Drugs and Crime: Legal Aspects

At the beginning of the twentieth century, the use of (what are now) illicit substances was virtually unregulated. Although several states outlawed the smoking of tobacco and the drinking of alcohol, Americans were free to buy opiates (primarily opium and morphine) and cocaine in a variety of forms. These substances were widely dispensed by doctors, and available for purchase in pharmacies, retail outlets, and even by mail order. Many popular patent medicines contained mixtures of opiates and cocaine. Although millions of Americans consumed these substances throughout the nineteenth century, these drugs were rarely linked with deviance, violence, crime, or other social pathologies often associated with illicit drugs today. At the time, the typical opiate addict was a southern, middle-age, middle-class white woman. Relatively few users were addicts. Many of those users who were addicts did not know the contents of the patent medicines that helped to make them feel better.

The first significant federal drug regulation—the Food, Drug and Cosmetic Act of 1906—required manufacturers to list the drugs contained in their products. As a result of better information, the sales of patent medicines containing opiates and cocaine plummeted, and the incidence of illicit drug use and addiction declined. Further steps were advocated by a coalition of religious leaders, health professionals, and xenophobic Americans worried about the behavior of immigrants. The subsequent decade introduced sweeping federal regulations, culminating with the national prohibition of alcohol in 1920. Although local ordinances dating to 1875 forbade modes of drug consumption preferred by immigrants and minorities—such as the smoking of opium—the first prohibitionist measure on the federal level was the Harrison Narcotics Act of 1914. This act did not explicitly prohibit the use or possession of narcotics, but required doctors and chemists to register, pay taxes, and keep records of drug transactions. In 1919, the Supreme Court (in Webb v. United States, 249 U.S. 96) construed the act to prohibit physicians from prescribing narcotics to treat the "disease" of addiction. By the 1920s, the United States had reached a consensus that neither opiates nor cocaine had a legitimate use except for a handful of medical purposes. As a result, recreational use and addiction were transformed from medical problems to a concern for the criminal justice system. By this time, the demographic profile of the typical opiate or cocaine user had changed dramatically. The use of opium and cocaine had declined among the middle classes, but had risen among minorities and the poor. Although alcohol prohibition was repealed in 1933, no significant group called for the repeal of prohibitions of opiates or cocaine.

Although marijuana was not included in the Harrison Act, thirty-three states had adopted legislation against the nonmedical distribution of marijuana by 1933. In 1937, Congress effectively added marijuana to the list of illegal substances by passing the Marihuana Tax Act—enacted under the state's taxing power to avoid a constitutional challenge to a law enacted under the power to regulate interstate commerce. In 1961, through the United Nations Single Convention on Narcotic Drugs, fifty-four nations agreed to prevent illicit traffic in cannabis.

LSD, discovered by a Swiss chemist in 1938, was frequently used in psychotherapy, but prohibited in 1966 when medical opinion turned against its safety and effectiveness. MDMA, or ecstasy, also originally developed as a therapeutic drug, was banned in 1985—despite continuing opposition from a vocal group of psychiatrists.