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The US used to tax and regulate drugs — not ban them

President Richard Nixon launched the war on drugs, but only after decades of build-up.
President Richard Nixon launched the war on drugs, but only after decades of build-up.
Hulton Archive via Getty Images

The most important period for the war on drugs may not have been the 1970s, when President Richard Nixon declared the war and Congress passed the Controlled Substances Act, or even the early 20th century, when lawmakers approved new taxes and regulations that effectively prohibited the distribution of certain drugs (dubbed narcotics) for recreational use.

Instead, historian Kathleen Frydl argues the most important moments may have occurred from the 1940s to the 1970s — as lawmakers began transitioning the war on drugs from a tax-and-regulate model to a criminalization approach.

In The Drug Wars in America, 1940-1973, Frydl argues policymakers of the period ramped up their anti-drug efforts as a means of building the government's power — both to legitimize increased police authority at home and justify new international incursions abroad. I sat down with Frydl on Friday to discuss her book, the war on drugs, and what we can expect in future drug policy.

German Lopez: What do you think is often missed in discussions of the war on drugs?

Kathleen Frydl: Most of the drug war literature discusses the war on drugs as either a racial and class agenda, or it discusses the war on drugs as a response to modernity and the disorder that modernity produces. I don't disagree with either line of argument, but I think both of them miss the actual "how." How did the state move from regulating drugs via a tax regime — taxes and tariffs — to a criminal punishment and prohibitive regime?

The "how" part of the story actually supplements both arguments: the race and class argument, and the struggles to deal with modernity. That new layer and frame of reference is that of the state, and how the state made choices to manage its power at the dawn of America's global ascendance. How the state made choices to manage its power proved just as consequential to the formulation of the modern drug war as race, class, and modernity.

bureau of narcotics detective

A narcotics detective making out his report in front of a case containing drugs and drug paraphernalia confiscated from addicts and dealers at New York Police Department's Bureau of Narcotics. (Fox Photos via Getty Images)

German Lopez: Your book focuses a lot on how the state — the government — tested a lot of these anti-drug approaches in the District of Columbia. Was DC treated as a launching point of sorts at the time?

Kathleen Frydl: DC was the proving ground for some of the most abrupt and controversial aspects of the modern drug war. There are specific tools — mandatory minimum sentencing, no-knock searches, and asset forfeiture — that were tried first in the District before they were exported to the narcotics enforcement agenda.

That's not by accident. There are two important reasons why that happened. First, the District had no self-governance; the District had no power in how to govern itself, so if Congress wished to impose these tools and they knew them to be controversial, then the District was the ideal place to do it. Second, the fact that DC was at that point a majority-black city connoted, to the minds of lawmakers and to the minds of most Americans, the targeted audience against which these tools would be used — and in fact that's been the case even today.

German Lopez: Was DC a particularly violent city at this time? I imagine that could be used as a justification.

Kathleen Frydl: That's a complicated question. I'm going to give you the straight answer, and then I'll add a layer.

The straight answer is no, it wasn't a particularly violent city. Despite efforts from Southern congressmen to portray it as a city on the precipice, where white girls would be raped just for going out after twilight, DC crime rates registered historic lows throughout most of the 1950s. Up until the mid-1960s, DC's crime rate was comparable to other major cities — and, in fact, typically lower.

Southern congressmen were very deliberate in their portrayal, because they posited and constructed an image of black criminality — which they suggested to be the counterpoint to the image propagated by the Civil Rights Movement.

Martin Luther King speaks on the National Mall

Characterizing a black-majority city like Washington, DC, as violent intended to downplay the Civil Rights Movement. (Hulton Archive via Getty Images)

There's another layer to this, though. Before the 1950s, police didn't venture into black neighborhoods, especially poor black neighborhoods, to offer police services. The police "pocketed" crimes that took place in black neighborhoods — meaning, they didn't report them as such. So we cannot seriously know what the genuine crime rate was prior to the late 1960s in these neighborhoods, because police weren't offering police services as robustly as they were in other parts of the city.

So it's an interesting question: How would the crime rate have been affected had the police been more scrupulous in their accounting of crime in these neighborhoods?

German Lopez: How did that begin to change?

Kathleen Frydl: Police started to offer services in the 1950s in these neighborhoods for the first time. They viewed themselves as progressives for doing so, and they viewed themselves as a larger component of the police professionalization movement that was underway at that time.

But the way in which they entered these neighborhoods, with aggressive use of force and high levels of corruption, proved just as jolting to the residents as the crime afflicting them.

So it was a very ambivalent and double-edged moment: The police viewed themselves as more progressive than that which had come before them, but these neighborhoods, which very much wanted police services, nevertheless viewed the police as actors who sometimes couldn't be meaningfully separated from the criminals.

German Lopez: A lot of the book focuses on this transition from the tax-and-regulate model to outright criminalization. How did that process happen?

Kathleen Frydl: It happened incrementally.

First and foremost, the government ratcheted up criminalization policies attached to the tax regime. That's an effort that got underway in the early 1950s using, again, the District of Columbia as this kind of experimental ground, and then was later exported to the narcotics enforcement regime. Mandatory minimum sentencing first came during this period.

cannabis extract marijuana

National Library of Medicine

Marijuana extracts like this were commonly sold at grocery stores in the early 20th century. (National Library of Medicine)

Then, heroin was declared contraband in 1956. Prior to that, heroin was regarded as a medicine, and it was discussed as a medicine. It was not widely used as a medicine, because sources of heroin had been drying up since the 1920s. But it was nevertheless kept in druggists' offices, pharmacists' offices, and medical experiments would sometimes use heroin when other kinds of cough suppressants didn't work.

In 1956, the government says heroin is now contraband. If you're in possession of it, you're in possession of contraband. That was another important step in this transition to criminalization.

One culminating moment was the transfer of the Bureau of Narcotics from the Department of Treasury to the Department of Justice. That's an obvious institutional marker of when something is moving from a taxing agenda to a criminal punishment agenda. That happened in 1968.

Just as important and coincident with all these changes was the refusal to add new synthetic drugs to the taxing regime. In the 1950s, there was a huge amphetamine and barbiturate problem that cost as many lives as any other drug. But Congress refused to add those drugs to the Harrison Narcotics Tax Act. That was a sign that they didn't want to handle drugs through taxes anymore.

Finally, in 1970, with the Controlled Substances Act, we have the creation of schedules. Schedule 1 drugs are prohibited substances. This was really the culmination of 20 years of the ratcheting up of punishment, the institutional transfer, and all these other things.

While other scholars of the drug war tend to see 1970 as the kicking-off point, I very much see it as an endpoint for a two-decade-long story that had preceded it.

German Lopez: How did this tax-and-regulate model work? I know some scholars characterize it as prohibition because it was so stringent. Do you agree?

Kathleen Frydl: This has been a bit of a friendly disagreement between me and other drug war scholars. Just because something is regulated tightly, like Oxycontin, and you can only use it for medical purposes, that seems to me like a very different world than saying it's prohibited. Yet we have many scholars that insist the Harrison Narcotics Act [of 1914] was de facto prohibition.

Heroin definitely obtained a stigma for addiction in the 1920s and 1930s. But it obtained that stigma embedded within its larger reputation as a medicine. People discussed it as a medicine. Newspaper articles from the mid-1950s talked about football coaches who should toughen up their team by giving their players heroin so they can take more pain. When people said "heroin" in the 1950s, they were talking about a medicine that they knew had been diverted into the illicit market and used for recreational purposes.

The taxing regime was a very tightly monitored regime. Nevertheless, there was diversion to the illicit market that took place — just like we still have diversion with prescription painkillers today.

heroin vermont

Opioids, including prescription painkillers, have been linked to more deaths across the country, particularly Vermont. (Spencer Platt / Getty Images News)

I think one of the more awkward addendums to the tax-and-tariff regime was the 1937 Marijuana Tax Act, which added marijuana to the list of taxed and regulated narcotics, because nobody could quite figure out how marijuana is medicine. Some people were using marijuana as a medicine, but nobody really thought of it as a medicine. So the Marijuana Tax Act was more clearly an act in which the government had no intention of dispensing marijuana as a medicine, and had every intention of prohibiting it and limiting its use to the point of eradication.

The Marijuana Tax Act is precisely the act that the entire regime fell on. In the late 1960s, Timothy Leary challenged the Marijuana Tax Act in front of the Supreme Court. He said, "How can I pay taxes on something that once I pay taxes on it, I'm incriminating myself? Doesn't that go against my Fifth Amendment rights against self-incrimination?" The Supreme Court agreed with him, and it struck down the act.

Interestingly enough, the Nixon administration interpreted that ruling as felling the entire structure of drug regulation in this country. In fact, the ruling needed only to apply to the marijuana component, because that's the only component that never had any widespread medicinal purposes. Nevertheless, the Nixon administration seized on it and constructed an entire new approach that's anchored on the Commerce Clause, not the taxing powers of the United States, and moved it over to the criminal code.

opium morphine addiction cure

Opiates, particularly heroin, gained a reputation as addictive and dangerous throughout the 20th century. (Jay Paull / Getty Images)

German Lopez: So Congress refused to add the new synthetic drugs, like amphetamines and barbiturates, to the tax model, but legislators also resisted adding many of them to the criminal model. Is that because they saw the drugs as medically valuable, even though they were killing so many people?

Kathleen Frydl: Absolutely. And they still see the medical value of those drugs.

German Lopez: Even as they still kill a lot of people.

Kathleen Frydl: Exactly. The pharmaceutical industry in this country has a lot to answer for. They are a non-trivial reason why we have a drug war. They were heavily invested in amphetamines and barbiturates, and they made crucial interventions in the 1950s and 1960s to make sure that abusers of those drugs would not meet with criminal punishment and — just as important — there would be no production caps on manufacturing those drugs.

Doctors at the time would testify that amphetamines and barbiturates were killing more people than heroin by far. But heroin had the stigma and a stereotype regarding its typical set of users, and you had a pharmaceutical industry that was making tons of money off the amphetamines and barbiturates.

Today, they make a ton of money off the synthetic narcotics. And they resist regulation just as powerfully as they did back then.

German Lopez: Were there people during this time period that tried to stop the criminalization model?

Kathleen Frydl: I think it was hard to oppose something when it was coming in such a piecemeal fashion. Not even the people driving it really understood what the endpoint would be.

By the late 1950s, you had two important professional communities — the legal and medical communities — that started to criticize the ratcheting up of criminal punishment, as attached to the narcotics regulatory regime. Those critiques resulted in the Kennedy Commission, which reviewed the entire structure.

In Congress, there were also people who were voices, albeit lone voices, against the civil-liberty incursions that the drug war introduced. Senator Wayne Morse spoke out against no-knock searches and mandatory minimum sentences. There have been a succession of libertarian-minded congressional members who felt the drug war was attacking basic political and legal traditions.

German Lopez: Where do you see things heading now? Do you think it's moving toward the tax-and-regulate model we had before?

Kathleen Frydl: Definitely with marijuana, I can see a more relaxed model where the country allows recreational use.

marijuana medicine

American physician and botanist Charles Millspaugh documented the use of marijuana as medicine. (National Library of Medicine)

There are two things I would like to see.

One, President Obama should ask the National Academy of Sciences, or some other blue-ribbon commission, to look into alternatives to prohibition and to weigh, in a cost-benefit analysis, what prohibition brings to the table, up against a tax-and-tariff regime and other alternatives that academics and others may be able to come up with.

Two, the international treaties supporting the war on drugs should be reformed, such that legalization of the substances named within the current conventions isn't viewed as a departure. Uruguay has gotten in some trouble because it chose to legalize marijuana. I think that's ridiculous. We need to reform the conventions so that countries can chart their own course.

Those are the two things I would like to see as a reformer, that I think would get us to the day where the drug war is not seen just as a 100-year aberration, but a 1,000-year aberration.

This interview has been edited for length and clarity.

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