Pharmacology  

Centennial of an Unnatural Disaster

by Dale Gieringer

In 1906, an innocuous law started us down the slope that led to the War on Drugs.

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"Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now [i.e., under the established church]. Thus in France the emetic was once forbidden as a medicine, and the potatoe as an article of food."

— Thomas Jefferson
Notes on the State of Virginia, Query XVII¹

This year is a noteworthy landmark in U.S. history: the centennial of the first federal drug control laws. Americans have long forgotten that for the first half of the nation's history there were no illegal drugs. In my own grandparents' time, Americans could obtain any drug at the pharmacy — including so-called narcotics such as opium, morphine, cocaine, and cannabis — without criminal sanction. This began to change a hundred years ago, just after the great San Francisco earthquake, when Congress effected a seismic change in U.S. drug policy by enacting the first federal laws aimed at restricting sales of dangerous drugs. The most celebrated of these was the Pure Food and Drugs Act, enacted on June 30, 1906, which outlawed the manufacture and sale of adulterated, misbranded, poisonous, or "deleterious" foods and drugs. While generally well intended, the law incidentally gave unprecedented power to federal bureaucrats to decide what kinds of drugs consumers could purchase, a power that would soon be abused to prohibit consumer access to otherwise harmless and even beneficial products.

Less well known, but more drastic in its implications, was the District of Columbia Pharmacy and Poisons Act, aimed at prohibiting the sale of habit-forming drugs to drug fiends. Enacted a few weeks earlier, on May 7, 1906, the act prohibited the sale of habit-forming drugs such as opium, morphine, cocaine, and chloral hydrate^* without a doctor's prescription. Although the act applied only to the District, it was conceived as a model bill for the states, since Congress was still widely held to lack constitutional power to regulate drug sales outside the District (a doctrine long since abandoned by the courts). The act was the first in a succession of antinarcotics laws that would ultimately culminate in the first comprehensive national narcotics prohibition law, the Harrison Act of 1914, which would be passed in the guise of a tax bill so as to pass constitutional muster.

The 1906 legislation marked a watershed in U.S. drug policy. Until the 20th century, the national drug market was governed by a laissez-faire policy. The prevailing philosophy was that buyers and sellers should be free to engage in trade, unfettered by government regulations. The basis for nonintervention was set forth by the great antiprohibitionist and classical liberal economist John Stuart Mill in his famous treatise, "On Liberty": "That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."² From this, Mill argued against limitations on free trade in alcohol and opium as unjustified infringements on the rights of the buyer, though not the seller.³ By the late 19th century, a number of states and cities had begun to reject this philosophy by experimenting with local prohibition laws regarding smoking opium and cocaine as well as alcohol. Nonetheless, it was still widely held that this was a matter for local, not federal, government. These restraints were cast off by the 1906 legislation, which gave the federal government a dominant role in determining which drugs Americans could consume.

The intent of the Pure Food and Drugs Act, to prevent the sale of adulterated, misbranded, and often fraudulent products, was basically sound. It passed on a wave of popular revulsion against widespread abuses in the patent medicine industry, stirred up by the journalist Samuel Hopkins Adams in his exposé "The Great American Fraud" in Colliers magazine.⁴

One of the act's central provisions was to require that medicines bear warning labels if they contained habit-forming drugs such as alcohol, opiates, cocaine, cannabis, or chloral hydrate (plus the now-forgotten alpha- and beta-eucaine, chloroform, and acetanilide). It further required that the quantities of these drugs be specified on the label. In essence, this was a "truth in labeling" policy, which, being informative, not prohibitive, was altogether consistent with the principles of J.S. Mill. Contemporary observers credited the act with a substantial decline in the use of patent medicines with dangerous intoxicants.⁵

However, the act had a dark side as well, as it put the power to make decisions about what drugs could be sold into the hands of a new federal regulatory agency — the Department of Agriculture's Bureau of Chemistry, the predecessor of today's FDA. In specific, the Bureau was empowered to remove products that it found to be "adulterated" with substances "deleterious" to human health, and to ban the importation of any drug deemed "dangerous to the health of the people of the United States." The definition of such terms inevitably involved subjective value judgments, which under the act would be determined by federal bureaucrats instead of individual consumers and producers in the market. The dangers of this arrangement were aptly pointed out by Sen. Nelson Aldrich (grandfather of Gov. Nelson Aldrich Rockefeller, the eponymous author of New York's punitive drug law), who warned that "the liberty of all the people of the United States" would be undermined by "chemists of the Agriculture Department" with an interest in regulation.⁶ No doubt Sen. Aldrich's remarks were aimed at the Bureau's crusading director, Harvey Washington Wiley, who had championed the new law. An aggressive proponent of regulation, Wiley was a forerunner of today's consumer protectionists, highly averse to chemical additives, inclined to exaggerating scientific evidence about their dangers, and prohibitionist with regards to many substances, including alcohol. Taking an aggressive interpretation of the act's provisions regarding "adulteration," Wiley sought to have several popular ingredients banned from the food supply, among them saccharin, sodium benzoate, and caffeine. His efforts wound up discrediting him with President Theodore Roosevelt, who remarked, "Anybody who says saccharin is injurious to health is an idiot."⁷

However, Wiley was more successful with cocaine, which enjoyed popularity as an ingredient in several tonics and beverages but had recently come into disrepute. Cocaine is derived from the coca leaf, used since time immemorial by South American Indians with no evident ill effects. It was first popularized in the form of relatively mild tonics such as the famous Vin Mariani — endorsed by Thomas Edison, Pope Leo XIII, and President McKinley — and the original Coca-Cola. Like the coca tea enjoyed in the Andes, these beverages contained low levels of cocaine, and produced no evident ill effects.

However, problems began to arise with the introduction of more potent cocaine in pure, powdered form following the announcement of its remarkable pharmaceutical properties by Carl Koller in 1884. A brief flurry of medical enthusiasm was soon dampened by disturbing reports of addiction, as previously normal patients became transformed into crazed "cocaine fiends." In the South, cocaine was blamed for inciting violent behavior in blacks. In the nation's capital, cocaine was seen as "one of the growing evils of the city among the lower classes," and became a motivating factor in the District Commissioners' push for the D.C. Pharmacy and Poisons Act.⁸ By 1906, nearly half the states had laws prohibiting the sale of cocaine except on a doctor's prescription — essentially the model followed in the Harrison Act.

Although the Pure Food and Drugs Act was not prima facie a prohibition law, its provisions regarding food adulteration gave the Bureau leverage to intervene in the marketplace. In specific, the act defined adulterants to include any "deleterious ingredient" that might render the article "injurious to health."

Seizing on this provision, Wiley declared cocaine to be an "adulterant" and sued to have it removed from beverages. At no point did Wiley ever show that the low levels of cocaine in coca beverages were actually injurious to health. Indeed, coca beverages and leaf remain legal to this day in the Andean countries, where they are thought to help stave off fatigue, hunger, and diabetes. Nevertheless, Wiley succeeded in pressuring manufacturers to withdraw all cocaine from their beverages.

Ironically, that left only the more potent, addictive form of cocaine available on the market as a pharmaceutical drug. Although cocaine was ultimately restricted to prescription-only use under the Harrison Act, nothing could stop it from leaking out into the nonmedical black market, eventually metastasizing into other countries and becoming one of the world's largest criminal enterprises. Wiley's ban on coca would eventually be incorporated into international law by the Single Convention Treaty (1961), at the insistence of U.S. drug bureaucrats. While criminalization of the coca trade has effectively "protected" American consumers from harmless coca beverages, it has left millions more exposed to illicit, high-potency cocaine. Meanwhile, it has inflamed a violent war in Latin America that has cost U.S. taxpayers billions of dollars, claimed thousands of casualties, and injected corruption, violence, gangsterism, and criminality into what was a peaceful and lawful business a century ago.

As time passed, the Pure Food and Drugs Act would be vastly expanded to encompass virtually every aspect of pharmaceutical choice. The FDA was given the power to decide what new drugs could be introduced by the 1938 Food, Drug and Cosmetic Act, which established the modern drug approval system. In time, the definition of new drugs would be stretched to include even familiar old ones like cannabis indica, known to medicine for centuries but presently banned as a presumably unsafe, unproven "new" product.

One consequence of the FDCA was to empower the FDA to enact a new labeling regulation making it illegal for prescription drugs to be sold over the counter, effectively repealing the right to self-medication. As a result, Americans are now substantially less free than their Mexican neighbors to purchase needed medicine.

Drug approval requirements were stiffened by the 1962 Amendments, which required that drugs be proven "effective" as well as safe. This greatly increased the time and cost of new drug development, depriving U.S. consumers of beneficial new medications that had already been approved in other countries, a phenomenon that became known as "drug lag." The FDA was also given sweeping powers to regulate unapproved, investigational drugs. By law, no such drug can be given to any human subject without prior FDA approval. Pursuant to these powers, the FDA has suppressed many drug studies entirely; patients with incurable diseases have been denied access to new, experimental treatments. Some have sought treatment abroad; others have broken the law to smuggle drugs back to the land of the free. Entering the 21st century, Americans are no more free to use unapproved medication than the colonists of Jefferson's day were to practice unestablished religion.

If the Pure Food and Drugs Act was the slippery slope to prohibition, the D.C. Pharmacy and Poisons Act was the step off the cliff. The DCPPA was explicitly intended to curb the "drug-habit evil" in the District by prohibiting the sale of narcotics without a prescription — a policy adopted by other antinarcotics laws of the era, including the Harrison Act. The DCPPA explicitly covered sales of opium, morphine, cocaine, and chloral hydrate. The act also prohibited physicians from prescribing narcotics to addicts, except for purposes of treating illness or curing addiction. This officially marked the abandonment of the 19th-century libertarian principles of John Stuart Mill and the embrace of 20th-century prohibitionism.

The DCPPA was the work of two rising forces in American politics: the waxing temperance movement, which would eventually succeed in imposing alcohol prohibition, and the turn-of-the-century progressive movement, which championed a more activist role for federal government in social regulation. The progressives were led by professional groups and incipient drug bureaucrats, with strong support from President Theodore Roosevelt.

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The moral groundwork for drug prohibition was laid by temperance groups such as the Women's Christian Temperance Union, which had been agitating against the use of intoxicants for a generation. While alcohol was far and away its leading concern, the WCTU also took an interest in narcotics, sponsoring an international petition against opium traffic and successfully lobbying for antinarcotics and antialcohol education in the schools.

Internationally, British opium traffic in China represented the Evil Empire for the antinarcotics crusade. As a result of its defeat in the Opium Wars, China had been forced to open its ports to free trade in opium from British-ruled India. In Britain, religious and moral reformers, predominantly from the Liberal party, formed the Society for Suppression of the Opium Trade in 1874.

For a generation, the society waged a futile fight against British imperial interests, which welcomed the revenues from the opium trade. The battle was joined by a network of Protestant missionaries in China and Asia, many of them American, who communicated through numerous publications and organizations. Among the most prominent were the Anti-Opium League, whose president, the Rev. Hampden Coit Du Bose, would be instrumental in drafting the Chinese Empress Dowager's 1906 edict prohibiting opium,⁹ and the International Reform Bureau, founded by the Rev. Wilbur Crafts, which successfully lobbied Congress to pass the Gillett-Lodge Act (1902) prohibiting sales of firearms, liquor, and opium to aboriginal natives of the Pacific Islands.

In an era when opium was widely accepted as the most effective household analgesic (aspirin not being introduced until 1899, one year after heroin), the Chinese habit of smoking opium was looked down on as an alien and degrading vice. Chinese smoking opium was readily differentiable from household medical opium, since it was prepared in a different manner. It became the target of the very first local antidrug law in the United States, San Francisco's 1875 Opium Den Ordinance, which made it a misdemeanor to keep or frequent a den for the purpose of opium smoking.

The San Francisco ordinance was passed at a time of intense anti-Chinese hysteria, and was quickly copied in other towns and states with Chinese settlements. By 1900, 22 states and territories had enacted statutes banning opium dens.¹⁰ For the most part, these were not strictly speaking prohibition laws, since they did not actually ban the sale or use of opium, only the ownership of public premises for its consumption. The notable exception was Nevada, which in 1877 became the first state to enact a full-scale opium-control law, prohibiting its sale without a physician's prescription.

During the late 19th century, professional pharmacy and medical groups began to propose additional measures to address the proliferation of dangerous drugs. The period saw the development of newer, more potent agents such as morphine, cocaine, chloral hydrate, and heroin, along with better hypodermic syringes to deliver them. At the same time there grew a flourishing trade in patent medicines containing secret, often toxic ingredients. In this climate, poisonings, both accidental and malicious, became the leading drug problem of the day. (The Washington Post online archive lists 6,342 articles mentioning "poison" in the 30 years before 1907, versus 4,184 for all narcotics combined; from 1987 to the present, "poison" mentions total 6,725, versus 15,913 for cocaine alone.)

In response, states began to enact "poison laws" requiring warning labels and other precautions for listed poisons. Pharmacists, represented by influential lobbying organizations, promoted passage of these laws, which also conveniently restricted sales to licensed pharmacies.

Another important feature of the poison laws was the requirement that sales be recorded in a "poison register" listing the name of the purchaser, the name and quantity of the poison, and the purpose for which it was being used. The register was subject to inspection by the authorities. In addition to lethal agents like strychnine and arsenic, the listed poisons typically included narcotics such as opium, morphine, chloral hydrate, and cocaine, which were poisonous in overdose. In principle, the registration requirement was intended to discourage criminal misuse, not limit consumer choice. Hence poison laws were endorsed by John Stuart Mill himself as an appropriate precaution against accidents and criminal activity.¹¹

In practice, the poison laws had an incidental restraining effect on narcotics sales. This was partly due to the warning labels, which discouraged careless use. Yet even more significant may have been the "purpose of use" recorded in the register.

In general, the sale of drugs for nonmedical ("recreational") purposes was considered unethical by pharmacists, many of whom refused to sell cocaine or morphine to "fiends" lacking a doctor's prescription. In practice, fiends had to seek out the less scrupulous druggists and peddlers to supply their habits, creating what was described as a "shadow market" for recreational drugs.¹² In the District, the shadow market for cocaine was supplied by just four or five licensed pharmacies.¹³

More explicitly prohibitionist measures began to be proposed in the 1880s, when the modern phenomenon of the drug habit began to manifest itself. As medical science advanced, doctors became increasingly troubled by evidence of iatrogenic addiction resulting from overprescription of narcotic drugs. Just as troubling was the emergence of a new class of street addicts given to drug use without medical justification — a type characterized by ne'er do wells, criminals, gamblers, prostitutes, and other undesirables, plus the occasional gentleman addict.

In an era of growing temperance sentiment, such behavior faced increasing social hostility. In the late 1880s, a handful of venturesome localities attempted to tackle the problem by adopting pioneering narcotics prohibition laws similar to the D.C. Pharmacy Act. Among them was San Francisco, where the county medical society petitioned for narcotics legislation, deploring the "lamentable fact that opium smoking is becoming fearfully prevalent among certain classes of young men and women in our city."¹⁴ In 1889, the city supervisors enacted a comprehensive ordinance forbidding the sale of morphine, opium, and cocaine except by a doctor's prescription. Ironically, for a city that would later become a Mecca for '60s drug culture, the ordinance also specifically disallowed prescriptions for the purpose of satisfying "curiosity or to experience any of the sensations produced thereby."¹⁵

The ordinance was naturally attractive to physicians, since it gave them a monopoly on the dispensation of narcotics. However, it was opposed by pharmacists, who objected, not unreasonably, to the "undue hardship" it would pose to "the respectable portion of the community" in order to prevent "disreputable and criminal elements" from obtaining their drugs.¹⁶

With such opposition, enforcement of the ordinance proved spotty, and within a few years it was considered to be a dead letter. Comprehensive antinarcotics bills were also passed in Oregon (1887) and Montana (1889), two other states with a sizable Chinese opium-smoking minority, but these were the exceptions to the rule. Towards the end of the century, some states began to enact laws specifically against cocaine, beginning with Illinois and Colorado (1897). Still, at the national level, federal policy remained imperturbably laissez-faire, caveat emptor.

As the new century dawned, most Americans could legally obtain any drug with no more trouble than signing the poison register. Despite this, drug abuse was hardly a raging problem. By 1900, the use of opium had crested and begun to decline.¹⁷ Newspapers of the day gave far more attention to alcohol and the growing temperance movement than to narcotics. As for drug crime, that pervasive scourge of modern civilization, it was virtually nonexistent in the absence of modern drug control laws (aside from the occasional opium den bust).¹⁸ Despite their widespread availability, narcotics were such a minor issue in turn-of-the-century America that they rarely rate even a footnote in history texts.

Unlike alcohol prohibition, narcotics prohibition was not caused by any widespread public pressure or political campaign. Rather, it was the work of government insiders, led by progressive-era professional groups and anti-opium missionaries, with crucial support from President Theodore Roosevelt. The push for national drug legislation was consistent with the broader progressive agenda, which favored aggressive federal government action for social and moral betterment.

While progressives were united in supporting food and drug purity laws, they were divided on the moral question of alcohol prohibition. Many were drinkers themselves and did not regard moderate alcohol use as intrinsically evil. Though a fearless champion of progressivism, President Roosevelt was politically cautious on prohibition, distrusting temperance extremists, preferring to leave the matter to the states. Like many Americans, Roosevelt was familiar with social drinking and comfortable with moderate, responsible use. Narcotics were another matter, however; outside of the despised opium dens, social use of narcotics was unknown, and no respectable Americans would admit to their use except for medical purposes. Public opposition to narcotics controls was therefore nearly nonexistent, clearing the way for the prohibitionists.

It was foreign affairs that proved the crucial factor in winning Roosevelt's support for narcotics prohibition. Fittingly, the scales were tipped by events in the Philippines, which had been captured by the U.S. at Roosevelt's initiative when he was assistant secretary of the Navy during the Spanish-American War.

In acquiring the Philippines, the U.S. also acquired an opium problem. The islands' Chinese minority was given to the habit of smoking opium, as were Chinese settlements throughout the world. For many years, this population had been supplied through a state-licensed opium monopoly under the Spanish colonial government. Four years after taking over the Philippines, the American colonial government of William Howard Taft proposed reviving the monopoly, which had been an important source of taxes to the Spanish administration.

Taft's plan met fierce resistance from local missionaries, led by Manila's Episcopal bishop, Charles Brent, who protested sanctioning the opium evil. In May 1903, Brent collaborated with fellow Christian prohibitionists from the International Reform Bureau, headquartered in Washington, D.C., to deluge the White House with telegrams against the opium licensing plan. Impressed by this showing of moral outrage, Roosevelt ordered Taft to withdraw the plan, and a committee was appointed for further study. The committee, under Bishop Brent's direction, recommended a policy of "progressive prohibition," in which opium would initially be limited to confirmed addicts for three years, then banned entirely. On March 3, 1905, Congress passed a bill directing the Philippine government to "prohibit absolutely the importation or sale of opium" except for medical purposes by March 1, 1908. In this act, Congress first explicitly embraced a policy of narcotics prohibition. Meanwhile, the pharmaceutical lobby had been brought around to the concept of prescription-only sales. In 1903, the American Pharmaceutical Association approved a model bill to ban nonmedical use of narcotics, including opiates, cocaine, and chloral hydrate. A revised version of the bill was adopted two years later by the National Wholesale Druggists Association, National Association of Retail Druggists, and the Proprietary Association of America.

In 1904, the first draft of the D.C. Pharmacy and Poisons Act was proposed to Congress. The bill encountered opposition in committee. Local druggists were of divided opinion. Some objected that self-destruction could not be stopped by law, and that mandatory prescriptions would pose an unfair burden on the poor. Others thought the law fully justified: "They can't make the law too stringent for me," one said. "It has been my rule since I went into business to refuse to sell morphine, cocaine or any of these drugs without a prescription."¹⁹ The bill died because of opposition from patent medicine manufacturers, who objected that it would unduly restrict low-potency medicines with small amounts of opium. When the bill returned the next year, the patent medicine industry dropped its opposition, having voluntarily lowered the potency of its products. The bill boasted support from the American Pharmaceutical Association, the National College of Pharmacy, the District Commissioners, and a conference of physicians and pharmacists.

There was no dispute about the basic intent or design of the bill. Advocates pointed out the need to restrict the cocaine habit. The sponsor, Rep. Joseph Babcock of Necedah, Wisc., invoked the ever-popular argumentum ad infantes, explaining, "I have come to my house, day and night, mothers, widows, and parents begging for some legislation that would prevent their children being able to buy cocaine. The cocaine habit has grown in Washington here in the last five years until it is a thousand times worse than the alcohol habit."²⁰ Rep. John Fitzgerald of Brooklyn expressed qualms that the bill's fees might not cover its enforcement costs. Rep. Thetus Sims of Tennessee pertly replied that if additional appropriations were required to "stop the wholesale poisoning and the making of lunatics and maniacs in this District," then so be it.²¹ The bill passed with no discussion of whether its provisions might actually realize its goals, or whether there might be possible adverse effects from prohibition.

The press did not mention the bill's passage. However, just two months later the Washington Post reported troubles enforcing the law:

"It has been a truism so trite as to be outlawed that prohibition never prohibits. . . . The same rule applies for the cocaine fiend. . . . [The laws] are broken continually in the city. In spite of the vigilance of the police, the dope fiends who have the requisite money can obtain supplies of the drug. Victims of this habit — among whom are frequently the panderers to the vice — are most secretive and cunning. No subterfuge is too base for either buyer or seller, nor is any trouble too great to take, provided it result in satisfaction to both sides, one getting the money and the other the poison. . . . The immoral women of the town, among whom the habit is strongly prevalent, are responsible for the distribution of much of the poison in the city. They make trips to Baltimore and Alexandria, and lay in a stock of poisons for themselves and their friends."²²

Nonetheless, by this time the nation was firmly committed to a policy of drug prohibition. Other states quickly followed the District's example. By the time the Harrison Act was passed, more than 30 states had already enacted comprehensive antinarcotics laws.

Thus, the war on drugs began at the local level. State pharmacy boards pioneered the tactics of today's drug police state. Pharmacy boards sent out agents posing as addicts to try to wheedle drugs from unsuspecting pharmacists, then busted them, publicizing arrests in the local press. Drug agents swept down on Chinatowns, cleaning out the dens and burning their opium and paraphernalia in public bonfires.

While arrests soared, the problem persisted, leading authorities to seek further powers. Having first restricted only sales, legislators proceeded to outlaw possession as well. From that point on, America's drug users became a criminal class. Although it had initially been proposed that drug addicts be sent to state hospitals to be cured, funds for treatment languished, so addicts were sent to prison instead. As time progressed, penalties became increasingly harsher. While early laws made sales a misdemeanor, later laws would make mere possession a felony.

Under the Harrison Act, effective in 1915, narcotics prohibition became federal law. This was done by placing a tax on narcotics prescriptions, allowing the U.S. Treasury to regulate and restrict their use. Before long, federal courts and prisons were flooded with thousands of physicians, pharmacists, and addicts charged with illegal prescription, sale, and possession of narcotics.²³ As the government cracked down on the pharmaceutical companies that had traditionally supplied narcotics, the traffic was pushed into the hands of illicit black-market suppliers, creating an enormous and lucrative new field of criminal enterprise. The Harrison Act was eventually supplanted by more sweeping legislation that extended and strengthened federal power over drugs. Under the Controlled Substances Act, passed in 1970 and still in effect today, prohibition was expanded to countless more substances, to the point where even Indian hemp, a common crop at the turn of the century, is no longer legal for agriculture or medical use, state laws to the contrary.

The year 1906 proved fateful on the international front as well. In Britain, a landslide victory by the Liberal Party brought the anti-opiumists to power, ending the longstanding dominance of imperialist free traders. In July, the Chinese government, encouraged by U.S. missionaries, announced its intent to crack down on opium smoking, removing previous doubts about the commitment of the Chinese.

Roosevelt sensed the opportunity to improve U.S. relations with China, which had been badly frayed by American anti-immigration laws. At the urging of Bishop Brent, he proposed an international conference on the opium trade be held in Shanghai. In 1909, the Shanghai Commission issued recommendations aimed at suppressing the opium trade, while Congress passed the Opium Exclusion Act, prohibiting the importation of smoking opium altogether.

There followed another international conference at The Hague in 1912, which established the first multinational treaty to limit international trade in opium and cocaine. This became the first in a long line of treaties that eventually culminated in today's international drug prohibition scheme, set forth in the Single Convention Treaty of 1961 and its sequels. Pursuant to these treaties, the entire world now lives under a regime of global prohibition, not only of opium, morphine, and cocaine, but also of cannabis, coca leaves, and almost every other hallucinogenic or psychoactive substance of interest to human consciousness (except for alcohol, nicotine, and caffeine).

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Looking back, the toll of the 1906 drug laws seems as fearsome as that of the great San Francisco earthquake itself. Over the past century, an entire criminal industry came to flourish; tens of millions were arrested for drug offenses; hundreds of billions of dollars were spent on drug enforcement; nearly half the U.S. population was implicated in drug crime; thousands were killed in drug war violence, and thousands more by overdoses from dangerous black market products.

But what about narcotics abuse — hasn't that abated?

The number of opium addicts in 1900 has been credibly estimated at around 200,000 to 400,000 — less than today's population of drug prisoners — or less than 0.5—1% of the adult population.²⁴ As of 2002, the number of Americans dependent on illicit drugs was estimated at 4,636,000, or over 1.5% of the population, according to the National Household Survey on Drug Use.²⁵

To be fair, this figure is likely overstated because it includes cannabis, but the bottom line seems to be that the total drug addiction rate has been relatively stable at around 0.5—1% over the last century. What has not been stable is the rate of drug criminality. In 2004, some 1,740,570 Americans were arrested, and a half million imprisoned, for drug offenses that simply did not exist a century ago. In short, the drug laws have served as a giant crime-creation program, turning what had been addicts' private health problems into a major public crime problem, accounting for nearly one quarter of all criminal offenses.

As the 21st century begins, it is well to consider how to undo the damage of 1906. In retrospect, it is hard to escape the conclusion that the 19th-century system — a free market supervised by labeling and registration under the poison laws — worked better than ours. A strong case can be made for ending the prohibition of nonmedical use of drugs and allowing their sale in pharmacies with appropriate informed consent. Before this can happen, however, Americans need to recognize the historical failure of prohibition, to understand that the best protection from dangerous drugs comes from their own personal responsibility, and to once again assert the right to freedom of choice in medication they had in the days of Jefferson and Mill.

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Chloral hydrate, a sedative that is still on the market, has long lost its status as a drug of abuse. This aptly illustrates the transitory, contingent status of drugs of abuse. Conversely, the DCPPA neglected to restrict heroin, which was originally sold as cough syrup, but is now illegal even in medical use.

BACK

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NOTES

1. "The Portable Thomas Jefferson," ed. Merrill D. Peterson (Penguin Books, 1980), p. 211.
2. J.S. Mill, "On Liberty," (W.W. Norton, 1975), p. 10.
3. Ibid., p. 83.
4. Samuel Hopkins Adams, "The Great American Fraud," Colliers, Oct. 7, 1905: http://www.mtn.org/quack/ephemera/oct7-01.htm.
5. John Phillips Street, "The Patent Medicine Situation," American Journal of Public Health 7 (1917), pp. 1037—42.
6. William Harbaugh, "Power and Responsibility: The Life and Times of Theodore Roosevelt" (Octagon Books, 1975) p. 247; Harvey Wiley, "An Autobiography" (Bobbs-Merrill, 1930), p. 225. Cited in Anthony Gaughan, "Harvey Wiley, Theodore Roosevelt, and the Federal Regulation of Food and Drugs," and in Peter Barton Hutt, "Food and Drug Law: An Electronic Book of Student Papers," Harvard Law School, Winter 2004: http://leda.law.harvard.edu/leda/data/654/Gaughan.html.
7. Wiley, p. 241. Cited in Gaughan, op. cit.
8. "Slaves of Cocaine: Its Use Growing Among the Lower Classes: No Law Curtailing Sale," Washington Post, Aug 29, 1905, p. 9.
9. Thanks to Jerry Mandel for the following references: H.C. Du Bose, "The Opium Memorial and the Imperial Edict," letter to the North China Herald, Sept. 28, 1906, p. 788; W.W. Rockhill, letters to the Secretary of State from the American Legation to China, #382 Aug. 29, 1906 and #393 Sept. 8, 1906 in "Papers Relating to Foreign Relations of the United States with Annual Message of the President transmitted to Congress," Department of State, GPO, 1909; and Arthur Smith, "The Uplift of China" (Board of Foreign Mission of the Presbyterian Church of the U.S., 1907), p. 215 fn 1.
10. Tabulation of drug laws in Ronald Hamowy, "Illicit Drugs and Government Control," in "Dealing With Drugs" (Lexington Books, 1987), pp. 10—11.
11. Mill, op.cit., pp. 89—90.
12. Joseph Spillane, "Cocaine: from Medical Marvel to Modern Menace in the United States, 1884—1920," Chap. 8 (]ohns Hopkins Press, 2000).
13. "Slaves of Cocaine: Its Use Growing Among the Lower Classes," Washington Post, Aug. 29, 1905, p. 9.
14. Pacific Medical and Surgical Journal Vol. XXIX (1886), p. 154.
15. General Orders of the Board of Supervisors, Order No. 2,085 "Concerning Cocaine, Morphine and Certain Substances, the use of which is injurious, and causes vice and crime." Board of Supervisors, July 18, 1889.
16. "Board of Supervisors: Druggists Oppose the Passage of the Cocaine Ordinance," S.F. Daily Alta Californian, May 14, 1889.
17. David Musto, "The American Disease: Origins of Narcotic Control" (Yale University Press, 1973), pp. 3—4.
18. Opium smuggling was also a sporadic problem due to the fact that the U.S. periodically imposed a stiff tariff on smoking opium. When the tariff waned, so did the smuggling. Jerry Mandel, "The Opening Shots of the War on Drugs," Chap. 9 in "How to Legalize Drugs," ed. Jefferson Fish (Jason Aronson, Inc., 1998).
19. "Stop Sale of Poisons: Druggists Discuss the Proposed District Law," Washington Post, Aug 5, 1904, p. 12.
20. Congressional Record, Feb 12, 1906, p. 2437.
21. Ibid., p. 2438.
22. "How the Washington Dope Fiend Satisfies his Desire for the Drug," Washington Post, July 1, 1906, p. SM10.
23. In the first year of the Harrison Act, over 23,700 violations were recorded, with 663 convictions; ten years later, the number of violations had declined by a half, but convictions had soared to 5,000 per year. Annual Reports of the National Commissioner of Internal Revenue and the Commissioner of Prohibition (courtesy of Jerry Mandel).
24. Musto, op.cit., pp. 4—6, 253—4.
25. http://www.oas.samhsa.gov/nhsda/2k2nsduh/Sect5peTabs1to12.pdf.

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