Centennial of an Unnatural Disaster
1906, an innocuous law started us down the slope that led to the War on
"Was the government to prescribe to us our medicine and
diet, our bodies would be in such keeping as our souls are now [i.e., under the
established church]. Thus in France the emetic was once forbidden as a medicine,
and the potatoe as an article of food."
Notes on the State of Virginia, Query
This year is a noteworthy landmark in U.S. history: the centennial of the
first federal drug control laws. Americans have long forgotten that for the first
half of the nation's history there were no illegal drugs. In my own grandparents'
time, Americans could obtain any drug at the pharmacy including so-called
narcotics such as opium, morphine, cocaine, and cannabis without criminal
sanction. This began to change a hundred years ago, just after the great San
Francisco earthquake, when Congress effected a seismic change in U.S. drug policy
by enacting the first federal laws aimed at restricting sales of dangerous drugs.
The most celebrated of these was the Pure Food and Drugs Act, enacted on June 30,
1906, which outlawed the manufacture and sale of adulterated, misbranded,
poisonous, or "deleterious" foods and drugs. While generally well intended, the
law incidentally gave unprecedented power to federal bureaucrats to decide what
kinds of drugs consumers could purchase, a power that would soon be abused to
prohibit consumer access to otherwise harmless and even beneficial
Less well known, but more drastic in its
implications, was the District of Columbia Pharmacy and Poisons Act, aimed at
prohibiting the sale of habit-forming drugs to drug fiends. Enacted a few weeks
earlier, on May 7, 1906, the act prohibited the sale of habit-forming drugs such
as opium, morphine, cocaine, and chloral hydrate* without a doctor's prescription. Although the act
applied only to the District, it was conceived as a model bill for the states,
since Congress was still widely held to lack constitutional power to regulate
drug sales outside the District (a doctrine long since abandoned by the courts).
The act was the first in a succession of antinarcotics laws that would ultimately
culminate in the first comprehensive national narcotics prohibition law, the
Harrison Act of 1914, which would be passed in the guise of a tax bill so as to
pass constitutional muster.
|Americans have long
forgotten that for the first half of the nation's history, there were no illegal
The 1906 legislation marked a watershed in U.S. drug policy. Until the 20th
century, the national drug market was governed by a laissez-faire policy. The
prevailing philosophy was that buyers and sellers should be free to engage in
trade, unfettered by government regulations. The basis for nonintervention was
set forth by the great antiprohibitionist and classical liberal economist John
Stuart Mill in his famous treatise, "On Liberty": "That the only purpose for
which power can be rightfully exercised over any member of a civilized community,
against his will, is to prevent harm to others."2 From
this, Mill argued against limitations on free trade in alcohol and opium as
unjustified infringements on the rights of the buyer, though not the
seller.3 By the late 19th century, a number of states
and cities had begun to reject this philosophy by experimenting with local
prohibition laws regarding smoking opium and cocaine as well as alcohol.
Nonetheless, it was still widely held that this was a matter for local, not
federal, government. These restraints were cast off by the 1906 legislation,
which gave the federal government a dominant role in determining which drugs
Americans could consume.
The intent of the Pure Food and Drugs Act, to
prevent the sale of adulterated, misbranded, and often fraudulent products, was
basically sound. It passed on a wave of popular revulsion against widespread
abuses in the patent medicine industry, stirred up by the journalist Samuel
Hopkins Adams in his exposé "The Great American Fraud" in Colliers
One of the act's central provisions
was to require that medicines bear warning labels if they contained habit-forming
drugs such as alcohol, opiates, cocaine, cannabis, or chloral hydrate (plus the
now-forgotten alpha- and beta-eucaine, chloroform, and acetanilide). It further
required that the quantities of these drugs be specified on the label. In
essence, this was a "truth in labeling" policy, which, being informative, not
prohibitive, was altogether consistent with the principles of J.S. Mill.
Contemporary observers credited the act with a substantial decline in the use of
patent medicines with dangerous intoxicants.5
However, the act had a dark side as well, as it put the power to make decisions
about what drugs could be sold into the hands of a new federal regulatory agency
the Department of Agriculture's Bureau of Chemistry, the predecessor of
today's FDA. In specific, the Bureau was empowered to remove products that it
found to be "adulterated" with substances "deleterious" to human health, and to
ban the importation of any drug deemed "dangerous to the health of the people of
the United States." The definition of such terms inevitably involved subjective
value judgments, which under the act would be determined by federal bureaucrats
instead of individual consumers and producers in the market. The dangers of this
arrangement were aptly pointed out by Sen. Nelson Aldrich (grandfather of Gov.
Nelson Aldrich Rockefeller, the eponymous author of New York's punitive drug
law), who warned that "the liberty of all the people of the United States" would
be undermined by "chemists of the Agriculture Department" with an interest in
regulation.6 No doubt Sen. Aldrich's remarks were aimed
at the Bureau's crusading director, Harvey Washington Wiley, who had championed
the new law. An aggressive proponent of regulation, Wiley was a forerunner of
today's consumer protectionists, highly averse to chemical additives, inclined to
exaggerating scientific evidence about their dangers, and prohibitionist with
regards to many substances, including alcohol. Taking an aggressive
interpretation of the act's provisions regarding "adulteration," Wiley sought to
have several popular ingredients banned from the food supply, among them
saccharin, sodium benzoate, and caffeine. His efforts wound up discrediting him with President Theodore Roosevelt, who remarked, "Anybody who says saccharin is
injurious to health is an idiot."7
|Although the Pure Food
and Drugs Act applied only to D.C., it was conceived as a model bill for the
states, since Congress was still widely held to lack constitutional power to
regulate drug sales outside the Districe. |
However, Wiley was more successful with cocaine, which enjoyed popularity as
an ingredient in several tonics and beverages but had recently come into
disrepute. Cocaine is derived from the coca leaf, used since time immemorial by
South American Indians with no evident ill effects. It was first popularized in
the form of relatively mild tonics such as the famous Vin Mariani endorsed
by Thomas Edison, Pope Leo XIII, and President McKinley and the original
Coca-Cola. Like the coca tea enjoyed in the Andes, these beverages contained low
levels of cocaine, and produced no evident ill effects.
began to arise with the introduction of more potent cocaine in pure, powdered
form following the announcement of its remarkable pharmaceutical properties by
Carl Koller in 1884. A brief flurry of medical enthusiasm was soon dampened by
disturbing reports of addiction, as previously normal patients became transformed
into crazed "cocaine fiends." In the South, cocaine was blamed for inciting
violent behavior in blacks. In the nation's capital, cocaine was seen as "one of
the growing evils of the city among the lower classes," and became a motivating
factor in the District Commissioners' push for the D.C. Pharmacy and Poisons
Act.8 By 1906, nearly half the states had laws
prohibiting the sale of cocaine except on a doctor's prescription
essentially the model followed in the Harrison Act.
Although the Pure Food
and Drugs Act was not prima facie a prohibition law, its provisions
regarding food adulteration gave the Bureau leverage to intervene in the
marketplace. In specific, the act defined adulterants to include any "deleterious
ingredient" that might render the article "injurious to health."
on this provision, Wiley declared cocaine to be an "adulterant" and sued to have
it removed from beverages. At no point did Wiley ever show that the low levels of
cocaine in coca beverages were actually injurious to health. Indeed, coca
beverages and leaf remain legal to this day in the Andean countries, where they
are thought to help stave off fatigue, hunger, and diabetes. Nevertheless, Wiley
succeeded in pressuring manufacturers to withdraw all cocaine from their
Ironically, that left only the more potent, addictive form of
cocaine available on the market as a pharmaceutical drug. Although cocaine was
ultimately restricted to prescription-only use under the Harrison Act, nothing
could stop it from leaking out into the nonmedical black market, eventually
metastasizing into other countries and becoming one of the world's largest
criminal enterprises. Wiley's ban on coca would eventually be incorporated into
international law by the Single Convention Treaty (1961), at the insistence of
U.S. drug bureaucrats. While criminalization of the coca trade has effectively
"protected" American consumers from harmless coca beverages, it has left millions
more exposed to illicit, high-potency cocaine. Meanwhile, it has inflamed a
violent war in Latin America that has cost U.S. taxpayers billions of dollars,
claimed thousands of casualties, and injected corruption, violence, gangsterism,
and criminality into what was a peaceful and lawful business a century
As time passed, the Pure Food and Drugs Act would be vastly expanded
to encompass virtually every aspect of pharmaceutical choice. The FDA was given
the power to decide what new drugs could be introduced by the 1938 Food, Drug and
Cosmetic Act, which established the modern drug approval system. In time, the
definition of new drugs would be stretched to include even familiar old ones like
cannabis indica, known to medicine for centuries but presently banned as a
presumably unsafe, unproven "new" product.
One consequence of the FDCA was
to empower the FDA to enact a new labeling regulation making it illegal for
prescription drugs to be sold over the counter, effectively repealing the right
to self-medication. As a result, Americans are now substantially less free than
their Mexican neighbors to purchase needed medicine.
|The "truth in labeling"
policy, being informative, not prohibitive, was altogether consistent with the
principles of J.S. Mill. |
Drug approval requirements were stiffened by the 1962 Amendments, which
required that drugs be proven "effective" as well as safe. This greatly increased
the time and cost of new drug development, depriving U.S. consumers of beneficial
new medications that had already been approved in other countries, a phenomenon
that became known as "drug lag." The FDA was also given sweeping powers to
regulate unapproved, investigational drugs. By law, no such drug can be given to
any human subject without prior FDA approval. Pursuant to these powers, the FDA
has suppressed many drug studies entirely; patients with incurable diseases have
been denied access to new, experimental treatments. Some have sought treatment
abroad; others have broken the law to smuggle drugs back to the land of the free.
Entering the 21st century, Americans are no more free to use unapproved
medication than the colonists of Jefferson's day were to practice unestablished
If the Pure Food and Drugs Act was the slippery slope to
prohibition, the D.C. Pharmacy and Poisons Act was the step off the cliff. The
DCPPA was explicitly intended to curb the "drug-habit evil" in the District by
prohibiting the sale of narcotics without a prescription a policy adopted
by other antinarcotics laws of the era, including the Harrison Act. The DCPPA
explicitly covered sales of opium, morphine, cocaine, and chloral hydrate. The
act also prohibited physicians from prescribing narcotics to addicts, except for
purposes of treating illness or curing addiction. This officially marked the
abandonment of the 19th-century libertarian principles of John Stuart Mill and
the embrace of 20th-century prohibitionism.
The DCPPA was the work of two
rising forces in American politics: the waxing temperance movement, which would
eventually succeed in imposing alcohol prohibition, and the turn-of-the-century
progressive movement, which championed a more activist role for federal
government in social regulation. The progressives were led by professional groups
and incipient drug bureaucrats, with strong support from President Theodore
* * *
The moral groundwork for drug prohibition was laid
by temperance groups such as the Women's Christian Temperance Union, which had
been agitating against the use of intoxicants for a generation. While alcohol was
far and away its leading concern, the WCTU also took an interest in narcotics,
sponsoring an international petition against opium traffic and successfully
lobbying for antinarcotics and antialcohol education in the schools.
Internationally, British opium traffic in China represented the Evil Empire for
the antinarcotics crusade. As a result of its defeat in the Opium Wars, China had
been forced to open its ports to free trade in opium from British-ruled India. In
Britain, religious and moral reformers, predominantly from the Liberal party,
formed the Society for Suppression of the Opium Trade in 1874.
generation, the society waged a futile fight against British imperial interests,
which welcomed the revenues from the opium trade. The battle was joined by a
network of Protestant missionaries in China and Asia, many of them American, who
communicated through numerous publications and organizations. Among the most
prominent were the Anti-Opium League, whose president, the Rev. Hampden Coit Du
Bose, would be instrumental in drafting the Chinese Empress Dowager's 1906 edict
prohibiting opium,9 and the International Reform
Bureau, founded by the Rev. Wilbur Crafts, which successfully lobbied Congress to
pass the Gillett-Lodge Act (1902) prohibiting sales of firearms, liquor, and
opium to aboriginal natives of the Pacific Islands.
eventually got him canned by Theodore Roosevelt, who said, "Anyone who says
saccharin is injurious to health is an idiot."|
In an era when opium was widely accepted as the most effective household
analgesic (aspirin not being introduced until 1899, one year after heroin), the
Chinese habit of smoking opium was looked down on as an alien and degrading vice.
Chinese smoking opium was readily differentiable from household medical opium,
since it was prepared in a different manner. It became the target of the very
first local antidrug law in the United States, San Francisco's 1875 Opium Den
Ordinance, which made it a misdemeanor to keep or frequent a den for the purpose
of opium smoking.
The San Francisco ordinance was passed at a time of
intense anti-Chinese hysteria, and was quickly copied in other towns and states
with Chinese settlements. By 1900, 22 states and territories had enacted statutes
banning opium dens.10 For the most part, these were not
strictly speaking prohibition laws, since they did not actually ban the sale or
use of opium, only the ownership of public premises for its consumption. The
notable exception was Nevada, which in 1877 became the first state to enact a
full-scale opium-control law, prohibiting its sale without a physician's
During the late 19th century, professional pharmacy and
medical groups began to propose additional measures to address the proliferation
of dangerous drugs. The period saw the development of newer, more potent agents
such as morphine, cocaine, chloral hydrate, and heroin, along with better
hypodermic syringes to deliver them. At the same time there grew a flourishing
trade in patent medicines containing secret, often toxic ingredients. In this
climate, poisonings, both accidental and malicious, became the leading drug
problem of the day. (The Washington Post online archive lists 6,342 articles
mentioning "poison" in the 30 years before 1907, versus 4,184 for all narcotics
combined; from 1987 to the present, "poison" mentions total 6,725, versus 15,913
for cocaine alone.)
In response, states began to enact "poison
laws" requiring warning labels and other precautions for listed poisons.
Pharmacists, represented by influential lobbying organizations, promoted passage
of these laws, which also conveniently restricted sales to licensed
Another important feature of the poison laws was the
requirement that sales be recorded in a "poison register" listing the name of the
purchaser, the name and quantity of the poison, and the purpose for which it was
being used. The register was subject to inspection by the authorities. In
addition to lethal agents like strychnine and arsenic, the listed poisons
typically included narcotics such as opium, morphine, chloral hydrate, and
cocaine, which were poisonous in overdose. In principle, the registration
requirement was intended to discourage criminal misuse, not limit consumer
choice. Hence poison laws were endorsed by John Stuart Mill himself as an
appropriate precaution against accidents and criminal
In practice, the poison laws had an
incidental restraining effect on narcotics sales. This was partly due to the
warning labels, which discouraged careless use. Yet even more significant may
have been the "purpose of use" recorded in the register.
In general, the
sale of drugs for nonmedical ("recreational") purposes was considered unethical
by pharmacists, many of whom refused to sell cocaine or morphine to "fiends"
lacking a doctor's prescription. In practice, fiends had to seek out the less
scrupulous druggists and peddlers to supply their habits, creating what was
described as a "shadow market" for recreational
drugs.12 In the District, the shadow market for cocaine
was supplied by just four or five licensed
More explicitly prohibitionist
measures began to be proposed in the 1880s, when the modern phenomenon of the
drug habit began to manifest itself. As medical science advanced, doctors became
increasingly troubled by evidence of iatrogenic addiction resulting from
overprescription of narcotic drugs. Just as troubling was the emergence of a new
class of street addicts given to drug use without medical justification a
type characterized by ne'er do wells, criminals, gamblers, prostitutes, and other
undesirables, plus the occasional gentleman addict.
|The war on drugs began at
the local level. State pharmacy boards pioneered the tactics of today's drug
police state. |
In an era of growing temperance sentiment, such behavior faced increasing
social hostility. In the late 1880s, a handful of venturesome localities
attempted to tackle the problem by adopting pioneering narcotics prohibition laws
similar to the D.C. Pharmacy Act. Among them was San Francisco, where the county
medical society petitioned for narcotics legislation, deploring the "lamentable
fact that opium smoking is becoming fearfully prevalent among certain classes of
young men and women in our city."14 In 1889, the city
supervisors enacted a comprehensive ordinance forbidding the sale of morphine,
opium, and cocaine except by a doctor's prescription. Ironically, for a city that
would later become a Mecca for '60s drug culture, the ordinance also specifically
disallowed prescriptions for the purpose of satisfying "curiosity or to
experience any of the sensations produced
The ordinance was naturally
attractive to physicians, since it gave them a monopoly on the dispensation of
narcotics. However, it was opposed by pharmacists, who objected, not
unreasonably, to the "undue hardship" it would pose to "the respectable portion
of the community" in order to prevent "disreputable and criminal elements" from
obtaining their drugs.16
With such opposition,
enforcement of the ordinance proved spotty, and within a few years it was
considered to be a dead letter. Comprehensive antinarcotics bills were also
passed in Oregon (1887) and Montana (1889), two other states with a sizable
Chinese opium-smoking minority, but these were the exceptions to the rule.
Towards the end of the century, some states began to enact laws specifically
against cocaine, beginning with Illinois and Colorado (1897). Still, at the
national level, federal policy remained imperturbably laissez-faire, caveat
As the new century dawned, most Americans could legally obtain any
drug with no more trouble than signing the poison register. Despite this, drug
abuse was hardly a raging problem. By 1900, the use of opium had crested and
begun to decline.17 Newspapers of the day gave far more
attention to alcohol and the growing temperance movement than to narcotics. As
for drug crime, that pervasive scourge of modern civilization, it was virtually
nonexistent in the absence of modern drug control laws (aside from the occasional
opium den bust).18 Despite their widespread
availability, narcotics were such a minor issue in turn-of-the-century America
that they rarely rate even a footnote in history texts.
prohibition, narcotics prohibition was not caused by any widespread public
pressure or political campaign. Rather, it was the work of government insiders,
led by progressive-era professional groups and anti-opium missionaries, with
crucial support from President Theodore Roosevelt. The push for national drug
legislation was consistent with the broader progressive agenda, which favored
aggressive federal government action for social and moral betterment.
While progressives were united in supporting food and drug purity laws, they were
divided on the moral question of alcohol prohibition. Many were drinkers
themselves and did not regard moderate alcohol use as intrinsically evil. Though
a fearless champion of progressivism, President Roosevelt was politically
cautious on prohibition, distrusting temperance extremists, preferring to leave
the matter to the states. Like many Americans, Roosevelt was familiar with social
drinking and comfortable with moderate, responsible use. Narcotics were another
matter, however; outside of the despised opium dens, social use of narcotics was
unknown, and no respectable Americans would admit to their use except for medical
purposes. Public opposition to narcotics controls was therefore nearly
nonexistent, clearing the way for the prohibitionists.
It was foreign
affairs that proved the crucial factor in winning Roosevelt's support for
narcotics prohibition. Fittingly, the scales were tipped by events in the
Philippines, which had been captured by the U.S. at Roosevelt's initiative when
he was assistant secretary of the Navy during the Spanish-American War.
|Cocaine was first
popularized in form of relatively mild tonics such as the famous Vin Mariani,
endorsed by Thomas Edison, Pope Leo XIII, and President McKinley.
In acquiring the Philippines, the U.S. also acquired an opium problem. The
islands' Chinese minority was given to the habit of smoking opium, as were
Chinese settlements throughout the world. For many years, this population had
been supplied through a state-licensed opium monopoly under the Spanish colonial
government. Four years after taking over the Philippines, the American colonial
government of William Howard Taft proposed reviving the monopoly, which had been
an important source of taxes to the Spanish administration.
met fierce resistance from local missionaries, led by Manila's Episcopal bishop,
Charles Brent, who protested sanctioning the opium evil. In May 1903, Brent
collaborated with fellow Christian prohibitionists from the International Reform
Bureau, headquartered in Washington, D.C., to deluge the White House with
telegrams against the opium licensing plan. Impressed by this showing of moral
outrage, Roosevelt ordered Taft to withdraw the plan, and a committee was
appointed for further study. The committee, under Bishop Brent's direction,
recommended a policy of "progressive prohibition," in which opium would initially
be limited to confirmed addicts for three years, then banned entirely. On March
3, 1905, Congress passed a bill directing the Philippine government to "prohibit
absolutely the importation or sale of opium" except for medical purposes by March
1, 1908. In this act, Congress first explicitly embraced a policy of narcotics
prohibition. Meanwhile, the pharmaceutical lobby had been brought around to the
concept of prescription-only sales. In 1903, the American Pharmaceutical
Association approved a model bill to ban nonmedical use of narcotics, including
opiates, cocaine, and chloral hydrate. A revised version of the bill was adopted
two years later by the National Wholesale Druggists Association, National
Association of Retail Druggists, and the Proprietary Association of
In 1904, the first draft of the D.C. Pharmacy and Poisons Act was
proposed to Congress. The bill encountered opposition in committee. Local
druggists were of divided opinion. Some objected that self-destruction could not
be stopped by law, and that mandatory prescriptions would pose an unfair burden
on the poor. Others thought the law fully justified: "They can't make the law too
stringent for me," one said. "It has been my rule since I went into business to
refuse to sell morphine, cocaine or any of these drugs without a
prescription."19 The bill died because of opposition
from patent medicine manufacturers, who objected that it would unduly restrict
low-potency medicines with small amounts of opium. When the bill returned the
next year, the patent medicine industry dropped its opposition, having
voluntarily lowered the potency of its products. The bill boasted support from
the American Pharmaceutical Association, the National College of Pharmacy, the
District Commissioners, and a conference of physicians and pharmacists.
There was no dispute about the basic intent or design of the bill. Advocates
pointed out the need to restrict the cocaine habit. The sponsor, Rep. Joseph
Babcock of Necedah, Wisc., invoked the ever-popular argumentum ad
infantes, explaining, "I have come to my house, day and night, mothers,
widows, and parents begging for some legislation that would prevent their
children being able to buy cocaine. The cocaine habit has grown in Washington
here in the last five years until it is a thousand times worse than the alcohol
habit."20 Rep. John Fitzgerald of Brooklyn expressed
qualms that the bill's fees might not cover its enforcement costs. Rep. Thetus
Sims of Tennessee pertly replied that if additional appropriations were required
to "stop the wholesale poisoning and the making of lunatics and maniacs in this
District," then so be it.21 The bill passed with no
discussion of whether its provisions might actually realize its goals, or whether
there might be possible adverse effects from prohibition.
|At no point did Wiley
ever show that the low levels of cocaine in beverages like Coca-Cola were
actually injurious to health. |
The press did not mention the bill's passage. However, just two months later
the Washington Post reported troubles enforcing the law:
has been a truism so trite as to be outlawed that prohibition never prohibits. .
. . The same rule applies for the cocaine fiend. . . . [The laws] are broken
continually in the city. In spite of the vigilance of the police, the dope fiends
who have the requisite money can obtain supplies of the drug. Victims of this
habit among whom are frequently the panderers to the vice are most
secretive and cunning. No subterfuge is too base for either buyer or seller, nor
is any trouble too great to take, provided it result in satisfaction to both
sides, one getting the money and the other the poison. . . . The immoral women of
the town, among whom the habit is strongly prevalent, are responsible for the
distribution of much of the poison in the city. They make trips to Baltimore and
Alexandria, and lay in a stock of poisons for themselves and their
Nonetheless, by this
time the nation was firmly committed to a policy of drug prohibition. Other
states quickly followed the District's example. By the time the Harrison Act was
passed, more than 30 states had already enacted comprehensive antinarcotics
Thus, the war on drugs began at the local level. State pharmacy
boards pioneered the tactics of today's drug police state. Pharmacy boards sent
out agents posing as addicts to try to wheedle drugs from unsuspecting
pharmacists, then busted them, publicizing arrests in the local press. Drug
agents swept down on Chinatowns, cleaning out the dens and burning their opium
and paraphernalia in public bonfires.
While arrests soared, the problem
persisted, leading authorities to seek further powers. Having first restricted
only sales, legislators proceeded to outlaw possession as well. From that point
on, America's drug users became a criminal class. Although it had initially been
proposed that drug addicts be sent to state hospitals to be cured, funds for
treatment languished, so addicts were sent to prison instead. As time progressed,
penalties became increasingly harsher. While early laws made sales a misdemeanor,
later laws would make mere possession a felony.
Under the Harrison Act,
effective in 1915, narcotics prohibition became federal law. This was done by
placing a tax on narcotics prescriptions, allowing the U.S. Treasury to regulate
and restrict their use. Before long, federal courts and prisons were flooded with
thousands of physicians, pharmacists, and addicts charged with illegal
prescription, sale, and possession of narcotics.23 As
the government cracked down on the pharmaceutical companies that had
traditionally supplied narcotics, the traffic was pushed into the hands of
illicit black-market suppliers, creating an enormous and lucrative new field of
criminal enterprise. The Harrison Act was eventually supplanted by more sweeping
legislation that extended and strengthened federal power over drugs. Under the
Controlled Substances Act, passed in 1970 and still in effect today, prohibition
was expanded to countless more substances, to the point where even Indian hemp, a
common crop at the turn of the century, is no longer legal for agriculture or
medical use, state laws to the contrary.
The year 1906 proved fateful on
the international front as well. In Britain, a landslide victory by the Liberal
Party brought the anti-opiumists to power, ending the longstanding dominance of
imperialist free traders. In July, the Chinese government, encouraged by U.S.
missionaries, announced its intent to crack down on opium smoking, removing
previous doubts about the commitment of the Chinese.
Roosevelt sensed the
opportunity to improve U.S. relations with China, which had been badly frayed by
American anti-immigration laws. At the urging of Bishop Brent, he proposed an
international conference on the opium trade be held in Shanghai. In 1909, the
Shanghai Commission issued recommendations aimed at suppressing the opium trade,
while Congress passed the Opium Exclusion Act, prohibiting the importation of
smoking opium altogether.
|The Opium Den ordinance
in San Francisco was passed at a time of intense anti-Chinese hysteria, and was
quickly copies in other towns and states with Chinese settlements.
There followed another international conference at The Hague in 1912, which
established the first multinational treaty to limit international trade in opium
and cocaine. This became the first in a long line of treaties that eventually
culminated in today's international drug prohibition scheme, set forth in the
Single Convention Treaty of 1961 and its sequels. Pursuant to these treaties, the
entire world now lives under a regime of global prohibition, not only of opium,
morphine, and cocaine, but also of cannabis, coca leaves, and almost every other
hallucinogenic or psychoactive substance of interest to human consciousness
(except for alcohol, nicotine, and caffeine).
* * *
Looking back, the toll of the 1906 drug laws seems
as fearsome as that of the great San Francisco earthquake itself. Over the past
century, an entire criminal industry came to flourish; tens of millions were
arrested for drug offenses; hundreds of billions of dollars were spent on drug
enforcement; nearly half the U.S. population was implicated in drug crime;
thousands were killed in drug war violence, and thousands more by overdoses from
dangerous black market products.
But what about narcotics abuse
hasn't that abated?
The number of opium addicts in 1900 has been credibly
estimated at around 200,000 to 400,000 less than today's population of
drug prisoners or less than 0.51% of the adult
population.24 As of 2002, the number of Americans
dependent on illicit drugs was estimated at 4,636,000, or over 1.5% of the
population, according to the National Household Survey on Drug
To be fair, this figure is likely
overstated because it includes cannabis, but the bottom line seems to be that the
total drug addiction rate has been relatively stable at around 0.51% over
the last century. What has not been stable is the rate of drug criminality. In
2004, some 1,740,570 Americans were arrested, and a half million imprisoned, for
drug offenses that simply did not exist a century ago. In short, the drug laws
have served as a giant crime-creation program, turning what had been addicts'
private health problems into a major public crime problem, accounting for nearly
one quarter of all criminal offenses.
As the 21st century begins, it is
well to consider how to undo the damage of 1906. In retrospect, it is hard to
escape the conclusion that the 19th-century system a free market
supervised by labeling and registration under the poison laws worked
better than ours. A strong case can be made for ending the prohibition of
nonmedical use of drugs and allowing their sale in pharmacies with appropriate
informed consent. Before this can happen, however, Americans need to recognize
the historical failure of prohibition, to understand that the best protection
from dangerous drugs comes from their own personal responsibility, and to once
again assert the right to freedom of choice in medication they had in the days of
Jefferson and Mill.
|* ||Chloral hydrate, a sedative that is still on the market, has
long lost its status as a drug of abuse. This aptly illustrates the transitory,
contingent status of drugs of abuse. Conversely, the DCPPA neglected to restrict
heroin, which was originally sold as cough syrup, but is now illegal even in
- "The Portable Thomas Jefferson," ed. Merrill D. Peterson (Penguin Books,
1980), p. 211.
- J.S. Mill, "On Liberty," (W.W. Norton, 1975), p. 10.
- Ibid., p. 83.
- Samuel Hopkins Adams, "The Great American Fraud,"
Colliers, Oct. 7, 1905: http://www.mtn.org/quack/ephemera/oct7-01.htm.
Phillips Street, "The Patent Medicine Situation," American Journal of Public
Health 7 (1917), pp. 103742.
- William Harbaugh, "Power and
Responsibility: The Life and Times of Theodore Roosevelt" (Octagon Books, 1975)
p. 247; Harvey Wiley, "An Autobiography" (Bobbs-Merrill, 1930), p. 225. Cited in
Anthony Gaughan, "Harvey Wiley, Theodore Roosevelt, and the Federal Regulation of
Food and Drugs," and in Peter Barton Hutt, "Food and Drug Law: An Electronic Book
of Student Papers," Harvard Law School, Winter 2004:
- Wiley, p. 241. Cited
in Gaughan, op. cit.
- "Slaves of Cocaine: Its Use Growing Among the
Lower Classes: No Law Curtailing Sale," Washington Post, Aug 29, 1905, p. 9.
- Thanks to Jerry Mandel for the following references: H.C. Du Bose, "The Opium
Memorial and the Imperial Edict," letter to the North China Herald, Sept. 28,
1906, p. 788; W.W. Rockhill, letters to the Secretary of State from the American
Legation to China, #382 Aug. 29, 1906 and #393 Sept. 8, 1906 in "Papers Relating
to Foreign Relations of the United States with Annual Message of the President
transmitted to Congress," Department of State, GPO, 1909; and Arthur Smith, "The
Uplift of China" (Board of Foreign Mission of the Presbyterian Church of the
U.S., 1907), p. 215 fn 1.
- Tabulation of drug laws in Ronald Hamowy, "Illicit
Drugs and Government Control," in "Dealing With Drugs" (Lexington Books, 1987),
- Mill, op.cit., pp. 8990.
- Joseph Spillane,
"Cocaine: from Medical Marvel to Modern Menace in the United States,
18841920," Chap. 8 (]ohns Hopkins Press, 2000).
- "Slaves of Cocaine: Its
Use Growing Among the Lower Classes," Washington Post, Aug. 29, 1905, p. 9.
- Pacific Medical and Surgical Journal Vol. XXIX (1886), p. 154.
Orders of the Board of Supervisors, Order No. 2,085 "Concerning Cocaine, Morphine
and Certain Substances, the use of which is injurious, and causes vice and
crime." Board of Supervisors, July 18, 1889.
- "Board of Supervisors: Druggists
Oppose the Passage of the Cocaine Ordinance," S.F. Daily Alta Californian, May
- David Musto, "The American Disease: Origins of Narcotic Control"
(Yale University Press, 1973), pp. 34.
- Opium smuggling was also a
sporadic problem due to the fact that the U.S. periodically imposed a stiff
tariff on smoking opium. When the tariff waned, so did the smuggling. Jerry
Mandel, "The Opening Shots of the War on Drugs," Chap. 9 in "How to Legalize
Drugs," ed. Jefferson Fish (Jason Aronson, Inc., 1998).
- "Stop Sale of
Poisons: Druggists Discuss the Proposed District Law," Washington Post, Aug 5,
1904, p. 12.
- Congressional Record, Feb 12, 1906, p. 2437.
- "How the Washington Dope Fiend Satisfies his Desire for the Drug,"
Washington Post, July 1, 1906, p. SM10.
- In the first year of the Harrison
Act, over 23,700 violations were recorded, with 663 convictions; ten years later,
the number of violations had declined by a half, but convictions had soared to
5,000 per year. Annual Reports of the National Commissioner of Internal Revenue
and the Commissioner of Prohibition (courtesy of Jerry Mandel).
op.cit., pp. 46, 2534.