Bluebird’s Conversations About Cannabis: How Did It Become Illegal?

From 2012 to 2018, 33 states and the District of Columbia have legalized marijuana for medical consumption, with D.C. and 10 of those states also allowing for recreational use. Hemp was also made legal at the federal level in 2018 with the passage of the U.S. Farm Bill. This rapid shift in policy has many people wondering: why was cannabis illegal in the first place?

Cannabis prohibition in the U.S. was largely motivated by social factors and came about in several waves. Cannabis had been a well-known and widely grown crop in the U.S. since about 1850, used for everything from clothing and maps to ship rigging and medicine. But, in 1910, racism directed at Mexican immigrants — who had largely fled to the U.S. to escape conflict associated with the Mexican Revolution — acted as the origin for fearmongering directed at the cannabis plant.

Americans, though familiar with the plant, utilized “cannabis” as its primary descriptor, meaning the door was wide open for the bastardization of the term “marihuana.” This allowed certain localities to use marijuana as a way to defame the character of Mexican immigrants and as catalyst for suspicion and eventual deportations. Essentially, a few powerful people used fear about drugs and other cultures as a means to establish policies to further their own agendas.

The continuation and advancement of cannabis prohibition largely followed these themes of misinformation and marginalization. As the century wore on, public opinion on drug use ebbed and flowed between stringent laws and radical pushback. Join Bluebird Botanicals in one of our “Conversations About Cannabis, ” as we explore this timeline of how cannabis transitioned from an industrial crop and patent medicine to an illegal substance — as well as how education and current events are shifting the needle back again.

Early cannabis usage

In the early days of the U.S. colonies, industrial hemp cultivation was commonplace. While medicinal usage of cannabis was not yet widespread, hemp was actually required by law to be grown by farmers in several colonies. Hemp was often exported back to Europe, used as a source for fiber used in making rope, paper, and other industrial goods. Hemp continued to be a cash crop for many agrarian regions of the U.S. until the early 20th century.

In the early 1900s, all drugs, plants, potions or other concoctions could be bought and sold just like any other common good. Alongside industrial hemp, cannabis became widely utilized as a patent medicine during the 19th and early 20th centuries, described in the United States Pharmacopoeia for the first time in 1850.

However, journalists began drawing attention to the less-than-sanitary conditions in many industries, especially within food and medicine. The publication of Upton Sinclair’s novel The Jungle in 1905 provided a harrowing representation of the repugnant conditions and rampant corruption within the meatpacking industry. This proved to be the catalyst for a legislative regulatory response. The Pure Food and Drug Act of 1906 was passed, and proper labeling became law, with “the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs or medicines, and liquors,” expressly prohibited.

At the same time cannabis tinctures were becoming prevalent in pharmacies, concern regarding the psychoactive effects of hemp’s cousin, marijuana, began to permeate the cultural dialogue. Couple this with the marginalization of minorities and fear-driven racism, and the policies that once mandated the growth of hemp began to shift to make cannabis illegal.

Racist motivations and cannabis confusion

Between 1910 and 1920, the early rumblings of outright prohibition were initiated by Randolph Hearst’s “yellow journalism” in a partnership with Harry J. Anslinger, one of the strongest proponents of anti-cannabis sentiments of the era. Mexican immigrants, and in some places Indian immigrants, were demonized by Anslinger’s propaganda, along with their cultural artifacts and habits. This included both “Indian hemp” and “Marihuana.” Ansligner even noted so bluntly, “There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use.”

Meanwhile, cannabis was used commonly by a variety of both European and American doctors. The term marihuana, in fact, was used in the newspapers to circumvent much of the knowledge of doctors and make the issue more about Mexican immigration. It created a rift between an herb that many medical professionals were already familiar with and a supposedly dangerous narcotic brought by foreigners, despite the fact that they were actually the same plant.

While part of the confusion around cannabis stemmed from purporting something known to be something foreign, further attempts to control the plant were made under the guise of labeling it as a “poison.” Misinformation was a large contributing factor in making cannabis illegal. Some publications actually misconstrued cannabis as a poisonous weed called locoweed, which was in fact an entirely different plant species that does cause toxic effects in livestock and other animals.

This combination of racist scapegoating and misinformation steamrolled over the known benefits of the cannabis plant and paved the way for its later classification as a criminal substance.

From taxation to criminalization

Much of the power of regulators at this time was rooted in taxation. The 10th Amendment prevented federal regulators from attempting to make cannabis illegal outright, as that power was reserved for individual states. As a result, the first significant government moves against cannabis did not ban medical use of the plant nor completely prohibit it, but instead used a tax to dissuade use.

While the Marihuana Tax Act of 1937 did not come to fruition until several years later, the establishment of the Federal Bureau of Narcotics, headed by the aforementioned Anslinger, got the ball rolling in 1930. While criticism of the misidentified “locoweed” was primarily a regional phenomenon at the beginning of the 1930s, the passage of the Uniform Narcotic Drug Act in 1932, which contained an optional provision including cannabis, expanded the condemnation of cannabis to the national level.

The origin of real federal prohibition then began with the Marihuana Tax Act. While this act did not technically make cannabis illegal, the penalties for failing to abide by the tax were so inordinate that it acted as a strong motivator for avoiding cannabis altogether. The penalties started with a $2,000 fine  — roughly $35,890 by today’s standards, accounting for inflation  — and five years in prison for failing to account for this tax. Legislation that followed further morphed penalties to include the potential to garner a life sentence for selling a single marijuana cigarette to a minor. While it was written and voted into law as a “taxation” act, the Marihuana Tax Act effectively became a way for Anslinger’s organization to prosecute people for cannabis use.

Prohibition continued to grow stronger through the 1950s, which saw the introduction of “mandatory sentencing” laws. Mandatory sentencing laws or “mandatory minimums,” refer to criminal penalties requiring, upon conviction of a crime. These really kicked off in 1951 with The Boggs Act, which detailed mandatory minimum sentences for drug offenses. Five years later, Congress passed the Narcotics Control Act, which increased these mandatory minimum sentences to five years for a first offense and ten years for each subsequent drug offense.

While some relaxation of prohibitive laws occurred in the 1960s, the 1970s experienced a rebound effect with penalties for drug crimes becoming even more severe.

The Controlled Substances Act and individual state law

The early 1970s brought harsh new anti-drug moves, such as the passage of the Controlled Substances Act (CSA) and the establishment of the Drug Enforcement Administration (DEA) we all know today. The CSA was signed into law by Richard Nixon. This act removed medical rules previously allowing cannabis under the prescription of a doctor, and designated cannabis as a Schedule I narcotic with “no accepted medical usage.”

The Schedule I categorization in direct contradiction to the advice given by the commission appointed to study cannabis. This commission, chaired by Raymond P. Schafer, recommended that both federal and state legislatures should amend existing law so that the use and possession of cannabis would no longer be a criminal offense. The reasoning behind the commission’s recommendation was that, “the actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.”

Given the juxtaposition of research-based recommendations and harsh criminal laws, a movement to decriminalize cannabis began to take shape. In 1978, New Mexico passed legislation allowing for medical research on cannabis. In 1979, Virginia passed a law enabling doctors to prescribe cannabis for glaucoma or for the side effects of chemotherapy.

However, the pattern of oscillation continued and drug laws again made a U-turn in the 1980s. Criminal condemnation and a focus on keeping cannabis illegal once again began to dominate the public discourse.

Three strikes, you’re in (prison)

The Sentencing Reform Act of 1984, passed during the Reagan Administration, intensified prison sentences for drug crimes and eliminated the parole system. Eventually, the “three strikes” rule for drug offenses was implemented, often resulting in lifetime sentences for nonviolent cannabis crimes.

Several highly publicized events including the death of Len Bias by cocaine overdose drove politicians to seek more serious sentencing measures for even simple possession of controlled substances, cannabis included. The Anti-Drug Abuse Act of 1986 amended the 1970s CSA to alter the threshold quantities and kinds of controlled substances, resulting in enhanced penalties for both juveniles and adults involved with controlled substances.

The beginning of the end for cannabis prohibition

From the late 1980s to the mid-1990s, the legal conversation about cannabis again began to shift. This was in part due to the American perception of jail more as a punishment than an opportunity for rehabilitation, the disproportionate impact harsh drug policies had on people of color, and these tough laws’ lack of impact on reducing crime rates.

Cannabis prohibition started to lose ground with California’s 1996 decision to legalize medical cannabis in the state. Known as Proposition 215 or the “Compassionate Use Act,” it was the first major liberal cannabis law since several states had moved to decriminalize in the 1970s. Many states have since followed California’s lead. Oregon, Alaska, Washington and Maine all legalized medical cannabis prior to 2000. Medical cannabis programs were rolled out in many states through the early 2000s, and continue to gain ground in even conservative-leaning states to this day.

The push for outright legalization gained significant ground in 2012 when Washington and Colorado legalized adult-use cannabis through voter-approved ballot initiatives. Alaska and Oregon followed suit in 2014. In 2016, California, Nevada, Maine and Massachusetts all approved adult-use legalization. This trend has continued with both more states legalizing medical cannabis and adult-use cannabis at a rapid rate.

The future of cannabis

Now, legalization is advancing on several fronts in the U.S. and around the world. While D.C. and 10 other states have legalized recreational cannabis programs, and many states do still consider cannabis illegal, there are a few different pieces of pending legislation that could change the game for cannabis.

Several federal legislators have voiced opinions that full adult-use legalization of cannabis may be in the cards as early as this year, which would mean an end to the nearly 100 years of cannabis prohibition in the United States. With so much momentum behind the movement to legalize cannabis, a return to the once-prevalent allowance and usage of this versatile plant may not be too far in the future.

Related Article: Progress to Legal Cannabis in All 50 States

You can also stay up to date with current cannabis legislation by following weekly updates on U.S. legislation in the Legislative Roundup from NORML.