Weed v. United States

slip a fist up

Pennsylvania Lieutenant Governor John Fetterman’s campaign slogan for an upcoming U.S. Senate run is “Fetterman4Senate 2022.” The “4” and “20” are seaweed colored, a nod to the de facto marijuana holiday on April 20th. Following Fetterman, other major politicians, including Senators Cory Booker (D-NJ) and Majority Leader Chuck Shumer (D-NY) currently draft a legalization bill. Paralleling these politicians, two-thirds of Americans, including half of identifying Republicans, support legalization. These developments beg the questions: “Why and how did we illegalize it in the first place? 

Some scholars have already considered these. Kenneth Michael White, an assistant professor of Political Science and Criminal Justice at Kennesaw State University, and Mirya R. Holman, an associate professor of Political Science at Tulane University, note the dubious constitutionality of historical prohibition and the skewed persecution of minorities in California. They specifically point toward the doctrine of “selective-prosecution.” This doctrine, established by the Supreme Court in the 1996 case United States v. Armstrong, does not relate to guilt, but involves a defendant’s claim that a law and its execution involves a “discriminatory effect and… purpose.”

I would like to take this argument one step forward. As I will point out, pseudo-intellectual arguments have plagued anti-marijuana laws since the turn of the 19th century and our nation has long used these laws as a wedge to persecute minorities. Thus, we and legislatures must approach weed with a clean slate, reconsidering standing policies. 

Marijuana prohibition’s genesis lies in demagoguery and racist rationalizations by state and federal legislators. Soon after the influx of Mexican and Asian immigrants in western states around the turn of the 19th century, politicians associated them with the substance. Following nativist prejudice against these groups, marijuana quickly became stigmatized by legislatures. With little attention from constituents, Utah became the first state to illegalize the substance in 1915. By 1931, half of the nations’ states illegalized the substance. However, the pas da resistance of early marijuana prohibition was the federal government adding marijuana to the Harrison Narcotics Act of 1914, which sanctioned the use, distribution and importation of marijuana through monetary penalties. 

Rationalizing the federal government’s growing stringency on the substance, the media fed legislators’ bigotry with sensationalistic stories involving the corruption and mutilation of white youth. An article about a murdered infant concludes: “Who tortured that poor helpless infant? Nobody knows, yet but [sic] they are looking for someone who smokes ‘murder smoke.’” Another article entitled “3 women slain” urges readers: “Ask the police, they'll tell you a tale about ‘Murder Smoke’ crimes, a tale that will freeze the warmest blood in the calmest veins.” Ironically, local policemen had to be shown the drug after legislatures prohibited it in 1936. 

This burned two joints with one breath: constituents would distrust marijuana while villainizing Mexican, Asian and Black Americans, the last of whom became associated with the drug during the rising popularity of jazz music in the 1930s. 

Creating a trifecta in the absurd villainization of marijuana, the Supreme Court relied on pseudo-scientific evidence to paint marijuana as a crime-inducing substance. The 1931 case State v. Bonoa, in which the defendant appealed a possession conviction, the Court quoted the text Pharmacotherapeutics: “In certain eastern people…[there is] a loss of restraint…An Arab leader[‘s]...bodyguard…partook… [and] rushed madly on their enemies…[Cannabis] causes…a loss of mentality.” 

The following decades saw federal and local governments become even more stringent on marijuana. The federal Boggs Act of 1952 and the Narcotics Control Act of 1956 introduced mandatory minimum sentences and hefty fines for first-offense possession. Again, legislators ignored scientific evidence; the latter pushed for harsher sentencing without mentioning the substance’s physiological effects on the body and mind. 

Less than ten years later, the marijuana market boomed in the United States. In fact, it  thrived in middle class suburbia and college campuses—overwhelmingly white. As its popularity surged through the seventies, it became an increasingly polarizing issue. As anti-war movement activists, counterculture hippies, and college students enjoyed ‘Mary Jane,’ social conservatives further stigmatized the grass that fed their free spirits. In a 1977 letter to the editor in The Rag newspaper, “One Red Blooded American” argues that marijuana falters the commitment of “pansies” to the nation. Those associated with laziness and anti-Americanism carried themselves with pride, bolstered by their common disgust toward the United States’ role in the Vietnam War. Marijuana policy became not just a legal battle, but a conflict over American culture and where it would be headed. 

This polarization had disastrous effects for marijuana policy, particularly for minorities. Coined by President Nixon, the War on Drugs quickly saw marijuana become a Schedule I substance under the Controlled Substances Act (CSA). The Drug Enforcement Administration defines this classification as marijuana “[having] a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision." This replaced the Marijuana Tax Act with a mixture of less and more punitive statutes. Despite this, this act solidified the federal government’s stance as anti-marijuana. 

Though understanding the physiological effects of marijuana should precede conversations on whether or not legislatures should illegalize it, this Act seems more like a means to a political end. During an era which saw politicians desperate to regain approval ratings during an unpopular war, they scapegoated the most outspoken communities. In a 1994 interview, an aide to Nixon expressed the administration’s game plan: “by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.” Despite the prevalence of white users, a 2011 report by the U.S. Department of Justice finds higher arrest rates among Blacks and Asians and Pacific Islanders than whites in the 1985-6 period. 

Though some may respond that arrest rates correlate to criminal activities by race, historians and sociologists like political science professor Cigdim V. Sirin agree that “the highly discretionary nature of drug law enforcement [and] rates of arrest and conviction often reflect racialized investigation and enforcement decisions.”

After President H.W. Bush’s perpetuation of the War, most recognized through his labeling of inner-city boys associated with weed as “super-predators,” contemporary politics has eased on marijuana policy. President Obama’s administration decided to not allocate federal resources toward prosecuting individual possession. Regarding individual states, five maintain complete illegality, 19 states and the District of Columbia maintain full legality, and other states lie somewhere in between. 

Nonetheless, as The Drug Policy Alliance puts it, “the effects of the War on Drugs rage on.” It laments statistics like: 

Nearly 80 percent of people in federal prison and almost 60 percent of people in state prison for drug offenses are Black or Latino. Further, prosecutors are twice as likely to pursue a mandatory minimum sentence for Black people as for white people charged with the same offense.

No matter how liberal the nation may become on weed policy, nothing can recover the widespread strife, broken families, livelihoods halted, futures shattered and lives spent in shackles over something intended to do just that. Sadly, the powerful have used weed as a wedge to enforce others’ second-class standing. We owe it to the unfortunate individuals unjustly placed behind bars and their loved ones to consider marijuana legislation without a discriminatory effect and purpose. Let’s study and talk about weed, and let’s do it the right way. 

Kennon Von Walton is a Trinity sophomore. His column, Slip a Fist Up, usually runs on alternate Tuesdays.


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