Prelude To Federal Marihuana Control, 1935-1937

2011

During its first few years, the bureau, as judged from its annual reports, minimized the marihuana problem and felt that control should be vested in the state governments.24 The report published in 1932 commented,

This abuse of the drug is noted among the Latin-American or Spanish-speaking population. The sale of cannabis cigarettes occurs to a considerable degree in States along the Mexican border and in cities of the Southwest and West, as well as in New York City, and, in fact, wherever there are settlements of Latin Americans.

A great deal of public interest has been aroused by newspaper articles appearing from time to time on the evils of the abuse of marijuana or Indian hemp, and more attention has been focused upon specific cases reported of the abuse of the drug than would otherwise have been the case. This publicity tends to magnify the extent of the evil and lends color to an inference that there is an alarming spread of the improper use of the drug, whereas the actual increase in such use may not have been inordinately large.

In 1932 the Federal Bureau of Narcotics strongly endorsed the new Uniform State Narcotic Act and repeatedly stressed that the problem could be brought under control if all the states adopted it.25 As late as January 1937, Commissioner Anslinger was quoted as advising that the distribution of marihuana was an intrastate problem and that hope for its ultimate control lay in adoption of uniform narcotic laws.26 The annual reports spent an increasing amount of space on marihuana-associated crime after 1935, but the bureau continued to recommend the uniform act. There seem to be several reasons why the FBN delayed advocating a federal marihuana law.

Commissioner Anslinger recalled that marihuana caused few problems except in the southwestern and western states, and there the growing alarm was directed at the Mexicans who the “sheriffs and local police departments claimed got loaded on the stuff and caused a lot of trouble, stabbing, assaults, and so on.” These states were “the only ones then affected … we didn’t see it here in the East at all at that time.” To Anslinger, the danger of marihuana did not compare with that of heroin, and after the Act’s passage in 1937 he warned his agents to keep their eyes on heroin; if an agent was making arrests for marihuana possession, he was told to get back to “the hard stuff.”

In addition to questioning whether a federal law would significantly ameliorate the so-called marihuana problem, the commissioner also doubted the possibility of a law that would be constitutional. But enactment in 1934 of a “transfer tax” on certain firearms gave the Treasury’s General Counsel Herman Oliphant a constitutional solution. In an effort to reduce the use of machine guns by gangsters, Congress decreed that such firearms could be transferred only upon payment of a transfer tax (National Firearms Act). As peculiar as this tax may seem, it was held constitutional by the Supreme Court in March 1937.27 Oliphant, according to Anslinger, decided that this model could be applied to the transfer of marihuana, and within a month of the Supreme Court’s decision the Treasury Department appeared before Congress requesting enactment of a marihuana transfer tax. When the idea of such a tax was first broached to Anslinger by the General Counsel, he thought the notion was “ridiculous.” Even after the decision was made to recommend it to Congress Anslinger did not believe it would pass.

The Bureau had avoided control of barbiturates and amphetamines, which would be very difficult to implement. Such an attitude was consistent with Anslinger’s disinclination to take on marihuana, which grew, as the Commissioner ruefully pointed out in 1936, “like dandelions,” and had a few legitimate uses.28 It is significant that when marihuana was finally controlled by the federal government, it was outlawed for almost every use except in birdseed, where it was permitted only if first sterilized. The regulations for its use by physicians were so complicated that they are not likely to have prescribed it since 1937.

The pressure for a federal antimarihuana law was political, Anslinger states, from local police forces in affected states to the governors; from the governors to Secretary of the Treasury Henry Morgenthau, Jr.; from Morgenthau to the Treasury’s General Counsel; and finally to the Commissioner of Narcotics. Apparently the decision to seek a federal law was made in 1935, since by January 1936 Anslinger was holding conferences to that end. The bureau’s search for grounds on which to base a federal law was almost unsuccessful. It first claimed that only the treaty-making power of the federal government could sustain an antimarihuana statute. Such a treaty was then attempted, but with an appeal to other nations which had almost no chance of success. The bureau had performed faithfully the task it had been given and the effort was about to fall short, when, Anslinger claims, the Treasury’s General Counsel ingeniously applied the transfer tax.

The pressure on the Treasury could well have been sufficient to induce the ingenuity, as the following letter of 1936 from the editor of the Alamosa, Colorado, Daily Courier suggests:

Is there any assistance your Bureau can give us in handling this drug? Can you suggest campaigns? Can you enlarge your Department to deal with marijuana? Can you do anything to help us?

I wish I could show you what a small marijuana cigarette can do to one of our degenerate Spanish-speaking residents. That’s why our problem is so great: the greatest percentage of our population is composed of Spanish-speaking persons, most of whom are low mentally, because of social and racial conditions.

While marijuana has figured in the greatest number of crimes in the past few years, officials fear it, not for what it has done, but for what it is capable of doing. They want to check it before an outbreak does occur.

Through representatives of civic leaders and law officers of the San Luis Valley, I have been asked to write to you for help.29