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Making a silk purse out of cantaloupe plant: criminalization of racial based marijuana laws

On Behalf of | Sep 19, 2015 | Firm News

Middle-class kids don’t get locked up for smoking pot, and poor kids do . . . .  African-American kids and Latino kids are more likely to be poor and less likely to have the resources and support to avoid unduly harsh penalties.  President Obama, David Remnick, Going the Distance, NEW YORKER, Jan. 27, 2014, at 52.

“. . . we have our doubts that imprisonment is an appropriate treatment for a marijuana habit.”

Judge Posner, United States v. Jesse A. Smith, No. 14-2223 (7th Cir. Decided Oct. 27, 2014) slip at 5.

Should laws that were created to discriminate against a group of people be enforced?

The truth is that our perceptions of marijuana—and in fact all of our drug laws—are based on early 20th century racism and “science” circa the Jim Crow era. In the early decades of the 20th century, the drug was linked to Mexican immigrants and black jazzmen, who were seen as potentially dangerous.

Harry Anslinger, a former railroad cop and Prohibition agent who was the first commissioner of the Federal Bureau of Narcotics (an early predecessor of the DEA), was one of the driving forces behind pot prohibition.  The devil weed and Harry Anslinger, Common Sense for Drug Policy,  He pushed it for explicitly racist reasons, saying, “Reefer makes darkies think they’re as good as white men.” Kyle Schmidlin, ‘War On Drugs’ Merely Fights The Symptoms Of A Faulty System, CBS News (Sept. 13, 2008)

Likewise, Mr. Anslinger testified before a Senate Hearing on marijuana tax in 1937 (Marijuana Tax Act, Pub. L. No. 75-238, ch. 553, 50 Stat. 551 (1937) (repealed 1969)) that “There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”  United States: A Stain On Our Integrity (Harry J. Anslinger and the Marijuana Tax Stamp Act of 1937)  The main reason to prohibit marijuana, he said was “its effect on the degenerate races.”  Id.  See also, Amanda Reiman75 Years of Racial Control: Happy Birthday Marijuana Prohibition, (Sept. 28, 2012)

Other research indicates that the desire to criminalize marijuana in the 1930s by connecting marijuana use to poor Mexican and black workers. Sam Kamin, The Challenges of Marijuana Law Reform, in ASPATORE SPECIAL REPORT, THE IMPACT OF THE DECRIMINALIZATION AND LEGALIZATION OF MARIJUANA 5, 22 (Melanie Zimmerman ed., 2010).  Two scholars succinctly explain that  “since [marihuana’s] users— Mexicans, West Indians, blacks, and underworld whites—were associated in the public mind with crime, particularly of a violent nature, the association applied also to marihuana.”  RICHARD J. BONNIE & CHARLES H. WHITEBREAD, II, THE MARIHUANA CONVICTION: A HISTORY OF the federal Ways and Means Committee marijuana hearings also focused on the use of marijuana by Mexican immigrants.  During the hearings, Harry Anslinger, the Commissioner of the Federal Bureau of Narcotics, read aloud a letter from a Colorado newspaper editor referencing the violent effects he believed marijuana had on what he called the state’s “degenerate Spanish-speaking residents.”  See DAVID E. NEWTON, MARIJUANA: A REFERENCE HANDBOOK 163 (2013) (quoting Harry Anslinger’s writings)

This racial fear mongering of the past in the name of marijuana prohibition has not subsided in America.  For example, Rep. Steve King, Republican of Iowa, when discussing comprehensive immigration reform said “hundred[s]” of immigrant children with “calves the size of cantaloupes [from] hauling 75 pounds of marijuana across the desert.”  Juliet Lapidos, Steve King Still Stands by ‘Cantaloupe’ Comments, N.Y. TIMES, Aug. 12, 2013,

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