The most important period of the War on Drugs may not have been the 1970s, when President Richard Nixon declared war and Congress passed the Controlled Substances Act, or even the early 20th century, when lawmakers approved new taxes and regulations that effectively banned the distribution of drugs for recreational use.
Instead, historian Kathleen Friedl argues that the most important moments may have occurred between the 1940s and 1970s, when lawmakers began to shift the war on drugs from a taxation and regulation model to a criminalization approach.
In the book «The Drug Wars in America, 1940-1973» Friedl argues that politicians of the period intensified their anti-drug efforts as a means of consolidating government power — both to legitimize increased police power at home and to justify more international incursions abroad. The BB Project team sat down with Friedl to discuss her book, the war on drugs, and what we can expect from future drug policy.
Instead, historian Kathleen Friedl argues that the most important moments may have occurred between the 1940s and 1970s, when lawmakers began to shift the war on drugs from a taxation and regulation model to a criminalization approach.
In the book «The Drug Wars in America, 1940-1973» Friedl argues that politicians of the period intensified their anti-drug efforts as a means of consolidating government power — both to legitimize increased police power at home and to justify more international incursions abroad. The BB Project team sat down with Friedl to discuss her book, the war on drugs, and what we can expect from future drug policy.
According to Kathleen Friedl, much of the literature treats the war on drugs as either a race and class agenda or treats the war on drugs as a response to modernity and the disorder it creates. He disagrees with neither line of argument, but thinks both overlook the «how». How did the state move from regulating drugs through a fiscal regime — taxes and tariffs — to criminal penalties and a prohibitionist regime?
The history part actually complements both arguments: the race and class argument and the struggle to cope with modernity. This new layer and frame of reference is that of the state and how the state made choices about the management of its power at the dawn of America's global dominance. How the state made choices about the management of its power has proven to be as important to the formulation of the modern war on drugs as race, class, and modernity.
-> Your book focuses a lot on how the state — the government —tested many of these approaches to drug control in the District of Columbia. Was D.C. considered as a kind of starting point at that time?
Kathleen Friedl: D.C. has been the testing ground for some of the most acrimonious and controversial aspects of the modern war on drugs. There were specific tools — mandatory minimum sentences, warrantless searches, and asset forfeiture — that were first tested in the District before they were exported to the drug program.
The history part actually complements both arguments: the race and class argument and the struggle to cope with modernity. This new layer and frame of reference is that of the state and how the state made choices about the management of its power at the dawn of America's global dominance. How the state made choices about the management of its power has proven to be as important to the formulation of the modern war on drugs as race, class, and modernity.
-> Your book focuses a lot on how the state — the government —tested many of these approaches to drug control in the District of Columbia. Was D.C. considered as a kind of starting point at that time?
Kathleen Friedl: D.C. has been the testing ground for some of the most acrimonious and controversial aspects of the modern war on drugs. There were specific tools — mandatory minimum sentences, warrantless searches, and asset forfeiture — that were first tested in the District before they were exported to the drug program.
This is no accident. There are two important reasons why it happened. First, the District had no self-government; the District had no authority to govern itself, so if Congress wanted to impose these tools and knew they were controversial, the District was the perfect place to do it. Second, the fact that the District of Columbia was a predominantly black city at the time was associated in the minds of legislators and in the minds of most Americans with the target audience against whom these tools would be used — and in fact it is even today.
-> Was D.C. a particularly violent city at the time? I think that could be used as an excuse.
Kathleen Friedl: That's a complicated question. I'll give you the straight answer and then add a layer.
The straight answer is no, it was not a particularly violent city. Despite attempts by Southern congressmen to portray it as a city on the edge of the abyss, where white girls were raped just for going out after dusk, the crime rate in D.C. for most of the 1950s was historically low. Up until the mid-1960s, D.C.'s crime rate was comparable to other major cities — and, in fact, usually lower.
Southern congressmen were very careful in their portrayal because they postulated and created an image of black crime that they believed was a counterpoint to the image promoted by the Civil Rights Movement.
However, there is another layer here. Until the 1950s, police did not visit black neighborhoods, especially poor black neighborhoods, to offer police services. The police «pocketed» crimes that occurred in black neighborhoods, that is, they did not report them as such. Thus, we can't seriously know what the actual crime rate was in these neighborhoods until the late 1960s because the police didn't provide police services as actively as they did in other parts of the city.
So, it's an interesting question: what effect would it have had on crime rates if the police had been more scrupulous in recording crime in these neighborhoods?
-> How did the situation start to change?
Kathleen Friedl: The police first started offering services in these neighborhoods in the 1950s. In that, they considered themselves progressives and considered themselves a larger component of the police professionalization movement that was going on at the time.
But the way they infiltrated these neighborhoods, with aggressive use of force and high levels of corruption, shocked the residents as much as the crime they suffered.
So it was a very ambivalent and double-edged moment: the police saw themselves as more progressive than what had gone before them, but these neighborhoods, which very much wanted police services, nevertheless saw the police as actors who sometimes could not be meaningfully separated from the criminals.
-> Was D.C. a particularly violent city at the time? I think that could be used as an excuse.
Kathleen Friedl: That's a complicated question. I'll give you the straight answer and then add a layer.
The straight answer is no, it was not a particularly violent city. Despite attempts by Southern congressmen to portray it as a city on the edge of the abyss, where white girls were raped just for going out after dusk, the crime rate in D.C. for most of the 1950s was historically low. Up until the mid-1960s, D.C.'s crime rate was comparable to other major cities — and, in fact, usually lower.
Southern congressmen were very careful in their portrayal because they postulated and created an image of black crime that they believed was a counterpoint to the image promoted by the Civil Rights Movement.
However, there is another layer here. Until the 1950s, police did not visit black neighborhoods, especially poor black neighborhoods, to offer police services. The police «pocketed» crimes that occurred in black neighborhoods, that is, they did not report them as such. Thus, we can't seriously know what the actual crime rate was in these neighborhoods until the late 1960s because the police didn't provide police services as actively as they did in other parts of the city.
So, it's an interesting question: what effect would it have had on crime rates if the police had been more scrupulous in recording crime in these neighborhoods?
-> How did the situation start to change?
Kathleen Friedl: The police first started offering services in these neighborhoods in the 1950s. In that, they considered themselves progressives and considered themselves a larger component of the police professionalization movement that was going on at the time.
But the way they infiltrated these neighborhoods, with aggressive use of force and high levels of corruption, shocked the residents as much as the crime they suffered.
So it was a very ambivalent and double-edged moment: the police saw themselves as more progressive than what had gone before them, but these neighborhoods, which very much wanted police services, nevertheless saw the police as actors who sometimes could not be meaningfully separated from the criminals.
-> Much of the book focuses on the transition from a tax and regulation model to outright criminalization. How did this process take place?
Kathleen Friedl: It happened gradually.
First of all, the government tightened the policy of criminalizing the tax regime. This was attempted in the early 1950s using the District of Columbia again as a sort of experimental site, and then later exported to the drug regime. During this period, mandatory minimum sentencing first appeared.
Then in 1956 heroin was declared contraband. Prior to that, heroin was considered a drug and was talked about as a medicine. It was not widely distributed as a medicine because the sources of heroin had dried up since the 1920s. Still, it was kept in pharmacists' offices, pharmacists' offices, and heroin was sometimes used in medical experiments when other types of cough remedies did not work.
In 1956, the government declared that heroin was now contraband. If you have it, you are in possession of contraband. This was another major step in the transition to criminalization.
It culminated in the transfer of the Bureau of Narcotics from the Treasury Department to the Justice Department. This is a clear institutional sign that something was moving from a taxation agenda to a criminalization agenda. This happened in 1968.
Kathleen Friedl: It happened gradually.
First of all, the government tightened the policy of criminalizing the tax regime. This was attempted in the early 1950s using the District of Columbia again as a sort of experimental site, and then later exported to the drug regime. During this period, mandatory minimum sentencing first appeared.
Then in 1956 heroin was declared contraband. Prior to that, heroin was considered a drug and was talked about as a medicine. It was not widely distributed as a medicine because the sources of heroin had dried up since the 1920s. Still, it was kept in pharmacists' offices, pharmacists' offices, and heroin was sometimes used in medical experiments when other types of cough remedies did not work.
In 1956, the government declared that heroin was now contraband. If you have it, you are in possession of contraband. This was another major step in the transition to criminalization.
It culminated in the transfer of the Bureau of Narcotics from the Treasury Department to the Justice Department. This is a clear institutional sign that something was moving from a taxation agenda to a criminalization agenda. This happened in 1968.
Equally important and coincident with all these changes was the refusal to add new synthetic drugs to the tax regime. In the 1950s, there was a huge problem with amphetamines and barbiturates, which claimed as many lives as any other drug. But Congress refused to add these drugs to the Harrison Drug Tax Act. It was a sign that they no longer wanted to sell drugs through taxes.
Finally, in 1970, with the passage of the Controlled Substances Act, we created the schedules. Schedule 1 drugs were illegal substances. This was really the culmination of 20 years of increased penalties, transfers to correctional facilities and everything else.
While other scholars of the war on drugs tend to see 1970 as the starting point, I see it as the end point for the two-decade history that preceded it.
-> How did this model of taxation and regulation work? I know some scholars characterize it as prohibition because it was very strict. Would you agree?
Kathleen Friedl: It was kind of a friendly disagreement between myself and other drug war researchers. Just because something is highly regulated, like oxycontin, and you can only use it for medical purposes, it seems to me that's a very different world than saying it's illegal. Nevertheless, we have a lot of scholars who insist that the Harrison Narcotics Act [of 1914] was actually prohibition.
Heroin certainly received the stigma of addiction in the 1920s and 1930s. But that stigma became an integral part of its broader reputation as a drug. People discussed it as a drug. Newspaper articles in the mid-1950s talked about soccer coaches who had to toughen up their teams by giving their players heroin so they could endure more pain. When people said "heroin" in the 1950s, they meant a drug that they knew was diverted to the illicit market and used for recreational purposes.
Finally, in 1970, with the passage of the Controlled Substances Act, we created the schedules. Schedule 1 drugs were illegal substances. This was really the culmination of 20 years of increased penalties, transfers to correctional facilities and everything else.
While other scholars of the war on drugs tend to see 1970 as the starting point, I see it as the end point for the two-decade history that preceded it.
-> How did this model of taxation and regulation work? I know some scholars characterize it as prohibition because it was very strict. Would you agree?
Kathleen Friedl: It was kind of a friendly disagreement between myself and other drug war researchers. Just because something is highly regulated, like oxycontin, and you can only use it for medical purposes, it seems to me that's a very different world than saying it's illegal. Nevertheless, we have a lot of scholars who insist that the Harrison Narcotics Act [of 1914] was actually prohibition.
Heroin certainly received the stigma of addiction in the 1920s and 1930s. But that stigma became an integral part of its broader reputation as a drug. People discussed it as a drug. Newspaper articles in the mid-1950s talked about soccer coaches who had to toughen up their teams by giving their players heroin so they could endure more pain. When people said "heroin" in the 1950s, they meant a drug that they knew was diverted to the illicit market and used for recreational purposes.
The tax regime was strictly controlled. Nevertheless, diversion to the illicit market took place — just as prescription painkillers are diverted today.
I think one of the most clumsy additions to the tax-and-tariff regime was the Marijuana Tax Act of 1937, which added marijuana to the list of taxed and regulated drugs because nobody could fully understand why marijuana was a medicine. Some people used marijuana as a medicine, but no one really thought of it as a medicine. Thus, the Marijuana Tax Act was a more obvious act in which the government had no intention of selling marijuana as a medicine, but had every intention of banning it and restricting its use until it was completely eradicated.
The Marijuana Tax Act was the very act on which the entire regime fell. In the late 1960s, Timothy Leary challenged the Marijuana Tax Act in the Supreme Court. He said: «How can I pay taxes for something that, by paying taxes, I compromise myself? Isn't that against my Fifth Amendment rights against self-incrimination?». The Supreme Court agreed with him and struck down the law.
I think one of the most clumsy additions to the tax-and-tariff regime was the Marijuana Tax Act of 1937, which added marijuana to the list of taxed and regulated drugs because nobody could fully understand why marijuana was a medicine. Some people used marijuana as a medicine, but no one really thought of it as a medicine. Thus, the Marijuana Tax Act was a more obvious act in which the government had no intention of selling marijuana as a medicine, but had every intention of banning it and restricting its use until it was completely eradicated.
The Marijuana Tax Act was the very act on which the entire regime fell. In the late 1960s, Timothy Leary challenged the Marijuana Tax Act in the Supreme Court. He said: «How can I pay taxes for something that, by paying taxes, I compromise myself? Isn't that against my Fifth Amendment rights against self-incrimination?». The Supreme Court agreed with him and struck down the law.
Interestingly, the Nixon administration interpreted the ruling as a violation of the entire drug regulatory structure in this country. In fact, the ruling should have applied only to the marijuana component, since it was the only component that never had a widespread medical purpose. Nevertheless, the Nixon administration seized on this and developed an entirely new approach, based on the Commerce Clause rather than the taxing power of the United States, and moved it into the criminal code.
-> So Congress refused to add new synthetic drugs like amphetamines and barbiturates to the tax model, but lawmakers also resisted including many of them in the criminal model. Wasn't it because they thought the drugs were medically valuable even though they killed so many people (and still do)?
Kathleen Friedl: Exactly. The pharmaceutical industry in this country has a lot to answer for. It's a non-trivial reason why we have a war on drugs. They invested heavily in amphetamines and barbiturates, and they took crucial steps in the 1950s and 1960s to ensure that abusers of these drugs would not be criminally penalized and, just as importantly, that there would be no restrictions on the production of these drugs.
Doctors at the time confirmed that amphetamines and barbiturates killed far more people than heroin. But heroin had a stigma and a stereotype about its typical user group, and we had a pharmaceutical industry that made tons of money off of amphetamines and barbiturates.
-> So Congress refused to add new synthetic drugs like amphetamines and barbiturates to the tax model, but lawmakers also resisted including many of them in the criminal model. Wasn't it because they thought the drugs were medically valuable even though they killed so many people (and still do)?
Kathleen Friedl: Exactly. The pharmaceutical industry in this country has a lot to answer for. It's a non-trivial reason why we have a war on drugs. They invested heavily in amphetamines and barbiturates, and they took crucial steps in the 1950s and 1960s to ensure that abusers of these drugs would not be criminally penalized and, just as importantly, that there would be no restrictions on the production of these drugs.
Doctors at the time confirmed that amphetamines and barbiturates killed far more people than heroin. But heroin had a stigma and a stereotype about its typical user group, and we had a pharmaceutical industry that made tons of money off of amphetamines and barbiturates.
Today they're making tons of money on synthetic drugs. And they resist regulation as much as they did then.
By the late 1950s, there were two important professional communities - legal and medical — that had begun to criticize the increased criminal penalties associated with the drug regulatory regime. This criticism led to the creation of the Kennedy Commission, which revised the entire structure.
There were also people in Congress who were voices, albeit lone voices, against the assault on civil liberties caused by the War on Drugs. Senator Wayne Morse opposed no-knock searches and mandatory minimum sentences. There was a succession of libertarian-minded members of Congress who believed that the war on drugs was attacking basic political and legal traditions.
-> Where do you think things are going now? Do you think the country is moving toward the model of taxation and regulation that we used to have?
Kathleen Friedl: Definitely with respect to marijuana, I see a more relaxed model where the country allows recreational use.
There are two things I'd like to see.
First, the President should ask the National Academy of Sciences or some other blue-ribbon commission to study alternatives to the ban and weigh, in a cost-benefit analysis, what the ban would bring in terms of taxes and levies vs.
Second, the international treaties supporting the war on drugs should be reformed so that legalization of substances named in the current conventions is not seen as a departure. Uruguay has run into some problems because it decided to legalize marijuana. I think this is ridiculous. We need to reform the conventions so that countries can chart their own course.
Those are two things that I would like to see as a reformer that I think will lead us to the day when the war on drugs is not just seen as a 100-year aberration, but as a 1,000-year aberration.
By the late 1950s, there were two important professional communities - legal and medical — that had begun to criticize the increased criminal penalties associated with the drug regulatory regime. This criticism led to the creation of the Kennedy Commission, which revised the entire structure.
There were also people in Congress who were voices, albeit lone voices, against the assault on civil liberties caused by the War on Drugs. Senator Wayne Morse opposed no-knock searches and mandatory minimum sentences. There was a succession of libertarian-minded members of Congress who believed that the war on drugs was attacking basic political and legal traditions.
-> Where do you think things are going now? Do you think the country is moving toward the model of taxation and regulation that we used to have?
Kathleen Friedl: Definitely with respect to marijuana, I see a more relaxed model where the country allows recreational use.
There are two things I'd like to see.
First, the President should ask the National Academy of Sciences or some other blue-ribbon commission to study alternatives to the ban and weigh, in a cost-benefit analysis, what the ban would bring in terms of taxes and levies vs.
Second, the international treaties supporting the war on drugs should be reformed so that legalization of substances named in the current conventions is not seen as a departure. Uruguay has run into some problems because it decided to legalize marijuana. I think this is ridiculous. We need to reform the conventions so that countries can chart their own course.
Those are two things that I would like to see as a reformer that I think will lead us to the day when the war on drugs is not just seen as a 100-year aberration, but as a 1,000-year aberration.