 1912 the members of this renegade sect returned to Utah, albeit with only one wife apiece. We suspect they may have also returned with some knowledge of marihuana, which was soon translated into legislation reflecting the traditional aversion of the Mormon church to drug use of any kind.

The Battle of New Orleans

While Mexican immigrants were introducing marihuana to the border states and the Southwest, Caribbean sailors and West Indian immigrants were introducing the habit to ports along the Gulf of Mexico. Although use in the border states remained essentially an alien phenomenon, contemporary accounts suggest that marihuana-smoking became well established among certain segments of the native population in Houston, Galveston, and particularly in New Orleans.

Although there is evidence that some marihuana came to these areas from Mexico by way of Tampico and El Paso, most of it was smuggled in by enterprising sailors from Cuba and other points in the Indies. Around 1925 Dr. Frank Gomila, commissioner of Public Safety of New Orleans, began his campaign for federal legislation to supplement the Treasury Department's ineffectual 1915 ban on importation for nonmedical purposes. He observed that the traffic was quite organized, amounting to thousands of kilograms a year: "The custom was to keep [marihuana] in warehouses or store-rooms for further distribution. It was sold by the wholesaler to the retailer who in turn put the `weed' through a process known as 'sweating.' The dried leaves and stems were soaked in sugar water and dried on butcher's brown papers."49

If Gomila and the newspapers can be believed, the demand in New Orleans in the mid-twenties was so great that the "peddlers" were able to become exceptionally prosperous by dividing the market. One had exclusive jurisdiction over the blacks unloading the fruit boats, another over the lobby in a certain hotel, and so on. Marihuana was, of course, also available at local pharmacies without a prescription before 1919 in Texas and before 1924 in Louisiana.

After that, marihuana had to be bought on the street unless the user could obtain or forge a prescription.

Druggists in Houston reported in 1917 that their marihuana purchasers were no longer predominantly Mexican, but increasingly white—"sporting" women (prostitutes), gamblers, pimps, and "hop heads," some of whom were allegedly "having difficulty in obtain-ing their usual supply of dope."5° In Galveston the story was much the same. One druggist characterized his marihuana clientele as "Mexicans, a low class of whites, and East Indians coming off the boats." Another referred to "Mexicans, Negroes, and chauffeurs, and a low class of whites such as those addicted to the use of habit-forming drugs, and hangers-on of the underworld."51 Gomila suggests that in New Orleans about the same time, the previously unkgown practice rapidly became "more and more of common knowledge among the vicious characters of the city."52

Different pictures emerge of the marihuana user in El Paso and San Antonio on the one hand and New Orleans and Galveston on the other. In the border towns he was a Mexican laborer, indolent to sorrie, volatile to others. Local authorities were, by and large, unable to generate any significant public or political interest, although there were no political objections to making the Mexican weed illegal.

In the port cities, however, the marihuana user was a "dope fiend," the basest element of American society. He was a narcotics addict, a pimp, or a gambler; she was a prostitute.Marihuana was simply "another narcotic" in a city with a major "narcotic prob-lem." The issue was always open to sensationalism. Even before public attention was excited, however, the prevalence of marihuana use came to the attention of the president of the Louisiana State Board of Health, Dr. Oscar Dowling. On 21 August 1920 he advised the governor of the increasing availability of marihuana, a "power-ful narcotic, causing exhiliration, intoxication, delirious hallucina-tions, and its subsequent action, drowsiness and stupor. . . . " Apparently the drug had come to his attention through the arrest, conviction, and incarceration of a twenty-one-year-old musician convicted of forging a doctor's name to a prescription.53

At the same time, Dr. Dowling wrote to the surgeon general of the United States, Dr. Hugh Cummings, to advise him of the increasing traffic in morphine, opium, and marihuana, and to seek federal cooperation. It is interesting that Dr. Dowling was simul-taneously involved with federal officials in the effort to close the New Orleans morphine clinics;54 within a few years, none of the morphine clinics were open, and a maintenance approach to narcotics addiction was to be foreclosed for a half-century.55

Very little, however, was done about the marihuana issue until the press seized upon it. In the fall of 1926 the New Orleans Item dispatched an army of reporters among the smoking and selling population. A series of articles published by the more widely circulated Morning Tribune (both papers were owned by the same publishing company) exposed the immense profits being made peddling "muggles" or "moota" and commented upon the volatile effects of the drug upon its "addicts." It was reported that marihuana "numbs the sense, creates wild fancies and has a hypnotic effect upon the user, making his will easily subordinated to that of others."

What emerged from these articles, however, was not a vision of addicts on the streets and pushers on the docks. Rather, the public was encouraged to believe that the peddlers were men who lurked on playgrounds seeking to entrap young minds. "Over two hundred children under fourteen are believed to be addicted to the mari-huana habit," the paper reported, and at least forty-four schools were infected.56

Although it was quite clear that the "addicted" children were street-wise youths drawn from the same socioeconomic classes as the adult users, the impact was no less pointed. In those innocent early days of the juvenile court movement, harassed social workers, pastors, teachers, and dub women tended to attribute delinquent behavior to any identifiable defect in the physical and social en-vironment—in this case the marihuana menace.

Local policy makers wasted no time. The New Orleans Police Department immediately launched a roundup. They arrested more than 150 persons for violation of a law which had lain dormant for two years.57 Dr. Dowling reportedly soon circulated "a warning to parents, guardians and teachers of children against this menace."58 The Women's Christian Temperance Union jumped on the band-wagon, focusing their attacks on the "soft drink" bars which had sprung up all over New Orleans during prohibition: "The soft drink stand and the corner drug store have taken the place of the saloon as a social meeting place. Here is where marihuana and liquors can sometimes be bought."59
Beyond these immediate effects, a more substantial result of the local policy reaction in New Orleans was the formation of a tightly knit coterie of New Orleans law enforcement, public health, and social welfare officials, who would carry their antimarihuana campaign to Washington, with ultimate success.

Marihuana Comes to the Big Cities

The West Indies was one source for the marihuana that arrived in the port cities of America. Not long after the practice became established in the Gulf area, it seems to have appeared on a much smaller scale in New York City. During the twenties the commercial traffic which steamed up the Mississippi from New Orleans and Texas also spread Mexicans and marihuana to Chicago, Kansas City, Cleveland, Detroit, St. Louis, and other major commercial centers.

Large communities of Mexican laborers penetrated the industrial region,,on the southern shore of Lake Michigan during the 1920s. By 1930 the Mexican population in Chicago alone had reached approximately 30,000. Judging from all contemporary accounts, the "white" population, which included many second generation immigrants, exhibited considerable distaste for the new immigrants and their different habits of life. The Mexican customs and police prejudice were a highly cumbustible mixture, apparently resulting both in a disproportionately large number of Mexicans being ar-rested and in a belief among the "whites" that Mexicans were in-herently lawless.°

In a 1928 study of Mexican employment in the Chicago-Gary area, economist Paul Taylor found that discriminatory treatment by police was commonly perceived by Mexicans and was supported by available data. One native "white" observed: "The Mexicans get little protection in the courts. The Mexicans are now learning that you must buy justice. The police searched the Mexican houses without warrants (during the Mexican-Polish troubles) and let the crowd hit their Mexican prisoners while they were in cus-tody. The Mexican is in the same position as the Negro in the South. He is always wrong unless there is a white man to speak for him.,961 The author reported that a high percentage of the Mexi-can arrests were for disorderly conduct and other "status offenses" which are particularly susceptible to discriminatory enforcement. Alcohol offenses were similarly disproportionate, leading the author to observe, somewhat cynically, that

Mexicans are politically helpless. To what extent this fact makes them particularly liable to arrest is of course not readily determinable. Hypothetically, however, it is easy to see that a politically dry official could satisfy the drys with a large number of arrests and at the same time avoid offending his wet constitu-ents by arresting Mexicans. In fact, Mexicans, both Mexican- and American-born, are generally conscious of an inferior standing in the eyes of the law.62

Finally, Dr. Taylor attributed much of the social prejudice and perception of Mexican lawlessness to simple variations in custom:

Violation of our legal codes may and often does involve prac-tices which are less serious violations or even no violations at all of the customs and codes prevailing among this class of Mexicans in Mexico. . . . [T] o select a practice of Mexicans which is unquestionably dangerous, but which is no violation of their code, we may refer to the practice of carrying knives. We regard them as concealed weapons. In Mexico the common folk wear knives so habitually as to regard them practically a part of the dress.63

It is in this context that we must view the Mexican laborers' use of marihuana or "muggles" which apparently took local officials by surprise in 1927. One law enforcement official reported: "There are about 7,000 Mexicans in Gary, 10,000 in Indiana Harbor 'and 8,000 in South Chicago. . . . The Mexicans depend on the steel mills, railroads, and construction gangs for employment. Many are drifters when slack labor conditions prevail. . . . [T] wenty-five percent of these Mexicans smoke marijuana. In fact, many of them make their living by raising and peddling the drug."64

Such a situation seemed likely to infect the rest of the commu-nity. As in New Orleans, reports started to appear that high school students were smoking the weed.65 Then the dam broke. Since neither state nor federal legislation prohibited sale of marihuana, the local United States attorney declared war, armed with an internal revenut statute prohibiting production and transfer of "a cigarette substitute" on which tax had not been paid. In June 1929 he raided wholesale houses "believed to have disposed of large quantities of marihuana cigarettes, sold to school pupils and other youthful thrill-seekers," and arrested nin,e men, "most of them Mexicans."66 At the same time, local officials began to use a statute which prohibited transfer of "any cigarette containing any substance deleterious to health."67

The Chicago Tribune, lobbying heavily for antimarihuana legis-lation then pending before the Illinois legislature, breathlessly reported the day-to-day progress of the enforcement activity.° Every stall in the legislature earned a banner headline.

BAN ON HASHISH
BLOCKED DESPITE
RAVAGES OF DRUG

In an article appearing in June 1929 the paper noted: "The number of addicts is growing alarmingly according to authorities, because of the ease with which [marihuana] can be obtained. The habit was introduced a dozen years ago or so by Mexican laborers . . . but it has become widespread among American youths . . . even among school children." The specter of substitution was also raised: "There being no legal ban such as makes other drugs scarce, 'loco weed' is cheap. The rush of its popularity in Chicago and all over the country since the oncoming of Prohibition is partly ex-plained by the price of cigarettes, 3 for 50 cents or at most 30 cents apiece." Apparently the bill had been waylaid in a Senate committee by one senator, a druggist from Chicago, who "declared that the seed of the plant is used as birdseed." The Tribune was not convinced. They contacted a birdseed seller who disputed the senator's contention, but whatever the senator's reason, he success-fully killed the bill.°

To place the Tribune's epidemic description in perspective, it should be noted that representatives of the major local pressure groups (the WCTU, the Immigrant's Protective League, and the National Federation of Women Clubs) who became heavily involved in the marihuana issue several years later were essentially unfamiliar with marihuana even after the Tribune campaign.

Anticipatory Regulation in the East

Cannabis was produced and dispensed in the United States for medical use throughout the period of the first antinarcotics legisla-tion. The drug was mentioned in the poison laws of nine states,7° and in the course of bringing the pharmaceutical manufacturers, pharmacies, and physicians under regulatory control, a handful of states had enacted tighter restrictions on cannabis. In 1911 Louisi-ana prohibited refills of prescriptions containing cannabis or opiates, cocaine, chloroform, or hyoscyamics.71 Maine (1913), Massachusetts (1914), Vermont (1915), and Rhode Island (1918) all barred the sale of cannabis without a prescription as part of comprehensive regulatory laws.72

These early cannabis laws in the East were passed not in response to street use, since the intoxicant use of marihuana had not yet appeared in the Northeast, but rather in anticipation of future problems. The medical establishment in the Northeast was already familiar with the psychoactive properties of cannabis and with literary descriptions of the virtues of hashish. For example, Victor Robinson reported in 1912 on the nature of acute intoxication on the basis of self-administration and observation of ingestion by friends. His report was widely circulated.73 Among the most moralistic of the antinarcotics reformers there was little doubt that effective elimination of the curse of the "drug habit evil" demanded strict control over any and all potentially intoxicating substances to which addicts might resort once the opiates and cocaine became more difficult to obtain. Several authorities who spearheaded the development of the Harrison Act had even urged the inclusion of cannabis in that act despite the fact that the drug had not yet attracted any habitual users. The State Department's Dr. Hamilton Wright, who coordinated domestic and international aspects of the mushrooming antinarcotic movement, Cornell University's Dr. Alexander Lambert, who later became president of the AMA, and the Agriculture Department's Dr. Harvey Wiley, who had shep-herded the Pure Food and Drug Act through Congress, all testified in favor of covering cannabis by federal law.74

In response to these reform sentiments, the drug industry vehemently protested, contending that cannabis was an insignifi-cant medicine which had no place in antinarcotics legislation.A 1902 questionnaire to physicians and pharmacists sent by the American Pharmaceutical Association's Committee on the Acquirement of the Drug Habit covered the opiates, cocaine, and chloral hydrate but did not even refer to cannabis. Nor was cannabis included in the committee's 1903 model law which, after revisions, was adopted in 1905 by the National Wholesale Druggists Association (NWDA), the National Association of Retail Druggists (NARD), and the American Pharmaceutical Association. Charles West, chairman of the NWDA's legislative committee, argued in 1910 that "cannabis is not what may be called a 'habit-forming drug.' "75

The industry successfully resisted the inclusion of cannabis in federal legislation. But the reformers' purification sentiment easily accounts for the drug's inclusion in the initial Eastern prohibitions, especially after 1914 when the states were pressed to implement the gational policies declared in the Harrison Act.This hypothesis is supported by the New York experience.

In January 1914 the New York legislature passed its first comprehensive narcotics statute—the Boylan Bill—which regulated the sale and use of "habit-forming" drugs.76 The bill did not include, marihuana in this classification. A few months later, however, the Board of Health of New York City amended its sanitary code by adding "Cannabis indica, which is the Indian hemp from which the East Indian drug called hashish is manu-factured,"77 to the city's list of prohibited drugs. Reporting this action, the New York Times described cannabis as a "narcotic [having] practically the same effect as morphine and cocaine,"78 and it noted in an editorial that: "The inclusion of cannabis indica among the drugs to be sold only on prescription is only common sense. Devotees of hashish are now hardly numerous enough here to count, but they are likely to increase as other narcotics become harder to obtain."79

As late as 1918 a state legislative committee which had exhaus-tively investigated the narcotics problem in New York did not mention marihuana.88 Nevertheless, by 1921 at least one writer noted an increase in marihuana use. He sounded the alarm in the title to his work—From Opium to Hashish—and raised new fears. Marihuana could be used as a substitute not only for opium and morphine but also for alcohol, which had recently been suppressed by the Volstead Acts' Marihuana was not the only focus of the substitution argument, as one commentator had warned in 1919: "Cocaine in particular is in great demand. When prohibition is in force, persons, especially drinkers from compulsion of habit who have been robbed of the daily drink, will naturally resort to cocaine."82

By 1923 the New York Times referred to marihuana as the city's "latest habit-forming drug" when reporting its exhibition at a women's club meeting.83 In 1927 the legislature included mari-huana in its list of "habit-forming drugs" in a comprehensive narcotics bill." As will be discussed in chapter 4, the 1927 New York law was drafted by an AMA committee; we suspect, there-fore, that the inclusion of cannabis was not attributable to any significant increase in use in the city. If marihuana use was increasing, however, it was not attracting attention. During the period from 1914 to 1927 the New York newspapers were replete with articles dealing with narcotic addiction; yet only four brief references were made to marihuana in the New York Times.85 Public concern was focused on drug problems at the time of the 1927 act; yet none of the postenactment comments on the act referred to marihuana."

Probably the best description of the nature of marihuana use in New York about this time appears in a 1930 report by a federal agent on the basis of an undercover survey. He portrayed a small-time, unorganized traffic with a limited ethnic clientele. One user said she "got her supply . . . from Spaniards and East Indians working as members of the crew on boats belonging to the Ugited Fruit Lines and other boat lines touching South American, Mexican and Cuban ports. . . ." Another woman revealed that

her husband was a steward on the Bull Line Ships running between Cuba, Mexico and South American countries; that the marihuana was purchased by her husband in Cuba and he brought it into the United States in 10 and 15-pound lots, and he could bring in a larger quantity on order ... (and) that she made up the packages of marihuana for sale to the trade, which consisted mostly of Spaniards, East Indians, Filipinos, and a few Ameri-cans, both white and colored.87

In New York during the first quarter of the twentieth century, a reforming zeal impelled an attack on the narcotics menace, particularly after prohibition. Every intoxicant posed a threat, whether or not its use was common. Judging from contemporary accounts, marihuana use was rare outside areas of ethnic concen-tration. Thus, the enactment of statutory proscriptions in 1927 was axiomatic and did not constitute a matter of public concern, even within the medical and law enforcement communities.

Local Prohibition: A Legend Disputed

It has become fashionable in recent years to attribute the illegal status of marihuana to the Federal Bureau of Narcotics and its long-time head, Harry J. Anslinger. Such a theory has been particu-larly popular among those seeking to alter the existing public policy since it implies that what was done by one man is not entitted to the deference which a more broadly based policy would enjoy.

However, the recent public policy emerged in a more subtle, less controversial fashion. Although the federal narcotics bureau-cracy, with Commissioner Anslinger at the helm, was to become marihdana's leading antagonist in the mid-thirties, a restrictive public policy toward the drug was well rooted locally before that time. During the "local" phase of marihuana prohibition, lasting roughly from 1914 to 1931, twenty-nine states, including seventeen west of the Mississippi, prohibited use of the drug for nonmedical purposes. (Four more states did so in 1933.)

The most important feature of this initial prohibitory phase is that marihuana was inevitably viewed as a "narcotic" drug, thereby invoking the broad consensus underlying the nation's recently enunciated antinarcotics policy. This classification emerged pri-marily from the drug's alien character. Although use of some drugs —alcohol and tobacco—was indigenous to American life, the use of "narcotics" for pleasure was not. Evidently, drugs associated with ethnic minorities and with otherwise "immoral" populations were automatically viewed as "narcotics." The scientific community shared this social bias and therefore had little interest in scientific accuracy.

From this instinctive classification of marihuana with opium, morphine, heroin, and cocaine flowed the entire set of factual supports on which narcotics prohibition rested. Marihuana was presumed to be addictive, its use inevitably tending to excess. Since its users—Mexicans, West Indians, blacks, and underworld whites—were associated in the public mind with crime, particularly of a violent nature, the association applied also to marihuana, which had a similar reputation in Mexican folklore. Since the natiôn was preoccupied during the twenties with lawlessness, especially among the foreign born, this association was a strong one.

To the idea of an alien cancer in the social organism was added the inevitable fear that it would spread. In New" Orleans, Denver, and Chicago the specter of a doped school population was' the cornerstone of the prohibitory effort. And during alcohol prohibi-tion, paralleled by the local phase of marihuana prohibition, it was naturally imperative to suppress a drug which frustrated alcohol users might substitute for their customary intoxicant.

In short, marihuana prohibition was a predictable phenomenon. In states where either Mexicans or the weed had appeared, suppres-sing its use required no public clamor or citizens' movement; soon after being apprised of its presence, local lawmakers invoked the criminal law, and some also turned to Washington for assistance.

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Notes

1. The Bureau of Immigration recorded the entry of 590,765 Mexicans into the United States between 1915 and 1930. Of these, upwards of 90 percent in each year were to be resident in the twenty-two states west of the Mississippi, and more than two-thirds were to reside in Texas alone. Information compiled from Tables, Immigrant Aliens, by States of Intended Future Residence and Race on Peoples, published annually from each fiscal year from 1915 to 1930 in Commissioner General of Immigration Annual Report.
2. "Report of Investiption in the State of Texas, Particularly along the Mexican Border, of the Traffic in, and Consuznption of the Drug Generally known as 'Indian Hemp' or Cannabis Indica, known in Mexico and States Bordering on the Rio Grande as 'Marihuana% Sometimes also referred to as 'Rosa Maria,' or 'Juanita,' " filed by R. F. Smith to Dr. Alsberg, chief of the Bureau of Chemistry, United States Department of Agriculture, 13 Apr. 1917, pp. 10-12, in Federal Bureau of Narcotics files (hereafter cited as "1917 Investigation").
3.    Ibid., pp. 13-15.
4. M. V. Ball, "Marihuana: Mexican Name for Cannabis, Also Called Loco Weed in Certain Parts of Texas," May 1922, in the "Report of Committee Appointed by the Governor of the Canal Zone, April 1, 1925, for the Purpose of Investigating the Use of Marihuana and Making Recommendations Regarding Same and Related Papers" (Balboa Heights, Canal Zone), pp. 55-60. (The Canal Zone Report is an unpublished document hereafter cited as "Canal Zone Report," 18 Dec. 1925. The related Papers are a group of heretofore unpublished documents, hereafter cited as "Canal Zone Papers," which may be found in the National Archives. A copy of these materials is on deposit with the University of Virginia Law Library in Charlottesville, Va. Page references are' to the latter copy, which has been ordered chronologically and paginated by the authors.)
5.    "1917 Investigation," p. 9.
6.    Ibid., p. 13.
7.    Ibid., p. 9.
8. Ball, "Marihuana: Mexican Name for Cannabis."
9.    "1917 Investigation," p. 36.
10.    Ibid., p. 37.
11.    Ibid., p. 35.
12.    Ibid., pp. 38-39.
13.    Ibid., p. 9.
14. Testimony of Dr. Hesner before Committee on Use of Marihuana, 5 Dec. 1925, "Canal Zone Papers," p. 31.
15. W. E. Safford, economic botanist, to Dr. E. R. Hodge, chemist, Medical Department, U.S. Army, "Canal Zone Papers," pp. 106-7.
16.    "1917 Investigation," pp. 17(d)-17(e).
17. Mexico, Department of Public Health, "Regulations Concerning Commerce in Products That May Be Utilized to Encourage Vices Degenerating the Race, and Con-cerning the Cultivation of Plants That May Be Employed for Such Purpose," 15 Mar. 1920, "Canal Zone Papers," pp. 130-32.
18.    "1917 Investiption," p. 176.
19.    Ibid., p. 29.
20.    Ibid., p. 30.
21.    Paul C. Standley, associate curator, Division of Plants, Smithsonian Institution, to Mr. Holger Johansen, 18 June 1925, "Canal Zone Papers," pp. 15-16.
22. Safford to Hodge.
23.    Treasury Decision 35719, 25 Sept. 1915.
24.    Texas, General Laws (1919), ch. 150, pp. 277-79, at 278.
25. Ex parte Brown, 38 Tex. Crim. 295, 42 S.W. 554 (1897) (alternative holding).
26.    Texas, Special Session Laws (1923), ch. 61, pp. 156-57.
27.    Austin Statesman, 19 June 1923.
28. New Mexico, New Mexico Laws (1923), ch. 42, secs. 1-2, pp. 58-59.
29. The New Mexican (Santa Fe), 31 Jan. 1923.
30.    See n. 1, supra.
31.    State Laws (1931), pp. 44, 48, 112, 194, 200, 306. See citations to map.
32.    L. C. Nutt, deputy commissioner, to J. K. Caldwell, Department of State, 11 May 1929.
33.    See, e.g., L. C. Nutt to Senator Phipps, 25 Jan. 1929 and 4 June 1930.
34. Marihuana (Evanston, Ill.: National Women's Christian Temperance Union Pub. House, 1928), p. 1 (hereafter cited as WCTU, Marihuana [19281-).
35.    L. R. McQuillin to commission, 22 May 1931.
36.    Colorado, Colorado Laws (1917), ch. 39, p. 120; ch. 66, p. 186.
37. Rocky Mountain News (Denver), 27 Sept. 1931.
38. In 1927 the Montana Legislature had included marihuana in the general narcotics statute (Montana, Montana Laws [1927], ch. 91, sec. 1, p. 324). The 1929 bill extracted marihuana from the statute, creating separate offenses for use, sale, or possession of marihuana without a prescription (Montana, Montana Laws [1929], ch. 6, p. 5).
39. Montana Standard, 22 Jan. 1929, p. 3, col. 2.
40.    WCTU, Marihuana (1928), p. 3.
41.    State Laws (1931), p. 98.
42.    San Antonio Light, 4 May 1931 (editorial). 43'. Agent-in-charge to commissioner, 26 Aug. 1931 and 9 Sept. 1931.
44.    State Laws (1931), p. 289.
45.    P. S. Taylor, "Crime and the Foreign Born: The Problem of the Mexican," National Commission on Law Observance and Enforcement (Wickersham Commission), Report on Crime and the Foreign Born, report no. 10 (Washington, D.C.: GPO, 1931), pp. 201-15 (hereafter cited as Taylor, "Crime and the Foreign Born," Wickersham Report,,-no. 10).
46.    H. J. Finger to Dr. Hamilton Wright, 2 July 1911, in Preliminary Inventories, no. 76, Records of United States Participation in International Conferences, Com-mi.ssions and Expositions, no. 39, "Correspondence of Wright with Delegate Henry J. Finger, 1911" (Washington, D.C.: National Archives, 1955), quoted in Musto, "'The Marihuana Tax Act of 1937," Archives of General Psychiatry, 26 (1972), 101-8.
47.    See General Conference of Council of Elders, 6-9 Apr. 1911 (rernarks of President Anthon H. Lund); 5-7 Apr. 1912 (remarks of Elder Hyrum M. Smith); 4-6 Oct. 1913 (remarks of President Joseph F. Smith, Elder David O. McKay); 4-6 Apr. 1914 (remarks of Elder Herbert J. Grant, Elder David O. McKay), Salt Lake City.
48.    Reynolds v. United States, 98 U.S. 145 (1878).
49. F. R. Gomila and M. C. Gomila Lambow, "Present Status of the Marihuana Vice in the United States," in Marihuana: America's New Drug Problem, ed. R. Walton (Philadelphia: Lippincott, 1938), p. 29.
50.    "1917 Investigation," pp. 72-79.
51.    Ibid., pp. 80-84.
52. Gomila and Lambow, p. 29.
53. Dowling to governor of Louisiana, 21 Aug. 1920, United States surgeon general's files.
54. Dowling to Acting Surgeon General Periz, 3 Dec. 1920; Treasury Department Report on Investigation of Narcotics Dispensory Programs, 25 Mar. 1921.'(In the files of the surgeon general for the period 1921-23.)
55. See generally A. Lindesmith, The Addict and the Law (Bloomington: Indiana Univ. Press, 1965), pp. 135-61; King, "Narcotic Drug Laws and Enforcement Policies," Law and Contemporary Problems, 22 (1957), 124-26. For a savage contemporary attack on the clinic system by a well-known supporter of the law enforcement strategy, see Stanley, "Narcotic Drugs and Crime," Journal of Criminal Law and Criminology, 12 (1921), 110.
56. Gomila and Lambow, pp. 29-31; WCTU, Marihuana (1928).
57. WCTU, Marihuana (1928).
58.    Ibid., p. 1.
59.    Ibid., p. 3.
60. Taylor, "Crime and the Foreign Born," Wickersham Report, no. 10, pp. 220-35.
61.    Ibid., pp. 230-31.
62.    Ibid., p. 238.
63.    Ibid., pp. 239-40.
64. Memorandum from Arthur E. Paul, chief, Chicago Station, Food, Dfug, and Insecticide Administration, U.S. Department of Agriculture, to chief, Central District, 27 June 1929, p. 4.
65.    Ibid., p. 1; Chicago Tribune, 3 June 1929.
66. Chicago Examiner, 22 June 1929.
67. Chicago Examiner, 19 June 1929.
68. Chicago Tribune, 17 Oct. 1929; see also Chicago Tribune, 1 July 1928, where an article entitled "New Giggle Drug Puts Discord in City Orchestras" reported that marihuana addiction was common among local musicians. The paper noted that mari-huana "is an old drug but was generally introduced into the country only a few years ago by the Mexicans. It is like cocaine. In the long run, it bends and cripples its victims. A sort of creeping paralysis results from long use."
69. Chicago Tribune, 3 June 1929.
70.    State Laws (1912), pp. 18-19.
71.    Ibid., p. 124.
72.    Ibid., pp. 34-41.
73. V. Robinson, "An Essay on Hasheesh: Historical and Experimental," Medical Review of Reviews, 18 (1912), 159-60, 300-312. Dr. Robinson's essay was reprinted in book form by E. H. Ringer of New York in 1912 and appeared in a second edition in 1925.
74. U.S., Congress, House, Committee on Ways and Means, Hearings on Impor-tation and Use of Opium, 61st Cong., 3d sess., 14 Dec. 1910 and 11 Jan. 1911.
75.    Ibid., 11 Jan. 1911.
76. New York, New York Laws (1914), ch. 363, p. 1120.
77. New York Times, 30 July 1914, p. 6, col. 12.
78.    Ibid.
79. New York Times, 30 July 1914, p. 8, col. 4.
80. New York, Senate, Joint Legislative Committee to Investigate the Laws in Relation to the Distribution and Sale of Narcotic Drugs, Final Report (Albany, 1918), Doc. no. 35.
81. Simon, "From Opium to Hash Eesh," Scientific American, Nov. 1921, pp. 14-15.
82. Weber, "Drugs and Crime,"Journai of Crime and Criminology, 10 (1919), 370.
83. New York Times, 11 Jan. 1923, p. 24, col. 1.
84. New York, New York Laws (1927), ch. 672, p. 1695.
85. In addition to the Women's Club demonstration noted at n. 59, supra, the New York Times (29 Dec. 1925, p. 10, col. 7) reported that the drug had been banned in Mexico. One year later, the paper reported the results of the Panama Canal Zone study on the effects of marihuana, noting the investigator's conclusion that no legis-lation was necessary to prevent sale or use of the drug (21 Nov. 1926, sec. 2, p. 3, col. 1). The Times later reported that a Mexican family was said to have gone insane from eating marihuana (6 July 1927, p. 10, col. 6).
86.    See New York Times, 25 Mar. 1927, p. 4, col. 6; 6 Apr. 1927, p. 13, col. 2.
87. Memorandum from Ralph H. Oyler, FBN agent-in-charge, New York, to Acting Commissioner Anslinger, 6 June 1930.

 

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