By Jeremy Daw
January 8, 2014
When you look at the facts, it’s clear that racism governs American drug policy. While five times as many white people as black people report using illicite drugs, the U.S. criminal justice system sends blacks to prison for drug offenses at 10 times the rate of whites according to the ACLU.
Unfortunately, racism is nothing new when it comes to substance regulation; it defines the U.S. drug policy paradigm going back almost a century.
Even before alcohol prohibition, the development of the 1914 Harrison Narcotic Act (the first federal law in American history to criminalize the sale of drugs, which in this case was opiates) stemmed from the hatred and oppression of ethnic minority groups by white elites. The Act resulted from the brewing of a perfect political storm.
A massive worldwide recession had left job markets reeling and the first rumblings of the Great War in Europe increased xenophobia at home. Chinese immigrants in particular had flocked to western states to help build infrastructure. The completion of the Transcontinental Railroad left many Chinese-Americans in search of other work in a rapidly shrinking job market, and racial tensions were strained to breaking.
Racism Erupts In Canada
The first major incident of racial tensions flared up not in the U.S., but just across the northern border. In September 1907, a group of white supremacists in Vancouver, Canada formed a nasty rally against competition with Asian immigrant laborors, under the banner of the “Asiatic Exclusion League [3].” After a vigorous protest on the steps of City Hall, the angry mob attacked Chinatown, causing multiple injuries and massive property damage.
The fallout was so severe the Canadian government was forced to dispatch William Lyon MacKenzie King, (a savvy politician who would later become Canadian Prime Minister) to investigate the incident. King immediately launched a victim-blaming smear campaign [4]. In his report back to Ottawa he wrote that the Chinese residents had brought the violence on themselves due to the presence of two Chinese-run opium dens in the ransacked neighborhood, which he demonized in his report as “an industry so inimical to our national welfare.” King further recommended that Parliament “render impossible, save in so far as may be necessary for medicinal purposes, the continuance of such an industry.”
The report was a lie, but the lie prevailed. The following year, the Canadian parliament passed the Anti-Opium Act of 1908; and just as King recommended, the act drew a sharp distinction between the “medicinal purposes” of opium, which were allowed under the law, and all other reasons for using the drug, which were prohibited. The means of ingesting opium most favored by the white majority were redefined as “medical” use, while customs like smoking from a Chinese water pipe were banned.
While King’s report was full of lies, distortions and bigotry, the central pillar of its proposals have not only survived, but have thrived for more than 100 years. King’s report laid the groundwork for a distinction which made no medical difference (at first) but created drastic results on the streets by criminalizing a substance for all but one segement of the population.
Racist Drug Policies Trickle Into U.S.
The U.S. took a strikingly parallel approach six years later. The Harrison Act introduced the very same medical/recreational dichotomy to federal drug policy.
Drugs with single active ingredients, like morphine, were protected, as were the middle-class patients who used them. Drugs with uncertain chemistry, like opium resin, were targeted, as were their mostly ethnic users. The dichotomy of medical vs. recreational drugs survived the repeal of the Harrison Act in the U.S. and still underlies many of the principles of the Controlled Substances Act, to which all Americans are still subject today at the federal level. Its racist ramifications survive in the New Jim Crow policies that create mass incarceration of black men, which Michelle Alexander details in her bestselling book [5].
But the same dichotomy between medical and recreational drug use has also propelled some of the most dramatic drug policy reforms in modern U.S. history, which have brought about the return of cannabis as a medicine to sick patients in 20 states. So, while the concept of medicalization is racist in its roots, it is compassionate in its current conception.
“Medical marijuana” has had a long, storied run, and now, right at the moment of its redemption from bigoted beginnings, the concept of medicalization is about to face a new challenge: compettion with the legalization of recreational cannabis. Cannabis is legal in Colorado and Washington, with organizers in more and more states pushing to put legalization on the ballot. For better or worse, the entire U.S. cannabis industry is beginning to change—and overall U.S. drug policy along with it.
Shaking Up the Politics of Medicalization
When desperate patients afflicted with HIV began showing up at the door, Dennis Peron, “Brownie Mary” Rathbun and the other founders of the San Francisco Cannabis Buyer’s Club didn’t have the time or money to conduct FDA-approved trials. People were wasting away before their eyes, and they needed immediate aid. So Peron began selling sacks, Rathbun began baking brownies, and the West Coast dispensary system began to take shape.
California Attorney General Dan Lundgren, upon deciding that Peron’s operation was anything but medical, reacted harshly. According to journalist Michael Simmons, “a hundred armed state Bureau of Narcotics agents, under the direction of [Lundgren], raided and shut down [6] Peron’s San Francisco Cannabis Buyer’s Club. Agents hauled away 150 pounds of pot, $60,000 in cash, 400 plants, computers, client records and, most outrageously, Prop 215 campaign materials.” But, as Simmons’ account reveals, the operation of Lundgren’s undoing — the historic Proposition 215 — was already well underway.
With its passage in 1996, Prop 215 drew new battle lines in the American culture wars. As University of Colorado sociology professor Michelle Newhart explains, “because the medicinal use of cannabis remains controversial and competes with recreational definitions, patients often must decide how to navigate marijuana’s cultural associations.”
The victory of the nation’s first tractable medical marijuana law recast the process of medicalization as a political act: to avail themselves of the healing power of cannabis, patients had to switch their countercultural allegiance. Few developments could have been more disastrous for the drug warriors; for many suffering patients throughout the state and nation, there was never any real choice except to radicalize. The inflexible strictures of federal law spawned a political movement that took the country by storm.
In retrospect, the extreme politicization of medical marijuana, which occurred in the wake of Prop. 215, was probably the only development that could have brought the institutions of American medicine to the impossible contradiction they now face.
Joints and brownies became accepted as medicine in the absence of the kind of quality controls, testing and expensive FDA applications that have traditionally dominated the medical industry. For patients, this has been both a revelation and a revolution that exposes them to a low-cost alternative to an expensive pharmaceutical system. This has made a world of difference for the sickest patients with no other recourse, which is why it’s so important to realize that in no event could so-called medical marijuana, the likes of which were provided by Peron and Rathbun, ever have any chance of being approved by the medical laws of the U.S. federal government; those federal laws are rooted in century-old racial hatred, and continue to sort people by race today.
The Problem of ‘Known and Reproducible’ Chemistry
In one sense, the U.S. government legalized medical marijuana almost 30 years ago. In 1986 the DEA moved to reschedule dronabinol, a synthetic THC analogue better known by its trade name Marinol [7], from Schedule I to Schedule II under the federal Controlled Substance Act (in 1999 it was moved again, this time to Schedule III). The drug, delivered in a sesame oil substrate in an innocuous pill, is chemically identical to the THC found it marijuana plants. So why would it be legal to prescribe, while distributing herbal cannabis remains a felony?
Such was the rhetoric advanced by Jon Gettman in his petition to the DEA (denied in 2001 [8]) to reschedule herbal marijuana, and on its face the argument seems to make sense. But it misses one crucial distinction between Marinol and marijuana, which according to the logic of the century-old medical/recreational dichotomy—which still predominates policy debates— makes all the difference in the world.
In the court opinion which rejected Gettman’s argument [9], Judge Harry Edwards explained the rationale. In determining whether to grant the request to reschedule herbal cannabis, the DEA Administrator asked, as required by law, whether the drug had a “currently accepted medical use.” Thus the ghosts of Vancouver were exhumed. Because while any number of reform advocates could point to a friend or family member who had experienced therapeutic relief from marijuana in the form provided by Dennis Peron or Brownie Mary, the legacy of cultural discrimination cemented by century-old race riots has bequeathed a very specific definition for the word “medical” within the halls of Washington, D.C.
To be medical according to federal law, a substance must be proven safe and efficacious through adequate studies, accepted by qualified experts, and according to published information which is widely available. Marijuana could arguably pass all four of these tests, but the fifth requirement stacks the deck irredeemably: to be approved for prescription purposes, a “drug’s chemistry must be known and reproducible.” It is a principle which fits neatly into the legacy of the culture wars between white settlers injecting pure morphine—a known and reproducible chemistry—in their veins, as opposed to the botanical uncertainty of the opium resin smoked by Chinese immigrants. And it is also test which herbal marijuana will probably never pass.
As ruthlessly as the law came down on opium resin in the early 20th century, the situation is even more hopeless for cannabis today —and ironically, it’s the incredible medical potential of marijuana [10] which dooms it under present paradigms.
As Ethan Russo, an authority on the therapeutic applications of cannabis, recently said [11], “Cannabis is the single most versatile herbal remedy, and the most useful plant on Earth. No other single plant contains as wide a range of medically active herbal constituents.” At least 85 cannabinoids have been identified [12] in marijuana resin, yielding medical benefits all across the map. Scientists have not yet determined which of the unique compounds found in marijuana are responsible for which effects, or even whether the compounds work best together or separately.
In their book, Marihuana: The Forbidden Medicine, Lester Grinspoon and James Bakalar explain why this is a problem under the predominant recreational/medical paradigm:
“The term drug generally refers to a single synthetic chemical that has been developed and patented, usually by a pharmaceutical company. The sponsor submits an IND application to the Food and Drug Administration and begins testing… The research is expensive, and its cost is borne by the pharmaceutical company… [which] has seventeen years to recover its investment. Marihuana will probably never be approved by this process.”
That may be true of herbal cannabis, but a new raft of cannabis-derived medications are already poised to render the “dispensary” obsolete—at least on a federal level. The FDA has already approved clinical trials for Epidiolex [13], a new oral cannabis extract by GW Pharmaceuticals which features— surprise— a known and reproducible chemistry featuring a single active ingredient, the non-psychoactive phytocannabinoid Cannabidiol (CBD). This win for the British pharmaceutical giant follows on the heels of another approved trial for its product Sativex, which also delivers precisely titrated cannabinoids—only through an aerosol spray instead of liquid extract.
Under the logic swaying the FDA, these drugs (and the high pricetags that accompany them) will be disseminated through doctors’ offices long before herbal cannabis is ever legalized nationally. The old Vancouver model, privileging expensive and precise synthetics and extracts over the herbal remedies favored by immigrant cultures, still affects the medical options of needy patients today.
