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America's Insane 40-Year Marijuana Prohibition Is Like a Tragic Play in Three Acts

Our attitude toward medical marijuana has unfolded like a three-act tragedy.

Photo Credit: Shutterstock.com/gonin


Act I: The People Press Their Case

In 1937, Congress passed the Marijuana Tax Act, which made the recreational use of marijuana illegal. But it affirmed the right of physicians and pharmacists to prescribe and dispense it. The American Medical Association opposed the Act not because it allowed medical marijuana but because it required doctors to register with federal authorities and pay an annual tax or license fee that the AMA felt would unduly inhibit doctors' ability to offer their patients this medicine. The AMA was right. Few doctors were willing any longer to prescribe marijuana. In 1942 cannabis was removed from the United States Pharmacopeia of existing medicines.

In 1961, 74 nations signed the UN Single Convention on Narcotic Drugs. Again the treaty criminalized the recreational use of marijuana but allowed it for medical purposes. Indeed Article 49 specifically advises, "The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible...." 

Physicians retained the ability to legally prescribe marijuana until the Controlled Substance Act of 1970 made marijuana a Schedule I drug, equivalent to heroin and, according to the Congress, with no medical uses. In the debate leading up to its passage the Assistant Secretary for Health and Scientific Affairs, responding to a congressional request for guidance noted there was “still a considerable void in our knowledge of the plant and effects of the active drug contained in it” and recommended it be retained within Schedule I temporarily while “certain studies now underway to resolve the issue.”

Those studies were undertaken by the newly created National Commission on Marijuana and Drug Abuse Commission, chaired by Pennsylvania governor Raymond P. Shafer, who had earned a reputation as a tough-on-crime U.S. attorney. 

President Nixon had already made up his mind. In May 1971 he told H.R. Haldeman, “I want a goddamn strong statement about marijuana. Can I get that out of this sonofa-bitching, uh, domestic council? I mean one on marijuana that just tears the ass out of them.” And Nixon told Shafer directly, "You're enough of a pro to know that for you to come out with something that would run counter to what the Congress feels and what the country feels, and what we're planning to do, would make your commission just look bad as hell."

In June 1971, to pre-empt the Commission’s report, Nixon declared a war on drugs. "America's public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.” Over the next year marijuana arrests jumped by over 100,000.

In March 1972, the Shafer Commission’s submitted its report to Congress. Revealingly titled Marijuana, A Signal of Misunderstanding the Commission concluded, "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’.”

The report’s findings led the National Organization for the Reform of Marijuana Laws (NORML) to submit a petition to the Bureau of Narcotics and Dangerous Drugs (BNDD) that May requesting doctors be allowed to prescribe marijuana. The BNDD—which became the Drug Enforcement Administration (DEA) in 1973—refused to accept the petition for filing

In 1974 a federal Appeals Court condemned BNDD’s a priori refusal as “not the kind of agency action that promoted the kind of interchange and refinement of views that is the lifeblood of a sound administrative process." Fourteen years, three DEA rejections and three court decisions later NORML’s petition was finally evaluated in detail. After examining thousands of pages of testimony and studies, administrative judge Francis Young concluded, "Marijuana is the safest therapeutically active substance known to man…The evidence clearly shows that marijuana is capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. . .it would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance. The administrative law judge recommends that the (DEA) Adminstrator conclude that the marijuana plant considered as a whole has a currently accepted medical use in the United States.”