The history of cannabis criminalization is rooted in racism and xenophobia.
We cannot allow this fundamental fact to become lost in discussions about tax revenue and administrative frameworks to legalize a substance whose simple possession has resulted in over 6 million incarcerations over the last decade.
Cannabis was not an illegal plant until the turn of the 20th century, and once we look at the reasons it was criminalized to begin with, we can clearly see the growing absurdity of trying to perpetuate a series of fundamentally and intentionally disingenuous laws that have targeted Black and brown communities for generations.
If we really want to dismantle systems of racism, we must look to the history of how we got here and why.
Today, nine out of 10 Kentuckians favor the legalization of cannabis for medical purposes and six out of 10 favor legalization for any purpose, according to a 2019 Kentucky Health Issues Poll.
One in three Americans live in states when cannabis is legal for adult use.
As of this writing, Kentucky is one of 14 states in our nation that has neither decriminalized cannabis nor approved its adult use for either medical or recreational reasons.
We are currently in a period that favors the legalization of cannabis, but over the last 85 years, our laws and our attitudes towards cannabis have changed drastically.
Beginning around 1910, Mexican immigration increased due to the Mexican Revolution, and it is here that we begin to see the criminalization of cannabis, primarily in border states, based less on the dangerous properties of the plant itself than the xenophobic sentiments prevailing at the time. This is also when we saw the terminology began to change from the botanical term, cannabis, to marijuana, in an attempt to associate the plant with dangerous and criminal behavior by immigrants.
During the 1920s, this rhetoric was amplified through a steady stream of anti-cannabis stories published by the leading newspapers of the time. For example, in 1923, a Hearst paper reported that “Marihuana is a short cut to the insane asylum. Smoke marihuana cigarettes for a month and what was once your brain will be nothing but a storehouse for horrid specters.” In 1925, a New York Times headline went: “Mexican, Crazed by Marihuana, Runs Amuck With Butcher Knife.”
During the 1930s, America was in the throes of the Great Depression, and it was not difficult to tap into deep cultural anxieties about minorities and immigrants.
In 1930, as support for the prohibition of alcohol was waning (the 18th Amendment was repealed in 1933), Harry Anslinger was appointed as the first Commissioner of the Federal Bureau of Narcotics, a precursor to the DEA, and is often thought of the architect of our original drug enforcement laws. He remained in this position until 1962, having done more than perhaps anyone in establishing our mindset of drug use as a moral failing and criminal issue that must be dealt with through harsh penalties.
In 1937, Congress passed the Marihuana Tax Act, which effectively outlawed individual possession and sale of cannabis in the U.S., and imposed onerous fees and record keeping for medical use. This Act was understandably opposed by the American Medical Association because the tax was imposed on anyone who bought, sold, imported, distributed, cultivated or prescribed it as medicine, including physicians, pharmacists and manufacturers. The AMA did not believe the claims that cannabis cause insanity, addiction, and violence, and also objected to the unfamiliar term “marihuana” with which most medical professionals would not equate cannabis. In fact, in 1944, after a five year investigation, the New York Academy of Medicine issued a report that contradicted Anslinger’s opinion that cannabis caused violence, insanity, addiction or led to other drug use.
During the 1950s, we saw an increase in laws that imposed mandatory minimum sentences for drug offenses. The Boggs Act marked the first time that cannabis and narcotics like heroin were treated the same in our criminal system, and imposed two to five year minimum sentences for first offenses, including simple possession. Second offenses carried prison terms of five to 10 years, and third offenses carried a sentence of 10 to 15 years. Five years later, the Narcotics Control Act of 1956 further escalated these penalties, imposing a five-year minimum for first offenses and a 10-year minimum for subsequent offenses.
The 1960s confirmed that these mandatory minimum sentencing laws were not working. The Prettyman Commission in 1963 and the Katzenbach Commission in 1967 both found that longer prison sentences were not an effective deterrent to drug users, that rehabilitation should be a primary objective for the government, and that courts should have wide discretion to deal with drug offenders.
In 1969, 32 years after it was enacted, the Supreme Court struck down the Marihuana Tax Act in Leary v. United States.
In 1970, Congress repealed the Marihuana Tax Act along with mandatory minimums for drug offenses. Instead, it enacted the Controlled Substances Act (CSA), which created five schedules and temporarily classified cannabis under Schedule I, which was reserved for substances that have been determined to have a high potential for abuse and no accepted medical use, thereby prohibiting their use for any purpose. During the 1970s, several states decriminalized cannabis or greatly reduced penalties for possession.
Crucially, the CSA also called for and funded a commission specifically to study whether cannabis belonged in Schedule I. In 1972, the Shafer Commission released a report that recommended decriminalizing simple possession of cannabis, finding that it was as safe as alcohol and did not belong under Schedule I. Nixon rejected the recommendation, and that is why cannabis remains a Schedule I today, despite no evidence to justify the classification.
That was 50 years ago.
Under Reagan, who called cannabis “probably the most dangerous drug in the United States,” the number of people incarcerated for nonviolent drug offenses increased from 50,000 in 1980 to over 400,000 by 1997, as mandatory minimums were reinstated and further strengthened. This era of mass incarceration for low level drug offenses coincided with a crackdown of drug use in minority communities and contributed to the disparities in sentencing that we see today.
Through the next decades, we saw a doubling down of the war on drugs and a militarization of law enforcement under both Democratic and Republican administrations. The consistent thread in the implementation of these laws has been disparate arrest rates and longer sentencing for Black and brown people.
In 2010, arrests for cannabis possession accounted for over half of all drug arrests, and of the arrests made between 2001 and 2010, 88% were for simple possession. In 2020, the number of cannabis-related arrests has dropped to 43%, but nearly 90% of those arrests were for simple possession, according to a report from the ACLU.
In addition, the rate of arrests for Black people is still almost four times higher than for white people nationwide, even though rates of cannabis use are roughly the same. In Kentucky, that number jumps to almost 10 times higher.
These disparities exists despite 36 states having some authorized use of cannabis in statute. While some states have explicitly included provisions that address felony expungement, restoration of voting rights and equitable access to new cannabis industries, some have not.
In Kentucky, we are at a turning point. With the data that we have from states that have decriminalized or legalized cannabis in some form, along with a disgraceful history we should seek to redress, we must adopt the basic provisions of decriminalization legislation, including defining and decriminalizing a personal use quantity of cannabis for possession and cultivation, amending the drug paraphernalia statute to exempt personal use cannabis accessories, and creating a process for automatic expungement of prior convictions relating to personal use amounts of cannabis or cannabis accessories.
We cannot simply move forward with broad cannabis legalization and establishing a new cannabis industry in our Commonwealth without at the same time addressing the disparate and devastating impact that this succession of laws has had on our minority communities since the turn of the century.
This is an opportunity to study our past and learn from it, finally moving away from harmful rhetoric towards rational and equitable policy. We are in a shrinking minority of states that do not have some form of authorized cannabis use on the books. When we move towards the majority of our neighbors in establishing this new industry, let’s make sure we do it right, for the right reasons, and with equal opportunity for everyone in our Commonwealth.
Kentucky Rep. Nima Kulkarni (D-Louisville) pre-filed two bills that address decriminalizing cannabis ahead of the current General Assembly session. To read more about those bills, go here.
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