Law in History of Drugs in America

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Fighting Drugs: Regulation vs. Prohibition

Efforts to fight drug use in America date back just as far as the drug use itself—which is to say, to the earliest days of European settlement in the country. Every single drug ever to achieve widespread use in America—from caffeine to crack—has been subjected, at one time or another, to attempts at serious government restriction. Various forms of restriction have been applied to different drugs at different times, but by taking the long view, we can see that all American anti-drug efforts have fallen into one of two broad approaches to dealing with drug problems in society: regulation and prohibition.

Regulation accepts that citizens will use a given drug, but imposes extra taxes and certain restrictions—like age limits, health warnings, or special permits for sellers—on its use. The idea is to reduce use of the drug by increasing its cost and restricting its availability, without criminalizing its use.

Prohibition, in contrast, simply makes it illegal to sell or use a particular drug. The threat of criminal punishment is intended to deter citizens from using the drug at all.

Both approaches have their advantages and disadvantages as public policy. Regulation allows for more nuanced policy and generates revenue for the government through collection of "sin taxes," but sends the message that the government officially condones citizens' use of the drug being regulated. 

Prohibition, on the other hand, sends a clear message that use of the prohibited drug isn't acceptable, but creates expensive and socially destructive problems of enforcement when some people inevitably use the drug anyways. Through 400 years of drug use in America, neither regulation nor prohibition has solved the drug problem, but both approaches have, at times, been effective in mitigating the negative impacts of drugs on American societies. For all their faults, the two approaches remain the best we've got.

Drug Enforcement Hierarchies

So, which drugs should be regulated, and which prohibited? Americans today are familiar with a certain hierarchy of drug regulation and enforcement:

• Caffeine is neither regulated nor prohibited: its use is free to all.
• Alcohol and tobacco are heavily regulated: both are legal for adults, but subject to high "sin taxes" and certain restrictions, like age limits, advertising bans, health warnings, and special licenses for distribution, to discourage their abuse.
• Certain drugs (opium, cocaine, steroids, amphetamines, Ritalin, OxyContin, Vicodin, etc.) are regulated for medical use and prohibited for recreational use. They're legal only when prescribed by a doctor to treat a medical condition, while off-prescription recreational use is banned.
• Similarly, one of the big ones, marijuana is recreationally legal in some states, only medically legal in other states, and totally illegal in a bunch of states. Across the board, though, it's federally illegal.
• And other drugs (heroin, ecstasy, LSD, psychedelic mushrooms, etc.) are prohibited entirely. They're always illegal, and their use can result in criminal consequences.

It's easy today to imagine that these hierarchies, which have been enshrined in federal law since the passage of the Controlled Substances Act of 1970, are natural or timeless, rooted in the innate qualities of the various drugs. In other words, heroin—to take one example—simply is, by its very nature, an illegal drug, while caffeine isn't.

But our history suggests otherwise. A century ago, heroin was sold, over the counter and without a prescription, as a cough suppressant. In 1911, the federal government tried, but failed, to shut down Coca-Cola for illegally adding caffeine to its famous secret formula. In the 1920s, marijuana was perfectly legal in most states, but alcohol was banned everywhere in America. After the Civil War, thousands of Americans—including at least two presidents, William McKinley and Ulysses S. Grant—regularly drank Vin Mariani, a popular and entirely legal brand of red wine infused with pure cocaine. Even before the founding of the United States as an independent nation, the Massachusetts General Court attempted to prohibit tobacco in 1632 and England's King Charles II tried to outlaw coffee houses in 1675.

In short, most of today's banned drugs have been, in the past, perfectly legal, and most of today's legal drugs have been, in the past, banned. Whether any particular drug should be accepted, regulated, or prohibited is a political, cultural, and historical choice for society to make, not an inherent aspect of the drug's chemistry.

A Very Short History of Drug Regulation

The first drug to be regulated in American history was tobacco. Neither tobacco nor the habit of smoking any drug into the lungs had ever been encountered in Europe before the voyages of Columbus. Both the drug and the method of taking it were native to the Western Hemisphere. Europeans had to learn how to smoke tobacco from Native Americans, and they soon exported the custom, and the drug, back to Europe. 

And by the late-16th century, Europe had become a continent of nicotine addicts. The rapid spread of smoking through European society appalled many spiritual and political leaders, who regarded the habit as the evil custom of uncivilized heathens. Smoking, in other words, was the Devil's work.

European governments at the time had no power to ban tobacco, but in 1604—three years before the first English colony in America took root at Jamestown—England's King James I wrote a pamphlet, memorably named A Counterblaste to Tobacco, urging his subjects not to smoke the American weed. 

"And now Good Countrymen," wrote the king, "let us (I pray you) consider, what honour or policy can move us to imitate the barbarous and beastly manners of the wild, Godless and slavish Indians, especially in so vile and stinking a custom?"²⁰

In case his efforts at moral suasion fell on deaf ears, King James concurrently increased the tax on tobacco by 4,000%.²¹ Interestingly, King James' approach to regulating tobacco—combining anti-tobacco advocacy with high taxation—was essentially the same as that taken by the U.S. government since the late 1960s. The recent American effort has been much more successful, however—the fact that King James was a widely despised monarch can't have helped his cause.

The precedent of the Counterblaste notwithstanding, the American Revolution and subsequent Constitution created a federal government with quite limited regulatory powers, so it wasn't until the early-20th century that widespread drug regulation began to take hold in the United States. The Pure Food and Drug Act of 1906 charged the federal government with ensuring that adulterated foods and poisonous drugs would not reach consumers. Dr. Harvey Wiley, the federal agent who led efforts to enforce the act, initially sought to use his powers to target caffeine. 

"Coffee drunkenness," he said, "is a commoner failing than the whiskey habit. [...] This country is full of tea and coffee drunkards. The most common drug in this country is caffeine."²² 

As part of his anti-caffeine campaign, Wiley sued Coca-Cola in 1911, arguing that the drink-maker's artificial addition of the stimulant to its secret formula violated the Pure Food and Drug Act's ban on adulterated substances. The judge, however, sided with Coke, and the federal government has not attempted to regulate caffeine since.

Other drugs, however, have fallen under the purview of a more and more stringent federal regulatory apparatus. The Harrison Narcotics Tax Act of 1914 put the federal government in the business of regulating drugs like heroin, opium, morphine, and cocaine, which previously had been sold over-the-counter without restriction. Under the Harrison Act, the drugs could only be distributed legally via the prescription of a licensed medical doctor. Many other drugs have been similarly regulated in the decades since; the government now maintains an elaborate schedule of regulated drugs under the terms of the Controlled Substances Act of 1970.

It wasn't until after World War II that scientists conclusively proved that smoking causes lung cancer and other deadly health problems. The growing awareness of the risks of smoking in the 1960s led to new calls to regulate the drug. In 1966, the government began requiring cigarette packages to carry the now-familiar Surgeon General's warning, "Warning: The Surgeon General Has Determined That Smoking Is Dangerous to Your Health." Heavy lobbying from the tobacco industry convinced Congress not to require a clearer, more forceful warning, something like "Smoking Kills," which is today the standard warning label in Great Britain.

Five years later, cigarette advertisements were banned from American television. Up to that time, cigarettes had appeared in more TV ads than any other product. The regulatory approach toward fighting tobacco use in America over the past four decades has been broadly successful; in 1964, when the Surgeon General began keeping statistics, 44% of Americans smoked. Today, the smoking rate hovers around 15% and is falling.

A Very Short History of Drug Prohibition

Like regulatory approaches, attempts to impose drug prohibition also date back to the colonial period. 

In 1632, the Massachusetts General Court issued a ban on smoking in public places. Even in that tightly controlled Puritan society, however, the ban proved largely ineffectual. Many New Englanders continued to smoke, and efforts to enforce tobacco prohibition were soon dropped. A few decades later, another prohibitionist attempt aimed at users of another relatively new drug on the Anglo-American scene—coffee—failed even more miserably. England's King Charles II, worried that coffeehouses had become "the great resort of idle and disaffected persons," issued A Proclamation for the Suppression of Coffee Houses, which ordered the closure of all cafés in the British Empire. 

It took less than a week of clamoring protests from patrons of London's increasingly popular café scene to force Charles to change his mind and rescind the proclamation.²³ Coffee (and coffeehouses) remained legal in the English-speaking world.

The failure of these early attempts at drug prohibition revealed the difficulty of successfully implementing drug bans that were opposed by the majority of the population. That difficulty was demonstrated most powerfully two centuries later by America's most ambitious prohibitionist experiment—Prohibition (with a capital P) of alcohol, which lasted from 1920 to 1933.

Churches, women's groups, and temperance organizations had been pushing for an alcohol ban in America since the hard-drinking 1830s. They finally prevailed in 1919, when the 18th Amendment to the U.S. Constitution was ratified, banning all "manufacture, sale, or transportation of intoxicating liquors" in America after 1920. Prohibition may have been the most ambitious experiment in social engineering in American history, and it failed miserably. 

Millions of Americans continued to drink illegally. Perhaps half a million speakeasies—a.k.a. illegal bars—opened throughout the nation, doing a brisk business in bootleg liquor. The huge black market in alcohol created by Prohibition led to an explosion in violence and organized crime, as infamous gangsters like Al Capone and Bugs Moran fought to control the billions of dollars in profits to be made by trafficking in illegal alcohol. By 1929, the profits of the bootleg liquor industry—$3 billion that year—were larger than the entire federal budget. Uncountable ordinary Americans, people with no aspirations to rival Al Capone, became criminals by brewing up their own moonshine booze in bathtubs and backyard stills.

Prohibition likely did reduce total alcohol consumption in America to some degree—although the statistics are a mess due to the immeasurable scale of the black market. But most Americans came to believe that the negative repercussions of Prohibition far outweighed its benefits. Franklin D. Roosevelt won the presidency in 1932, in part, behind his promise to end Prohibition; repeal of the ban on alcohol became one of the first measures of the New Deal to pass Congress. 

There, Prohibition met an ignominious end. As the last few Prohibitionist senators sought to filibuster repeal, angry members of the House of Representatives stormed the Senate, chanting "Vote! Vote! We want beer!" until the holdouts finally relented. Prohibition officially ended with the passage of the 21st Amendment in 1933.

Prohibition (with a capital P) may have been gone, but prohibition (with a small p) has remained the cornerstone of American policy toward illicit drug use ever since. President Richard Nixon coined the phrase, "War on Drugs," in 1971, but the federal government's drug war truly began 40 years earlier. In 1930, the Hoover Administration created the Federal Bureau of Narcotics to lead anti-drug policing at the federal level. Under the zealous leadership of bureau director Harry Anslinger, who served until 1962, the agency vigorously prosecuted drug crimes. During the 1930s, at Anslinger's urging, Congress enacted prohibition against marijuana for the first time and tightened earlier laws prohibiting non-medical use of narcotics.

A perceived explosion of drug use among countercultural young people during the 1960s led to an intensification of the federal government's aggressive prohibitionist approach toward drugs. In 1971, President Nixon declared drugs to be "public enemy number one in the United States. [...] If we cannot destroy the drug menace, then it will destroy us."²⁴ Nixon announced he would launch a "War on Drugs" to fight that menace. Subsequent presidents—especially Ronald Reagan, who joined his wife Nancy in heavily promoting the "Just Say No" movement—have carried on Nixon's fight. 

Half a century after the War on Drugs officially began, we don't appear to be close to winning.

Like Prohibition, the War on Drugs has achieved a real measure of success in reducing overall drug use. Proportionally fewer Americans smoke crack today than they did in the 1970s, for example. And there's no ambiguity in the federal government's strong message to its citizens: "Just say no" to drugs, or face the consequences.

But, like Prohibition, the War on Drugs has had many socially undesirable side-effects. The most obvious costs are, well, costs. Total state and federal government spending on the War on Drugs—encompassing education, treatment, interdiction, enforcement, prosecution, and incarceration—likely exceed $50 billion a year. That's money that could be spent on other programs or returned to taxpayers through tax cuts. Less obvious costs include the heavy social consequences of crime and punishment. Like Prohibition, the War on Drugs created a huge black market in drugs, fueling runaway growth in both violent criminal drug-trafficking activity and in drug-focused law enforcement operations. As a consequence, many American cities have been menaced by violent gangs that are sustained by drug profits. 

Meanwhile, millions of people have been ensnared by the criminal justice system for drug-related crimes. Today, more than 2.3 million people are imprisoned in America. That's seven times as many as in 1970, just before the War on Drugs officially began. In fact, the number of nonviolent drug offenders imprisoned today is higher than the total prison population—for all crimes—in 1970. Largely as a result of the War on Drugs, the United States now has a higher proportion of its population locked away behind bars than any other society in the history of the world. And the social costs for heavily impacted American communities have been immense.