The Harrison Act

The very first criminal law at the Federal level in this country to criminalize the non-medical use of drugs came in 1914.  It was called the Harrison Act and there are only three things about the Harrison Act that we need to focus on today.

     Number one is the date.  Did you hear the date, 1914?  Some of you may have come this morning thinking that we have used the criminal law to deal with the non-medical use of drugs since the beginning of the Republic or something.  That is not true.  The entire experiment of using the criminal sanction to deal with the non-medical use of drugs really began in this country in 1914 with the Harrison Act.

     The second interesting thing about the Harrison Act was the drugs to which it applied, because it applied to almost none of the drugs we would be concerned about today.  The Harrison Act applied to opium, morphine and its various derivatives, and the derivatives of the coca leaf, like cocaine.  No mention anywhere there of amphetamines, barbiturates, marijuana, hashish, hallucinogenic drugs of any kind.  The Harrison Act applied only to opium, morphine and its various derivatives and derivatives of the coca leaf, like cocaine.

     The third and most interesting thing for you all as judges about the Harrison Act was its structure, because the structure of this law was very peculiar and became the model for every single piece of Federal legislation from 1914 right straight through 1969.  And what was that model?

     It was called the Harrison Tax Act.  You know, the drafters of the Harrison Act said very clearly on the floor of Congress what it was they wanted to achieve.  They had two goals.  They wanted to regulate the medical use of these drugs and they wanted to criminalize the non-medical use of these drugs.  They had one problem.  Look at the date -- 1914.  1914 was probably the high water mark of the constitutional doctrine we today call "states' rights" and, therefore, it was widely thought Congress did not have the power, number one, to regulate a particular profession, and number two, that Congress did not have the power to pass what was, and is still known, as a general criminal law.  That's why there were so few Federal Crimes until very recently.

     In the face of possible Constitutional opposition to what they wanted to do, the people in Congress who supported the Harrison Act came up with a novel idea.  That is, they would masquerade this whole thing as though it were a tax.  To show you how it worked, can I use some hypothetical figures to show you how this alleged tax worked?

     There were two taxes.  The first (and again, these figures aren't accurate, but, they will do to show the idea) tax was paid by doctors.  It was a dollar a year and the doctors, in exchange for paying that one dollar tax, got a stamp from the Government that allowed them to prescribe these drugs for their patients so long as they followed the regulations in the statute.  Do you see that by the payment of that one dollar tax, we have the doctors regulated?  The doctors have to follow the regulations in the statute.

     And there was a second tax (and again, these are hypothetical figures, but, they will show you how it worked) was a tax of a thousand dollars of every single non-medical exchange of every one of these drugs.  Well, since nobody was going to pay a thousand dollars in tax to exchange something which, in 1914, even in large quantities was worth about five dollars, the second tax wasn't a tax either, it was a criminal prohibition.  Now just to be sure you guys understand this, and I am sure you do, but just to make sure, let's say that in 1915 somebody was found, let's say, in possession of an ounce of cocaine out here on the street.  What would be the Federal crime?  Not possession of cocaine, or possession of a controlled substance.  What was the crime?  Tax evasion.

     And do you see what a wicked web that is going to be?  As a quick preview, where then are we going to put the law enforcement arm for the criminalization of drugs for over forty years -- in what department?  The Treasury Department.  Why, we are just out there collecting taxes, and I will show you how that works in a minute. 

     If you understand that taxing scheme then you understand why the national marijuana prohibition of 1937 was called the Marihuana Tax Act.

The Pure Food and Drug Act

The Early State Marijuana Laws

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