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The
Forbidden Fruit and the Tree of Knowledge: an Inquiry into the Legal History of
American Marijuana Prohibition (Extracts
from)
by Richard J. Bonnie* & Charles H. Whitebread, II**,
Virginia Law Review,
Volume 56, October, 1970, Number 6*Assistant
Professor of Law, University of Virginia. B.A., 1966, Johns Hopkins University;
LL.B., 1969, University of Virginia.
**Assistant Professor of Law, University
of Virginia. A.B., 1965, Princeton University; LL.B., 1968, Yale University.Mr.
Snell. What is the bill? Mr.
Rayburn. It has something to do with something that is called marihuana. I
believe it is a narcotic of some kind. Colloquy
on the House floor prior to passage of the Marihuana Tax Act. Introduction
We wish to express
our sincere appreciation to the students who assisted us in the preparation of
the tables at Appendix A. Because the drug statutes of the several states are
particularly confusing and difficult to find, and because so many jurisdictions
have recently changed their drug laws, the preparation of the chart required long,
tedious work which so many were kind enough to perform. To them, our most sincere
thanks. We should
like to thank especially Michael A. Cohen, John F. Kuether, W. Tracey Shaw, Alan
K. Smith, and Allan J. Tanenbaum, all students at the University of Virginia School
of Law, whose research assistance and tireless effort were invaluable. We
are particularly indebted to Professor Jerry Mandel who supplied us with much
of the raw data used in the historical case studies in this Article. In his excellent
article on drug statistics in the Stanford Low Review, Problems with Official
Drug Statistics, 21 STAN. L. REV. 991 (1969), Professor Mandel suggested in a
footnote that someone should attempt a history of the passage of anti-marijuana
legislation. We have followed his suggestion and earnestly hope that our product
will fill this gap. A
modified and expanded version of this Article will be published in book form in
the spring of 1971.
TABLE
OF CONTENTS I.
INTRODUCTION II.
THE ANTECEDENTS: CRIMINALIZATION OF NARCOTICS AND ALCOHOL - A.
A Review of the Temperance Movement
- B.
Anti-Narcotics Legislation to 1914
- C.
The judicial Role and the Constitutional Framework: The Police Power and Intoxicant
Prohibition to 1920
III.
THE GENESIS OF MARIJUANA PROHIBITION IV.
PASSAGE OF THE UNIFORM NARCOTIC DRUG ACT: 1927-1937 - A.
Origins of the Uniform Law
- B.
Drafting the Law
- C.
Passage of the State Laws
- 1.
Use Patterns and Public Knowledge: 1931-1937
- 2.
Role of the Federal Bureau of Narcotics
- 3.
Legislative Scrutiny and Media Coverage
- 4.
Available Medical Opinion
- Provisions
of the Uniform Narcotic Drug Act and Supplemental Virginia Marijuana Statute
- (a) Classification and
Offenses
- (b)
Penalties
V.
PASSAGE OF THE MARIHUANA TAX ACT OF 1937 VI.
THE 1950's: HARSHER PENALTIES AND A NEW RATIONALE-THE "STEPPING STONE"
THEORY - A.
The Boggs Act and Its Progeny: The First Escalation
- 1.
The Problem: Increased Narcotics Use
- 2.
The Solution: Harsher Penalties
- 3.
Marijuana and the Boggs Act
- (a)
Increased Use
- (b)
Youthful Users
- (c)
The Danger: A New Rationale
- 4.
The State Response: Mindless Escalation
- B.
The Late 1950's: Another Escalation of the Penalties
- 1.
Provisions of the Narcotic Control Act of 1956
- 2.
Marijuana: Along for the Ride
- 3.
Trafficking Patterns
- 4.
Origin and Use
- 5.
Enforcement Patterns
- 6.
The Epitome of Irrationality: Virginia's 1958 Amendment
VII.
MARIJUANA USERS IN THE COURTS: 1930-1965 - A.
Statutory Fantasies: The Complications of Federal Legislation
- 1.
Quadruple "Jeopardy" and the "Killer Weed
- 2.
Statutory Presumptions
- B.
Attacks on State Legislation
- C.
Procedural Defenses and Entrapment
- 1.
Search and Seizure
- 2.
Entrapment
- D.
The Pro Forma Trial
VIII.
THE PUBLIC DISCOVERS THE TRUTH ABOUT MARIJUANA IX.
MARIJUANA LEGISLATION CLASHES WITH JUDICIAL SKEPTICISM AND EMERGING VALUES-PIECEMEAL
JUDICIAL RESPONSE: 1965-1970 - A.
Multiple Offenses: Untying the Statutory Knots
- 1.
Federal Developments
- 2.
State Developments
- B.
Procedural Objections to Enforcement Practices
- 1.
Search and Seizure
- 2.
Entrapment
- 3.
Other Prosecution Practices
- C.
Sufficiency of Evidence
- D.
Sanction
X.
THE HEART OF THE MATTER-SUBSTANTIVE CONSTITUTIONAL CHALLENGES TO THE MARIJUANA
LAWS: 1965-1970 - A.
The Burden of Justification: The Importance of Having a Presumption on Your Side
- 1. Due Process
and Equal Protection: Rationality of the Classification..
- 2.
Cruel and Unusual Punishment: Rationality of the Sanction
- B.
Should the Burden Be Shifted?-Marijuana and Fundamental Rights
- 1.
The Robinson-Powell Argument
- 2.
Free Exercise of Religion
- 3.
Right of Privacy
- 4.
The Ninth Amendment-The Forgotten Kitchen Sink
- C.
Another Constitutional Perspective: The Police Power
XI.
LEGISLATIVE RECONSIDERATION: 1965-1970 - A.
Virginia Legislative "Reform": Publicity Begets Tokenism
- B.
The Dodd Bill: Half a Loaf
- C.
Postscript: The Dodd Bill Becomes the Comprehensive Drug Abuse Prevention and
Control Act of 1970
XII.
CONCLUSION: BEFORE THE FALL - A.
Public Policy Formation Process
- B.
Twentieth Century Values and the Marijuana Laws
- 1.
The Premise
- 2.
Statutory Recommendations
APPENDIX
A. STATUTORY TABLES APPENDIX
B. BIBLIOGRAPHY
Please
note that all of Chapters 1 thru 9 are available on www.druglibrary.org
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