There’s No Rational Way to Justify America’s Drug Laws

In 2013, CNN’s medical correspondent, Sanjay Gupta, offered a rare public apology. He admitted that he was wrong about medical marijuana and had been “too dismissive” of patients’ claims about its effectiveness, lumping them in with “high-visibility malingerers, just looking to get high.”

The story of his reversal reveals a fundamental and ongoing problem with the way the media and public view our drug laws—and why we need to understand their origins to move forward.

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Admissions of error from either journalists or doctors, of course, are unusual in and of themselves. But this one was triply exceptional in that its author recognized that he’d been taken in by conventional wisdom. To wit, Gupta said:

I mistakenly believed the Drug Enforcement Agency listed marijuana as a schedule 1 substance because of sound scientific proof. Surely, they must have quality reasoning as to why marijuana is in the category of the most dangerous drugs that have “no accepted medicinal use and a high potential for abuse.” They didn’t have the science to support that claim, and I now know that when it comes to marijuana neither of those things are true.

Indeed, few of our laws regarding psychoactive drugs—with the exception of those related to pharmaceuticals for medical use regulated by the Food and Drug Administration (FDA)—are based on either science or reason.

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But most people seem to assume, as Gupta did, that at some point, a committee of wise and knowledgeable medical authorities sat down to consider which recreational drugs were the safest and least addictive. This august group then decided that alcohol, tobacco, and caffeine should be legal, while marijuana and everything else should not.

The assumption that this completely imaginary process occurred comes from an underlying bias that we all tend to have, which is to believe that laws are generally made for good reasons, even if we don’t know what they are. In fact, however, our drug prohibitions were created after a series of moral panics over race and immigration.

And they have locked us into a regulatory system in which no recreational drug that wasn’t favored by or known to 19th century colonialists—regardless of whether it does anyone any harm—can ever be approved. If more people knew this history and the press stopped simply assuming that these laws are rational, we’d be much better off.

Cocaine, for example, was first banned via state laws in the south. In 1905, a headline in the New York Times on the subject read “Negro Cocaine Evil” and quoted a police officer who said that “there is nothing too awful for [the cocaine user] to attempt under its influence.”

An infamous 1914 piece in the Times was headed “Negro Cocaine Fiends Are a New Southern Menace.” Written by a doctor, it claimed that coke not only made black men better marksmen, but also rendered them less vulnerable to bullets, requiring police to use higher-caliber weapons to kill them.

Cocaine was widely used by black railroad workers of the time—some of their bosses even promoted this use to spur their backbreaking labor, according to Scott Reynolds Nelson, in his history of the folk legend railway worker, John Henry, Steel Drivin’ Man. But, as cocaine spread, so did white fear of its strengthening properties.

As historian, David Musto, put it in his book, The American Disease: Origins of Narcotic Control, “The fear of the cocainized black coincided with the peak of lynchings, legal segregation, and voting laws all designed to remove political and social power from him. Fear of cocaine might have contributed to the dread that the black might rise above ‘his place’ as well as reflecting the extent to which cocaine may have released defiance and retribution.”

Opium bans also began in Western states around the turn of the 20th century and these, too, were linked with a feared group of railroad workers who might threaten whites—in this case, Chinese immigrants. The panic included lurid coverage of “white slavery” and stoked fear that Chinese men were using opium to seduce white women and girls into a life of degradation and crime.

Both drugs were banned federally in 1914, under the guise of a tax law, the Harrison Narcotics Act, which evolved into our current absolute prohibition. Alcohol Prohibition came next, in 1919—and this ban was also linked to fear of alien “others.” In this case, it was propelled in large part by fears about rising numbers of German and Irish immigrants, who were seen as backwards and impossible to assimilate.

The Ku Klux Klan was a major force behind Prohibition as they feared alcohol would spur rebellion, and membership between that group and one of the leading lobbyists for Prohibition, the Anti-Saloon League, showed significant overlap. (There was also some support for Prohibition from the black community, but for the opposite reasons: Black intellectuals like Frederick Douglass saw alcohol use as a form of slavery.)

And the links between racism and the 1937 ban on marijuana are also clear. The nation’s first “drug czar” Harry Anslinger used fear about its promotion by Mexicans and black people to stir panic. (He had a bizarrely obsessive hatred of jazz, which he associated with drug use, even pursuing Billie Holiday for simple drug possession as she lay dying). He claimed that marijuana causes “insanity” and testified to Congress that the word “‘assassin’ aptly describes the drug.”

Some dispute whether Anslinger actually uttered some of the quotes attributed to him. Most notoriously, he was said to have claimed that “reefer makes [black men] think they’re as good as white men” and “There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others.”

Regardless of whether these quotations are 100 percent accurate, there is no doubt that Anslinger frequently used racial animus to support his cause (he was actually threatened with dismissal by a Congressman for using the n-word), as did many of his followers.

Nor was there scientific justification for an anti-cannabis crusade, even at the time: in his bestselling Chasing the Scream, Johann Hari reported that Anslinger consulted 30 doctors on whether marijuana was dangerous to public health and should be prohibited before fighting for its ban: 29 of them said no, but he only quoted the one who agreed with him.

When the drug laws were updated in 1970, marijuana was “provisionally” placed in the most strongly prohibited category, schedule 1, which is supposed to include only the most dangerous and addictive drugs that have no medical use. President Richard Nixon commissioned a report, which found further evidence that marijuana is not as harmful as legal alcohol or tobacco, but he ignored it.

Nixon’s political strategy required war on drugs, as one of his aides later told journalist Dan Baum:

We knew we couldn’t make it illegal to be either against the [Vietnam] war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

And, more than 50 years later, provisional seems to have become permanent. Cocaine, fentanyl, and methamphetamine, meanwhile, are schedule 2 and allowed to be used in medicine—even though all are undoubtedly more harmful and addictive than marijuana.

To make the “schedules” even sillier, the FDA has just approved the fourth pharmaceutical based on marijuana: The first three are synthetic versions of THC, the active ingredient in weed. Marinol, the first of these, was approved in the 1980s for nausea associated with chemotherapy. Epidiolex, which is made from the plant itself and based on the non-psychoactive cannabinoid CBD, was approved in late June for treatment of epilepsy. (The FDA has asked the DEA to reschedule CBD, but not cannabis.) This means, basically, that a drug that supposedly has no medical efficacy is already being prescribed.

Undoubtedly, American drug prohibition has been driven by factors other than racism and immigration panics as well—but what has not been taken into account by our laws is the harm these policies themselves do. By acknowledging their twisted history we can stop assuming that they are based on “quality reasoning” and start moving toward approaches that actually do more good than harm.

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