Mike Jay (2002), Legalisation: The First Hundred Years. What happened when drugs were legal and why they were prohibited. Lecture presented at a conference in London, July 17th 2002, organized by the Institute for Public Policy Research (IPPR) about 'Legalization' in their conference series on drug policy.
© Copyright 2002 Mike Jay. Reprinted with permission from IPPR and Mike Jay.
Legalisation: The First Hundred Years
What happened when drugs were legal and why they were prohibited
Today, as the notion of legalising drugs is making its way into the mainstream political agenda for the first time in living memory, one of the most common objections to it is that it represents a high-risk experiment whose outcome cannot be accurately modelled or predicted. Yet within the context of history, the opposite is true: it is the prohibition of drugs which is the bold experiment without precedent. A hundred years ago, any of us could have walked into our high street chemist and bought cannabis or cocaine, morphine or heroin over the counter. At this point, mind-altering drugs had been freely available throughout history and across almost every culture, and their prohibition, pressed forward largely by the goal of eliminating alcohol from modern societies, was a radical break with the traditional wisdom of public policy.
Nor was it the case that the prohibition of drugs was a response to their sudden emergence in Western societies. In 1800, virtually the only drugs familiar to the West were alcohol and opium; but by 1900, the constellation of substances which form the modern category of illicit drugs - opiates, cannabis, cocaine, stimulants and psychedelics - had all found their niches within a consumer culture driven by scientific discovery and the expansion of global trade. The nineteenth century, typically regarded as an era of repression, moral probity and social control, could also be billed as 'Drug Legalisation - The First Hundred Years' (Jay 2000).
There is much which today's policy makers can learn from this era. Not only were most of the policies now being debated - statutory control and regulation, medical supervision and legal exclusion - all pioneered with varying degrees of success, but the legal availability of drugs offers a glimpse of how the general public originally negotiated their benefits and dangers, and how the various substances found their own levels within the society at large. History, of course, has its limits: it cannot tell us everything, and cannot be expected to repeat itself exactly. Cannabis, for example, was legal throughout the nineteenth century, and its levels of use remained for various reasons quite low: if it were legalised tomorrow, we would hardly expect its prevalence to fall to nineteenth-century levels. But history nevertheless illuminates many of the underlying dynamics in the modern drug debate, not least by offering the possibility of distinguishing between the consequences of drugs themselves and those which only followed once their use had been prohibited.
Perhaps the most significant difference was that today's prime distinction between 'medicinal' and 'recreational' drugs was, in a society without illicit drugs, at best embryonic. Opiate and cocaine preparations, like alcohol and tobacco, were both intoxicant and medicine, and the distinction between 'use' and 'abuse', 'feeling good' and 'feeling better' was vague and subject to medical and social fashion (Berridge & Edwards 1987). Today's Class A substances were not typically understood as drugs of 'abuse' but as tonics, pick-me-ups or mild sedatives, medicines 'for the nerves' inhabiting a middle ground perhaps similar to that occupied today by health supplements, over-the-counter stimulants or energy drinks. This was not because they were only available in mild preparations like opium tinctures and coca teas: even in the late nineteenth century, when pure cocaine and injectable morphine were readily available, the great majority of the public chose to continue consuming these drugs in dilute and manageable preparations.
Even in this era of mild plant and patent preparations, though, there was a clear need for some types of statutory drug controls. Until the 1860s, the market was unregulated: anyone could sell any substance to anyone, and make whatever claims they wished for it. Although most doctors were not overly preoccupied with the dangers of opiate addiction - which was typically seen as a marginal side-effect of the most effective medicine in their pharmacopeia - accidental poisonings and overdoses were a risk which was clearly exacerbated by preparations which labelled their contents inaccurately or not at all. The emergent pharmacy profession began to lobby for control of the sale of such substances, and in 1868 the Poisons and Pharmacy Act was passed. This limited the sale of arsenic, cyanide and opium, previously sold everywhere from grocers' to pubs, to registered pharmacists; the pharmacists, in turn, were obliged to record details of their sales (date, quantity and purchaser).
In retrospect, this initial level of statutory regulation was perhaps the most effective public policy initiative of the era. Public confidence in the drug business rose, and misuse fell. Deaths by accidental overdose, suicide or poisoning remained steady from the 1870s to the 1900s at less than 200 a year in Britain - a figure which today's doctors would gladly trade for the thousands associated with modern prescription drugs (Parssinen 1983). The combination of reliable health information and traceable sales provoked a modest public reaction against opiate drugs, the first indication that a population presented with a credible assessment of the dangers of drug use will to some extent regulate their use on their own initiative (Musto 1973).
But there were two initially unrelated dynamics in nineteenth-century culture which would, by the end of the century, have dovetailed to put the outright prohibition of drugs on the political agenda. The first was a growing set of racial anxieties at the prospect of a multicultural society; the second was the extension of medical science into the notion that drug addiction, and by extension all drug use, was a disease which needed to be addressed under medical supervision.
It was the racial anxieties which bit first. In 1874, the Opium Exclusion Act passed in San Francisco became the first drug prohibition in the modern West: but this was a prohibition to the Chinese population only. It was represented as being for the immigrants' own good as well as for the protection of the whites who might be contaminated by the foreign habit, but the most obvious driving force was the fear of miscegenation between Chinese and whites in the informal and disinhibited surroundings of Chinatown opium dens (Kohn 1987). Around the same time, the political mood in Britain was turning against the imperial adventures of the Opium Wars, and images of a China 'enslaved' by addiction to British opium became prevalent through the reports of missionaries and campaigning journalists. Although these images have subsequently been shown to have been greatly exaggerated (Newman 1995), they transformed the perception of opium from indigenous medicine to foreign poison, and anti-opium groups (including Quakers and Temperance activists) promulgated the fear that the growing Chinatowns in Britain might become breeding-grounds for the new 'plague' (Harding 1988).
Metaphors of 'plague' and 'contagion' were, simultaneously, being given new and literal force by a medical profession for whom the addictive qualities of opium, morphine and cocaine were becoming more significant. The development in the 1870s of the hypodermic syringe, and consequent wider use of potent alkaloidal extracts like morphine, fuelled medical concerns about unprecedentedly powerful and dangerous drugs being available to the general public. Opium users like Thomas de Quincey had long since pointed out that constant use of the drug led to serious physical cravings, tolerance of high doses and withdrawal symptoms (in opposition to much of the medical opinion of the 1820s, which saw these effects simply as over-indulgence or vice). But from the 1870s onwards the modern notion of addiction came to take shape, along with the still-familiar claim that this was a 'disease' which required specialist treatment by professionals (Harding 1988). This, particularly in the context of the contemporary 'degeneration theory' which proposed that indulgence in drugs could pass on hereditary disorders to the users' offspring (Pick 1989), gradually led to some doctors calling for all opiates to be prohibited to the general public without medical supervision.
There was an element of professional self-interest in all this: opium was the most common and effective remedy of its time, and the majority of the population understandably preferred self-medication with cheap patent pills and tinctures to paying doctors' fees. But there was also, in the new world of cocaine, morphine and needles, a pressing need for new medical advice and statutory controls: manufacturers' guarantees of strength and purity, professional guidance around the potentially hazardous issues of injection and dosage, and public information about the risks of addiction. Yet many medical voices went further, arguing for an outright ban with an urgency perhaps attributable to the fact that the largest group in the emerging addict population were medical professionals: from the 1870s to the 1920s, the profession's own surveys repeatedly suggested that around half of all addicts were doctors and their wives (Jay 2000). As the medical profession grew in expertise and stature, their calls for legal controls on opiates and cocaine became more authoritative. For the medical profession was not only becoming better organised to extend its remit into new arenas of public health - it was developing its new views against the background of a popular and influential Temperance movement.
Temperance had a diverse set of lobbying groups behind it - the church, the Women's Movement and, particularly in America, the moral high ground of politics - but at its core was an aspirational middle-class crusade to convert the alcohol-fuelled culture of the working classes to civic responsibilities, Christian virtues and 'moral hygiene' (Behr 1997). Most campaigners, doctors and churchmen alike, were united in their belief that alcohol was by far the most significant root of social evil, and the dangers of drugs like opium and cocaine were only stressed in the particular contexts where ethnic minorities lived cheek-by-jowl with the white working classes (Musto 1973). Nevertheless, the Temperance movement had the side-effect of carrying the drug debate in its wake. Medical diagnoses like 'opium inebrity' were coined, and the urge to indulge in any form of intoxication was classified as 'moral insanity', a condition whose ultimate recourse was confinement in an asylum (Harding 1988). The public voices prepared to defend the traditional use of drugs were few, and the new medical taxonomy of drug use as a disease, and by extension a contagious 'plague', dovetailed with broader fears about miscegenation and racial contamination to produce a climate where, led by the United States, the League of Nations began around 1900 to agree on international measures to prohibit the non-medical use of opiates and cocaine.
The basic template for today's drug laws was hammered out at summits like the Hague Conference of 1911, and mostly passed into national law in the form of emergency wartime legislation like Britain's 1915 Defence of the Realm Act, later codified in the Dangerous Drugs Act of 1921 (Kohn 1987). The initial effect most noticeable to the general public was that the range of preparations available over the chemist's counter - long-time staples like cannabis, opium or coca tinctures, as well as recently-developed brand medicines like Bayer Pharmaceuticals' new cough treatment, 'Heroin' - were replaced with synthetic alternatives like codeine or ephedrine, alongside useful new palliatives like aspirin. Despite their universal availability, the problematic use of the newly illicit drugs was little higher at this point than it had been a generation before (Parssinen 1983), and the prohibition initially led only to a limited and regional illegal traffic in pure and concentrated substances like morphine, cocaine and heroin (Musto 1973). The pressing drug issue of the day was the campaign for alcohol prohibition in America, which built up an irresistable head of steam until the 18th Amendment brought it into law, via the Volstead Act, in 1920.
Historically, there are clear examples of prohibitions which have worked. We only have to look around the world today to see that drugs which are prevalent in some countries have been prevented from gaining a foothold in other similar ones by legal exclusion. But the common denominator of successful prohibitions is that they have nipped a drug habit in the bud, interdicting supply before demand has been established (Courtwright 2001). Once demand is present, the financial arbitrage presented to suppliers will always be a more powerful driver than government tools for interdiction and enforcement. Counter-examples are rare - the Japanese success in curtailing amphetamine use in the 1950s is perhaps the best - and American prohibition was not among them. Alcohol use was too widely established across the social spectrum to halt an illicit traffic which began on the day the law was passed and which proceeded, through financial muscle and the corruption of public officials, to develop a vast shadow economy which in its centres like Chicago came virtually to amount to an alternative government.
The collapse of the American experiment with prohibition in 1932 left America both internally ravaged by organised crime and corruption and externally isolated from the rest of the world which had balked at following its lead, and it was in this climate that much of today's drug legislation was assembled, driven through League of Nations Conferences and Geneva Conventions mostly by American initiatives (Davenport-Hines 2001). There were many interest groups in America who had much to gain by switching the focus from alcohol to drugs, and from rebranding traditional medicines as 'new menaces'. The US Narcotics Bureau needed to shake off the stigma which attached to the Alcohol Bureau by showing that their new quarry was a genuine enemy, far more dangerous than alcohol, and that this time their goal was one which every citizen should support and respect. Medical opinion, too, was keen to backtrack from the less-than-credible excesses of their anti-alcohol warnings and to reverse the nineteenth-century consensus by insisting that substances such as cannabis were, in fact, more dangerous than alcohol. The press and other media, too, found their readers and listeners eager to believe that drugs might be the slippery slope to hell which had been claimed of alcohol a generation before. Drugs were still prominently linked with ethnic minorities, and new anxieties led to the 'anti-narcotic' laws being extended to control the sale of new substances such as cannabis, associated with the Mexican immigrant population, which had previously been assessed (by a British Royal Commission among others) as a minor public health issue.
The new legislation left a picture almost unrecognisable from the one which had existed before prohibition. The thrust of the original drug prohibitions - to protect the majority white population from the habits of ethnic minorities - failed to stem demand as drugs flowed through the emerging multicultural societies in much the same way as other culturally specific tropes like fashion, music or food (Shapiro 1999). Medically, new and serious problems emerged. The mild patent preparations, which had proved the most popular forms of the now-illicit drugs, had vanished: now opiates and cocaine were provided by illicit traffickers only in their most concentrated, lucrative and dangerous forms. The health costs of drugs increased in other ways, as risky procedures like injection moved away from the ambit of doctors and chemists and into more dangerous and unhygenic areas situated specifically beyond the reach of the law. Criminal organisations, many with their origins in alcohol prohibition, filled the vacuum left by patent and pharmaceutical companies, enforcing their illicit trade with violence. Drugs were not without their problems before prohibition, but the majority of the problems associated with them today only emerged fully under the legislation of the twentieth century.
These problems may have been produced by prohibition but, although many of them would not survive long without it, they cannot all be expected to vanish overnight with its repeal. The last century of public policy has transformed our traditional relationship with drugs into something new and uniquely problematic, for which history offers no tailor-made solution. It does, however, offer a reminder that the drug which presents the most obvious public health problems is alcohol, and that although alcohol policy remains highly problematic it has broadly proved to be best tackled not with prohibition but with socialisation under an umbrella of statutory regulation and education. History offers, too, an illustration of how a society legally permeated by today's illicit drugs used to function, and shows that high levels of overall drug prevalence can coexist with low levels of problematic use. Finally, if offers a chance to evaluate the tools of control and regulation which might form an alternative to our present policy and which, once an outright ban has failed to prevent availability of any drug, have historically proved the most effective response.
Mike Jay is a journalist and author of several books, among which Emperors of Dreams: Drugs in the Nineteenth Century (Deadalus 2001).
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Last update: May 25, 2016