President Joe Biden made history in October by initiating the most sweeping cannabis reforms of any U.S. president. He announced that he would pardon everyone with a federal charge for simple possession, which affects more than 6,000 people, and started an assessment of whether to loosen federal cannabis law.
It is true that more could have been done, such as pardons for individuals who sold cannabis, and that nothing concrete has changed: a person could still face federal possession charges, and the assessment of federal cannabis law could still lead to a dead end. But reforms at the federal level have been elusive ever since the start of cannabis prohibition nearly a century ago, despite much of the country’s recent piecemeal moves toward legalizing the plant. Biden’s announcement puts a crack in the dam.
Yet, when considering the future, it is worthwhile to contemplate the past. Nearly fifty years ago, another president came quite close to changing the course of cannabis in the U.S.: Jimmy Carter. And for as loud as the voices of the drug war were before and after Congress passed the Controlled Substances Act of 1970—which maintains federal cannabis prohibition as we know it in 2022—there was significant counterpressure against aggressive criminalization of cannabis as some federal officials and experts pushed hard for a new approach.
While cannabis prohibition first took root in the U.S. in the 1930s, the era of Reefer Madness, criminal penalties were harshest to cannabis consumers in the late 1950s: someone who was caught in possession of cannabis for the first time faced a mandatory minimum sentence of two years. The architect of this approach was Harry J. Anslinger, the first commissioner of the U.S. Treasury Department’s Federal Bureau of Narcotics, who held the post from the 30s to the 60s. Anslinger argued that such penalties would deter cannabis consumption and sales.
The opposite happened. A writer in the 1967 issue of Life magazine described cannabis consumption during that time as “the greatest mass flouting of the law since prohibition” of alcohol.
While Congress remained firmly opposed to loosening cannabis restrictions, it quickly became clear that a sentiment shift about cannabis was underway, not only among the public, but among some important officials.
That same year, in 1967, a reporter quoted the U.S. commissioner of Food and Drugs, James L. Goddard, as saying that he didn’t think that cannabis was more dangerous than alcohol. This prompted a tense hearing in the U.S. House of Representatives during which Goddard was asked, essentially, to explain himself.
“All I have to ask is what price are we attaching to this as far as the future cost to society by making felons of these people, by arresting juveniles, whether they actually technically become felons or not? Do we not tend to cast them in the role of involvement with drugs for the rest of their lives, involvement with criminals? Now, are there not better ways of getting at this particular problem?” he asked.
Two years later, there was a similarly heated exchange between Stanley Yolles, the director of the National Institute of Mental Health, and a South Carolina representative, Albert W. Watson. In this instance, Yolles challenged the gateway theory that cannabis consumption led to heroin use, and said that most people treated it like alcohol.
A snippet of that exchange:
Mr. Watson: The fact that 80 to 95 percent of present hard narcotic and heroin users started with marihuana, that is a specious argument or relationship?
Dr. Yolles: Some of them had mothers’ milk, some of them have used alcohol.
Mr. Watson: Doctor, that is the most absurd thing. Are you now intimating that we are comparing the use of marihuana with mothers’ milk? Now, let’s don’t get ridiculous on this.
Dr. Yolles: Mr. Chairman, the World Health Organization itself has stated there is no relationship between the use of marihuana and a progression to heroin.
Later, Yolles also argued for removing mandatory minimums for possession of cannabis.
“The major point I wish to make,” he said, “is that in the case of marihuana, legal penalties were assigned to its use that are strict enough to ruin the life of a first-time offender, with total disregard for medical and scientific evidence of the properties of the drug or its effects. I know of no clearer instance in which the punishment for an infraction of the law is more harmful than the crime.”
The 1967 hearings with Goddard yielded an internal memo circulated among the Food and Drug Administration and the staff of John Gardner, the Secretary of Health, Education, and Welfare (now the Department of Health and Human Services, or DHHS). Yolles, too, was part of the conversations.
The memo explored “alternatives” to the existing federal cannabis law at the time. In reference to the downsides of the status quo, the memo argued that the “punishment” was “much too severe.” It also contended that the “general public does not believe” the statements that the Federal Bureau of Narcotics (now the Drug Enforcement Administration, or DEA), the agency that Anslinger led for three decades until 1962, had made about the potential harms of cannabis.
The memo’s recommendations included eliminating penalties for personal possession, and transferring oversight of cannabis from the Federal Bureau of Narcotics to the Food and Drug Administration in an effort to increase research and to shift from a “punitive” to a “public health approach.” However, although it was briefly unearthed to pressure Goddard during these hearings, that memo and its recommendations remained internal.
President Richard Nixon took office in 1969, and almost immediately declared what one newspaper called a “war on drug abuse.” Congress swiftly passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly referred to as the Controlled Substances Act. While this Act did eliminate the two-year mandatory minimum sentence for cannabis possession, it still allowed for up to one year of imprisonment, despite what officials like Goddard and Yolles had said. And, despite their points that the harms of cannabis were overstated, the Act put cannabis alongside heroin in Schedule I—the strictest category, which is reserved for substances with the highest misuse potential and no accepted medical use.
It’s worth drawing attention to the fact that this debate in the 60s was playing out among the same entities that will determine what happens with cannabis in the coming years. The review of federal law that Biden called for in October was, more specifically, a directive to the secretary of the Department of Health and Human Services to initiate a review of the ongoing placement of cannabis in Schedule I. This would involve the FDA undertaking an examination of the latest research on cannabis, and then making recommendations to the Drug Enforcement Administration, which the DEA could then accept or reject.
It’s also worth noting that, while the 1967 memo and the officials behind it were largely focused on the specific criminal penalties for possession, the memo did also explore the pros and cons of total cannabis legalization. Many of its arguments are essentially the same ones expressed today, which further illustrates how the Schedule I status of cannabis, as well as general social stigmas amid the escalating drug war, ended up hampering the sort of research necessary to better inform today’s cannabis debates.
The memo’s stated potential reasons for total legalization include: that such a move would be “consistent with society’s views on alcohol,” that “marihuana is a social lubricant and tension reducer,” that consumption is “a matter of private morality,” that it is “a mild nonaddicting drug,” that “there is no proof that it causes any more misbehavior than alcohol,” that dependence “is limited to high risk groups,” that generally “it can be grown anywhere and control of its supply would therefore be difficult,” and “experience with current controls has been wholly unsuccessful, since usage has increased largely in the past few years.”
The downsides: that the “physiological and pharmacological” effects of cannabis are still being understood so “the actual risks involved are unknown,” that legalization could “attract many youths who might otherwise not use the drug,” and that “it may well add to the toll of home and highway accidents.”
Two years after Congress passed the Controlled Substances Act of 1970, a National Commission on Marihuana and Drug Abuse, formed by Nixon, recommended decriminalization of cannabis. They wrote in a report: “Unless present policy is redirected, we will perpetuate the same problems, tolerate the same social costs, and find ourselves as we do now, no further along the road to a more rational legal and social approach than we were in 1914.” Nothing changed.
Then came Jimmy Carter, who took office in 1977. By March of that year, Carter asked Congress to decriminalize cannabis possession. Hearings were held starting that month, and by May, the House Select Committee on Narcotics Abuse and Control published its report on “considerations for and against the reduction of federal penalties for possession of small amounts of marihuana for personal use.”
During the first hearing, Peter Bourne, the director of the Office of Drug Abuse Policy (now the Office of National Drug Control Policy), spoke on behalf of the administration, saying, “We believe that the mechanism for discouragement should not be more damaging to the individual than the drugs themselves. We will continue to discourage marihuana use, but we feel criminal penalties that brand otherwise law-abiding people for life are neither an effective nor an appropriate deterrent.”
Particularly fascinating was a subsequent statement from the director of the National Institute of Mental Health, Bertram Brown. He opened by asking for “one minute to display memories, old trophies.”
“First,” he continued, “the courageous statement of my predecessor, Stanley F. Yolles, who said before the Select Committee on Crime of the House of Representatives on October 15, 1969, ‘How long, O, Lord, how long, are we going to suggest new committees, new task forces, new commissions, in lieu of doing something?’ It was the opening gun in the successful fight for decriminalization and for more research on marihuana.”
He then went on to recall how when he suggested decriminalization in 1971, “the result was an attempt by the last president to fire me.”
He concluded, “We do not yet know the consequences of long-term use. We should decriminalize it so that the penalty is less harmful than the drug, but it should not be legalized. I propose we have a five- to ten-year moratorium before taking the momentous step of legalization. This will permit the millions of adolescents and young adults to come into full maturity and to influence the decision on behalf of their own children. I predict their response will be responsible and conservative.”
In addition to federal officials and lawmakers, speakers during the hearing included many of the voices still involved in the legalization debate today, including the National Organization for the Reform of Marijuana Laws, the American Civil Liberties Union, the American Bar Association, the American Medical Association, and the American Legion.
Among the voices supporting decriminalization were Representative Ed Koch (who was later mayor of New York City) and Senator Jacob Javits of New York, and Representative Yvonne Brathwaite Burke of California. Meanwhile, New Hampshire Governor Meldrim Thomson, Jr. spoke out in opposition, as did the chief of the Los Angeles Police Department. (Again, there are noteworthy parallels to today, as New York and California now have legal adult use, while New Hampshire stands out as one of the only remaining states in the northeast to not legalize.)
The Committee’s report, however, ultimately offered no “conclusions or recommendations.”
Carter pushed on. In August of 1977, he published a “Message to the Congress” in which he reiterated his calls for decriminalization.
“Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself; and where they are, they should be changed. Nowhere is this more clear than in the laws against possession of marijuana in private for personal use,” he said. “The National Commission on Marijuana and Drug Abuse concluded five years ago that marijuana use should be decriminalized, and I believe it is time to implement those basic recommendations. Therefore, I support legislation amending Federal law to eliminate all Federal criminal penalties for the possession of up to one ounce of marijuana.”
Carter also directed the Department of Transportation to “expedite its study of the effects of marijuana use on the coordination and reflexes needed for safe driving.” And yet, today, there is still no federal standard for cannabis impairment on the road as there is for alcohol, and no body of research comprehensive enough to support such a standard.
However, the end of the decriminalization push under Carter came quickly. By the next summer, Bourne—seen as the face of the decriminalization effort—resigned on the heels of two controversies: he admitted to reports that he wrote a prescription for Quaalude for a White House staffer, and, as soon as that news broke, reports began to circulate that he’d consumed either cannabis, cocaine, or both, during a NORML holiday party in D.C. months earlier. Bourne denied these reports, but the damage was done.
No one can say for certain that this alone ended the decriminalization movement, but it certainly complicated it. And, a couple of years later, President Ronald Reagan would take office and swing the pendulum for drug reform in the other direction, toward “Just Say No.”
“The mood towards drugs is changing in this country and the momentum is with us,” Reagan said in October 1982. “We’re making no excuses for drugs, hard, soft, or otherwise. Drugs are bad and we’re going after them.”
Forty years later, down to the same month, came Biden’s announcement: the first blanket federal pardons for cannabis possession, the first direct order to consider cannabis rescheduling. Against the backdrop of forty years of inaction, this is significant, a major step.
Yet against the backdrop of the calls for a new federal approach that were first heard in the halls of government more than forty years ago and continued under several presidents, it is a meager step, given the millions of lives that were shaped by the penal code over those years and all the study and research that did not get done and that might have helped shaped intelligent policy.
Legalization of cannabis is inevitable. More than 60 percent of Americans support legalization for all adults, and more than 90 percent support legalization for medical use. Today, all but a handful of states have legalized cannabis for medical use, general adult use, or both. Frozen federal law has stymied these states’ efforts to establish successful industries and sensible rules.
As Biden said in October, “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”
Author’s note: some material for this piece was pulled from my book, A New Leaf: The End of Cannabis Prohibition.