Reefer Collage, Should Marijuana Be Legalized? Smoke The Podcast by Hank Shaeffer
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Since I graduated from Harvard Law and have been known to earn my living as a lawyer, a lot of people who’ve read SMOKE THE BOOK or listened to SMOKE THE PODCAST, ask me what I think about legalizing marijuana. I always tell them the same thing.

They’re asking the wrong question.

The question isn’t “Should marijuana be legalized?” It’s “Why was it criminalized to being with?”

Marijuana is prepared from the top leaves and flowers of the hemp plant. So, here are a few interesting facts:

  • Hemp fiber has been used throughout history. It’s uses range from rope, to fabrics, to industrial materials. Historically, it was often used to make canvas. In fact, the word “canvas” derives from “cannabis”.
  • Hemp seed is a high protein food, with an amino acid profile comparable to meat, milk, eggs and soy.
  • Hemp was grown widely in the United States for three hundred years—from colonial times right into the twentieth century.
  • The Virginia Assembly passed a law in 1619 requiring farmers to grow hemp. It was one of the three main cash crops George Washington grew at Mt. Vernon.

So, how did it suddenly become so dangerous?

The answer is, of course, it didn’t. In fact, the hemp grown today—after roughly a century of criminalization—is far more potent than anything George Washington could have imagined smoking. (I’m not saying he smoked or he didn’t. As far as I know, there’s no evidence one way or the other.)

So, what changed?

What changed, I’m afraid, is the public attitudes toward risk and personal liberty. In law and politics, there is a continuous battle between fear and liberty. In America, fear seems to be winning.

For the record, I don’t smoke dope. (Another question people ask me.) But I did once. And I believe people should have the right—after they attain a minimum age of judgment—to decide for themselves what they want to put in their bodies. Think about it. Why on earth would we want a government—which is nothing but a collection of imperfect people—to tell other imperfect people how to live their lives? Does getting a group together somehow make its members wiser? History actually seems to suggest the opposite.

In Episode 03 (Chapter 7), the Doctor talks about how the criminal law works. If you want to know what I think, listen to what he says, because I agree with him. The law is institutionalized violence. It can’t work without prisons and a police force with guns. That’s not an argument against the law. It’s an argument against extending its reach into areas where we don’t really need it. We pass laws to make ourselves feel safer. But there’s no evidence that many of the laws we pass actually do make us safer. What is clear is that every law we pass limits our freedom. Do we really want people going to jail for refusing to put out a cigarette while talking to a police officer? For illegal lane changes? For busted tail light lenses?

The United States is a nation of immigrants. But sadly, part of the immigrant experience seems to be dumping on immigrants who come after we did, often in moralistic terms. It’s no accident that anti-drug crusades in America have frequently had anti-immigrant,racist overtones. The Calvinist British (Puritans and Pilgrims) disparaged the Catholic Irish and Italians as “drunks”. Mexicans were seen as shameless dope smokers. The Chinese were godless heathens frequenting opium dens. Prohibition in America was a primarily a victory of nativists and revivalists over urban immigrant workers. Read the history; I’m not making this up.

America was settled by two main categories of people: members of religious fringe groups, and economic migrants. These groups have often been in conflict, and they’re still fighting today. It’s a see-saw battle. Sometimes money-making wins out and sometimes the moralists do. So Chinese opium—railed against by the moralists—nevertheless turned up in a wide variety of potions and tonics in the 19th century. Cannabis was a popular ingredient in a range of medicines as well. The original Coca Cola, formulated by a pharmacist, was famously named for cocaine.

The original drug laws—all on the state level—dealt with drugs as an issue of labeling. They required that ingredients be disclosed and, sometimes, that products containing potentially addictive drugs, like opiates, be dispensed by pharmacists. The first federal law dealing with marijuana, the Pure Food and Drug Act, passed in 1906, took the labeling approach, requiring that the presence of cannabis in over-the-counter remedies be disclosed.

Bans on marijuana—in the beginning, these were only at the state level—grew along with the wave of Mexican immigration prompted by the Revolution of 1910. Crimes were blamed on the “marijuana menace” and the racially inferior Hispanics who used it. The criminalization of marijuana grew in lock step with unemployment as the Great Depression settled in. “Research” was undertaken linking the use of marijuana to violence, crime and other socially deviant behaviors, primarily committed by “racially inferior” communities. By 1931, 29 states had outlawed marijuana and more did so later on, prompted by the federal government.

Although the first federal law against marijuana did not appear on the books until 1937, a national campaign against it began in 1930 under the openly racist Harry J. Anslinger, a man who led the Federal Bureau of Narcotics into the 1960s, and carried on a one-man crusade against marijuana.


Over the years since then, the pendulum of marijuana regulation has swung back and forth, mirroring social attitudes in the ongoing culture wars. Reports commissioned by Presidents Kennedy and Johnson found that marijuana use did not induce violence or lead to the use of stronger drugs and a bipartisan commission appointed in 1972 determined that personal use of marijuana should be decriminalized. But Republican President, Richard Nixon, rejected the recommendation. Later, in the conservative Reagan years, mandatory minimum sentences for drug offenses, originally enacted under Eisenhower, but repealed in the 1970s because they had been shown to be ineffective, were nevertheless restored. You’ll learn how mandatory minimums work in SMOKE THE PODCAST, in Episode 2 (Chapter 3) and especially in Episode 6 (Chapter 15).

At present, drug policy is frozen at the federal level because no one wants to be seen as “soft on crime”. As a result, the United States is the prison capital of the world. It represents 5% of the world’s population, but accounts for 25% of the world’s prisoners. It incarcerates a higher percentage of its population than any other country in the world. One out of every 100 adult Americans is now in prison or jail.

Here are some interesting numbers. Between 1980 and 2008, the population of the U.S. increased 33%. The number of violent crimes increased 3% (property crimes actually decreased 20%), but the number of people in jail increased 350%.

Here’s another number. If you go back to 1900, to the days when drug control laws were largely limited to labeling, the incarceration rate was 69 per 100,000, less than 10% of what it is today!

About 60% of prisoners were convicted of nonviolent offenses. In the federal system, the number is 93%. Many of these were drug related. The Federal Bureau of Prisons estimates that just under 50% of all federal prisoners are there on drug offenses. The annual cost of anti-drug efforts in the U.S. is roughly estimated at $50 billion.

Interestingly, it is not the issue of human rights, but the high cost of incarcerating drug offenders that may ultimately cause things to change. Faced with prison overcrowding and budget constraints, there’s now talk on both sides of the aisle about doing something to reduce the number of people behind bars. I suppose you could say this is a rational motivation, but it’s not what motivates me.

If you look at the history, it’s a combination of cultural intolerance, moral hypocrisy, and irrational fear that got us where we are today— along with the economic interests that profit from promoting that sort of thing. If we want to address the problem, that’s where we need to start.

I’ll leave you with one final thought. Risk and liberty go together. They’re two sides of the same coin. If I make bad choices, I suffer bad consequences. But would I really want to give up the right to make choices? Don’t we all have an inalienable right to be wrong?

In a political setting, the calculus is different, but the result is the same. Your liberty comes at my risk, and my liberty comes at yours. But since we share the same legal system, when you take away my liberty, you also wind up losing yours.

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