George Fisher: With the history, the whole history of drug and alcohol prohibition, always medical uses have been preserved in both the drug and alcohol realms. And it was only this one striking departure of putting all of cannabis use completely out of sight. And so, when states began to legalize medical cannabis use in the early 1990s–I think California’s 1994 law was the nation’s first, although I might be wrong by a year or two there–that simply returned us to the old historical status quo. So it wasn’t that revolutionary. 

Rich Ford: This is Stanford Legal. Where we look at the cases, questions, conflicts, and legal stories that affect us every day. I’m Rich Ford, please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all of our new episodes as soon as they’re available. Joining us today is George Fisher, one of the nation’s top scholars of criminal law and of evidence, and my colleague for many years here at Stanford Law School.

George is a former Massachusetts Attorney General and and he founded the Stanford Criminal Prosecution Clinic and has co-directed it for more than 25 years. George’s scholarship explores, through meticulous archival research, the history of the criminal law and criminal institutions, from prisons to juries, from plea bargaining to the regulation of alcohol and drugs, and his publications include an acclaimed casebook on evidence and the history of plea bargaining in America. Today, we’re going to talk about George’s latest book, which was just published in February. It’s about America’s war on drugs and intoxicants, and it’s called Beware Euphoria: The Moral Roots and Racial Myths of Today’s War on Drugs.

Welcome to the show, George. 

Fisher: Thank you, Richard. It’s so good of you to do this and, and very good what you and Pam do for all of us in giving attention to our work, which otherwise, as you know, often languishes in obscurity. 

Ford: Well, thank you. I think this book would definitely not languish in obscurity because it’s such a fascinating read. I know this book has been a real labor of love for you. You’ve worked on the topic for many, many years. Can you tell us what drove you to look into these issues? Why did you undertake this project? 

Fisher: You mentioned in your intro that I started out as a Massachusetts prosecutor, and back in those days, in the late 18–late 1980s and 1990s, early 1990s, drugs were at the center of everything in the criminal system.

There were drug prosecutions themselves, of course, which consumed an awful lot of our energy and a lot of the system’s energy. And then there were all the spinoff crimes, all of the theft-related crimes that people were addicted to drugs committed to generate the money to pay for those drugs. And it was hard to be inside the system and not to wonder what the system would be like without all of those drug-related prosecutions. And then to wonder how we got here and why we are, certainly then were, as a culture, so strongly and single-mindedly committed to suppressing the trade in drugs. I think there’s been some liberalization since. It’s been confined, but the storyline hasn’t changed dramatically, though it is, of course, shifting lately.

So, when I started teaching, began to write–especially began to write about the history of criminal institutions, prisons, and plea bargaining and such–what came next to mind was the history of banning drugs and how we did get to where we are today.

Ford: Yeah, I remember the war on drugs very clearly, you know, this is your brain with the egg, this is your brain on drugs, and they put the egg into a frying pan—the whole series of public service announcements against drugs, but also, of course, the quite aggressive law enforcement actions around the war on drugs. And, you know, there’s a common narrative today that mass incarceration was largely driven by the war on drugs and that the war on drugs was a result of racism. There’s kind of a famous quote by President Nixon’s aide, John Ehrlichman, who basically said, you know, we wanted to go after the hippies and Black people, so we tied the hippies to marijuana, we tied the Black people to heroin, and then we went after them. It’s as simple as that. What does your book tell us about that argument? And maybe you could just tell us a few of the key points in your research. 

Fisher: So the couple of points are important about that narrative that we have today about the drug war we are in. One thing I should say with regard to mass incarceration is that it is certainly substantially driven by drugs, but not as substantially as I think sometimes we think. It’s true that the federal prison system has about–almost 50 percent of its population are drug-related convicts– but the federal system is only about 10 percent of our prison system. In the states, the drug-related crimes account for fewer than 20 percent of the people who are actually imprisoned. Most of the people in prison in the United States today are in prison for crimes of violence. But that narrative becomes important today because it has largely prompted the unwinding of the old drug war, ever since Michelle Alexander’s book came out in 2010, The New Jim Crow, the focus on mass incarceration and the emphasis she gave to the racially disproportionate ways in which the drug laws are punished has been–those arguments have been enormously influential in beginning to break down support for the old war on drugs.

But the war on drugs itself is often mis-painted, often traced to the Nixon years. That quote you read of John Ehrlichman was certainly memorable, and no doubt that Nixon himself was virulently anti-drug and not, it was, it’s just, I think it’s not hard to argue that he was probably a racist too and those two things mingled in his mind. But as it actually works out, the drug laws took a dip in severity during the Nixon years. They had been more severe before and they became more severe after, but the drug war that I study in this book is not the Nixon drug war, not even the Rockefeller-Eisenhower drug war of the fifties, but the drug war of the late 19th century when the drug war really got underway and what drove the anti-drug laws in those days.

And the chief finding with regard to the modern narrative of the war on drugs is that it was not racial animus that drove the making of the early drug laws. That story turns out to be exactly wrong in the sense that the early anti-drug laws were laws about whites. They were written by white lawmakers, enforced by white police officers, and enforced against those who sold to whites, and especially to young whites and to white women. The driving force was to protect the moral integrity of respectable whites and especially youth and women. And it didn’t matter who were the sellers. If the sellers were Chinese den, opium den keepers and they sold to young whites they’d be prosecuted. But if whites opened opium dens and sold to young whites, they would be prosecuted.

The early laws against cocaine were largely directed against white pharmacists who were largely, at the time, the purveyors of cocaine in various nostrums. So it’s, it’s only, it really becomes a 20th century story when the drug war began to focus on people of color. That’s not so much the story I’m telling in this book because it was the roots of the drug war I was focused on, and those roots were earlier.

Ford: So that’s fascinating. In a sense, you might say, or correct me if I’m mischaracterizing you, but to the extent there’s racism involved in the early drug laws, it was that lawmakers didn’t care about the people of color. They cared about whites and the effect that drugs would have on corrupting white people.

So you could identify that, but it wasn’t, as our current narrative suggests, targeting people of color for enforcement. Quite the opposite. They didn’t care what happened with the people of color. 

Fisher: Yeah, you put that beautifully. The racism that was involved was the racism of indifference, the indifference to the moral welfare of people who weren’t white, and a commitment to protecting the moral welfare of those who were white, especially respectable whites.

And we see that most clearly in the early laws against opium dens. And the earliest of those was centered here in San Francisco, where I live, where you I believe are also living, and where the very first shot in the American war on drugs was fired in, in the year 1875 when the San Francisco Board of Supervisors enacted the country’s first ordinance against the opium dens, which is actually the country’s first law against any mind altering drug other than alcohol–the first law banning any mind altering drug other than alcohol. And that law was written in race neutral terms, but it was characterized in the press, and not just the San Francisco press, but the press across the country, as being the San Francisco ordinance against white people in opium dens. Then those were the words that were used. And not only in San Francisco, but when other anti-opium den laws were enacted in cities and states across the West, they were portrayed as laws barring white people from entering opium dens and barring white people from keeping opium dens, and the police very self consciously did not attack those opium dens that were kept by the Chinese for the use of Chinese patrons. The San Francisco police chief was quoted in the 1890s as saying, all we can do is to go after those opium dens that service whites. And we leave those dens that serve only the Chinese to themselves. And those are sentiments one can find expressed in Boston as well, all across the country, not that I’ve found evidence everywhere in between, but that sentiment was common to those areas that spoke about why they were legislating against opium dens.

Ford: So this was about protecting the moral purity of white people. What does your research tell us about why it is that mind-altering drugs, in particular, were seen as such a menace to the moral character of whites and why certain drugs and not others? I mean, in other words, why opium, later marijuana, but not alcohol, which is clearly also a powerful mind altering drug?

Fisher: Yeah. So two really important questions there. Why do mind altering drugs take on this moral valence? And then why not alcohol? And those are two questions on the back of my mind when I began this book. The moral lineage of the drug war, I believe, goes back to early Christian notions of the wrongfulness of non-procreative sex, and those notions actually trace back earlier too, but they were expressed in a very vivid and memorable way by the early Christian fathers who argue with regard to non-procreative sex, that the sin of such sex was in the way it robs us of our reason, our reason being the faculty that most links humans with God. We can see that almost in the way we’re built, our heads are up high, closest to the heavens. We look upon the gods, or look upon God, from a standpoint of our reason. And our reason, we try to erect as the emperor over the temptations of the lower parts of our body, certainly our sexual organs, but also our stomachs and the appetitive parts of our character.

And the notion was that sex was prototypically an instance in which the mind capitulates to the appetites of the lower members. And that notion was expressed in almost unaltered form a millennium and a half later when Puritan theorists began to argue about the wrongfulness of drunkenness. The same vision of capitulation to our appetite—of the appetite of parts of our being, the beastliness, the beastly parts of our being that come out and drive our reason into submission in the context of drunkenness. And then from there, it’s a very short step to imagining the moral denunciation of pleasure-inducing drugs. And it was pleasure, it was the sort of pleasure in particular that drove out reason that was prototypically deemed and thought immoral. 

There are many pleasures that are not purely appetitive that might be highly refined and we can have highly refined notions about dining and that are very different from the sheer appetite of, notion of, when we seek out pleasure for pleasure’s sake, even if it risks putting our minds into submission.

So the vision of early opium dens where people were portrayed in the press as smoking themselves senseless was exactly triggering to these old moral notions because the literal impact of opium was seen to be, to put people into unconsciousness, and there’s no more complete notion of the submission of reason than to be, to smoke oneself literally dumb in opium dens.

So that was the moral story.  I know it sounds pat and it sounds simplistic, but the striking thing is how thick the evidence is that these threads carry forth from the early Christian times in a more or less unbroken fashion to the times of the late 19th century when drugs first began to be banned. 

And then you asked about alcohol and why not alcohol? Well, I think the real answer is alcohol is forbidden as a drunkenness agent and approved only when – only when used in a non intoxicating way. There’s a mind game I mentioned at the beginning of the book where I think if we imagine the same drug we know today as alcohol, but now imagine that the only form of administration of that drug is a single swallow that carries the same punch as 10 shots of vodka. So that one could not drink without getting drunk. Would that drug have been legal all these years? And I think the answer to that is pretty clearly no. What makes alcohol different is it’s perceived differently as a drug that can be used in a non- intoxicating way. And then there’s a way that can serve lots of different goods, among them easing reasoned intellectual conversation, which is reason-enhancing, not reason-depriving. And then also as nourishing the body, being taken with meals, used as medicines. There are lots of perfectly appropriate lawful — these sacramental uses of alcohol — that are very far from inducing drunkenness.

Ford: So how does the story of prohibition fit into your history and its relationship to alcohol? So we have a period of time where we do ban alcohol, but then we later legalize it. 

Fisher: Yeah. And I think that the various times when we have, or when any element of Western culture has banned alcohol have all turned out to be quite anomalous. Periods of alcohol suppression, whether the English gin ban of 1736 or this almost contemporaneous ban of rum in Georgia, in the Savannah colony, at the same time where the later state prohibitions of the 19th century or the national prohibition of the 20th century, with few exceptions, all of these periods of prohibition have lasted a dozen years or less.

I think national prohibition may be squeaked into the 14-year realm from the beginning of 1920, just 13 years to the beginning of ’33, but it would have fallen much more quickly had it not been instantiated in the constitution and had it not required the constitutional supermajority to undo. And the lesson of all of those periods of prohibition is that the public quickly realizes that the law has outstripped public morality. And notions of public morality around drinking always were that the sin is in the excess and banning all use of alcohol simply is a step too far. So what happens in the aftermath of prohibition is actually more important than how we got there because what you see in the aftermath, and in the resurrection of alcohol, beginning in 1933, going throughout the thirties and then to the early forties, is that states, as they re-legalize alcohol, were very careful to guard against the risks of drunkenness, so that laws re-legalizing alcohol have talked about potency caps, hourly caps in terms of how long drinking establishments could run, requirements that food be served wherever alcohol is served, requirements that people couldn’t stand at a bar, that they had to sit at tables, so that they were not encouraged simply to drink quickly, as in the old-style bars of the old West. 

Ford: George, so we were talking about the distinctions between alcohol and other drugs and I’m wondering what you make of what’s happening with marijuana today. We’re slowly, it seems, moving in the direction of complete legalization. Maybe I’m wrong about that, but certainly the story in California has been, it’s gone from, medical uses to general recreational uses that are not, as an effective matter, not policed. What’s happening with marijuana? 

Fisher: Yeah. So there are two things I think that are the most interesting part of the story of marijuana in the 20th and 21st century. The first is that when we started banning marijuana in the country as a law, as a whole, the earliest states were not the states one might imagine—not the states, for example, of the Southwestern border, which is maybe what we would have thought if the influx of Mexican immigrants was what triggered the white Americans to react in some anti-brown skinned way to ban drugs. It’s not the story. The first state that banned cannabis was Massachusetts and four of the first 10 were in New England. It was once again, a story about morality, about old-style morality and the protection of youth. But all of those early laws, I think with one exception, maybe the one exception being Alabama, 49 of the 50 states and territories, when they banned cannabis, in the early part of the 20th century, they all preserved medical use as being lawful, meaning that doctors could continue to prescribe cannabis for a very narrow class of ailments for which cannabis was thought to be effective. 

The striking departure, and the one part of the drug war that really does trace particularly to the Nixon era, was the 1970 Controlled Substances Act, which classified cannabis as a Schedule I drug with no recognized medical use, and therefore, forestalled medical research, and that part was, over the decades that followed, recognized it being a step too far. It was out of line with the history, the whole history of drug and alcohol prohibition, always medical uses have been preserved in both the drug and alcohol realms, and not just cannabis, but also cocaine and the opiates. It was only this one striking departure of putting all of cannabis use completely out of sight. 

And so when states began to legalize medical cannabis use, in the early 1990s—I think California’s 1994 law was the nation’s first, although I might be wrong by a year or two there—that simply returned us to the old historical status quo. So it wasn’t that revolutionary, but it was revolutionary when, in 2012, we began in the states of Colorado and Washington and then other West Coast states followed–and then as you noted it begins to spread across the country, to legalize recreational cannabis use. And that was new, that was now a real departure from not just a century of cannabis prohibition in this country, but from many centuries of prohibitions of intoxicating substance use.

And the interesting part of that story, I think, is that the triggering step, the one thing that changed dramatically in the years immediately leading up to the 2012 and beyond revolution was again, going back to Michelle Alexander’s New Jim Crow in 2010 and the way it congealed old conversations that had existed largely in the academic world about how the drug war was being weaponized against communities of color, and Michelle Alexander’s triumph with that book was communicating those same ideas to the much broader audience of general readers who suddenly looked on laws against drugs as being part of a racist establishment, a racist system that was victimizing people of color and therefore emptying communities of color of those who were sent off to prison, and destabilizing communities and being the source of a broader social blight.

And that argument I think has been the catalyst that has made it possible for these laws to go from state to state. And the evidence you see of the force of that argument is that in the majority of those jurisdictions that have legalized cannabis use for recreational purposes, there have also been enacted equity provisions so that the licensing of cannabis dispensaries has been directed prominently, not exclusively, but prominently and deliberately toward those communities hardest hit by the war on drugs, meaning those communities where there has been a higher proportion than elsewhere of cannabis-related arrests. And strikingly, these licenses for cannabis dispensaries have been allocated disproportionately to people who were prosecuted and convicted and imprisoned for cannabis-related crimes during the earlier drug war.

So the use of these legalization provisions to undo the racially unjust aspects of the 20th century war on drugs has been very self conscious. In a way it’s the inverse of the story usually told about what triggered the war against drugs. It’s now a war to undo that war and also driven by racialized notions, but now driven by the notion that the old drug war was unjust against people of color.

 

Ford: So it’s really a racial justice motivation rather than beliefs about the harmfulness or lack of harmfulness of marijuana per se that you think has driven this. I wonder what you think about the aftermath where now in many states cannabis use is effectively legal in almost any context and yet one of the consequences, at least that I’ve heard is that the potency of marijuana being sold, whether on the streets or in the legal dispensaries, has gotten much, much greater.

So, you know, there are jokes about this on Saturday Night Live where some people from the, used to smoking pot in the 60s decide to have a joint today and then their blotto out of their minds right away because the dose is higher.  But that seems to be just the opposite of what you would want from the old moral perspective where it’s okay if it’s not completely intoxicating, but it’s bad if, if you’re, if it deprives you of your reason.

Fisher: Yeah and I think it’s one of the few predictions I make in this book is, and I think it’s generally unwise to put yourself in print and predict the future, especially as a realm is as quickly changing as this one, but I do predict that unless those marketing cannabis become savvier about the way they market it, both in terms of the potency, which you talk about, and in terms of the messaging they send through their advertisements, that there will be a backlash and that messaging in its worst forms talks about exactly how mind altering and how powerful and as you say, blotto-inducing these drugs have become because that’s I think exactly the message that will trigger the old moral notions. And I don’t think those notions are dead. They’re no longer what in the old ways that appeal to religious authority but rather the notions of mind clarity and the problems with checking out and escaping from reality.

These sorts of condemnations of putting oneself out of one’s mind are still spoken, as you say, this is your brain on drugs – that message is that old message from the time of our youth was really an appeal to those moral notions. They haven’t died. They’re still latent there. And so you and I are talking at a very important moment in this inflection where you could imagine the tide beginning to turn against the trend of the last 15 years when we see that in Oregon, the legislature just this week voted to undo the decriminalization provisions that had been enacted only a couple years ago, during a time when people thought that the war on drugs was truly coming to an end. I think the war on drugs in every realm except for cannabis is still vigorous. And in the realm of cannabis, you would not be shocked if the liberalization trend we’ve been watching stalls out at almost the point where we now are,where the remaining states for the most part are the older traditionals, Bible Belt and Far West States, where the Bible and adherence to old Christian notions remains firmly entrenched. 

Ford: Thank you, George, for speaking to us today. This has been a fascinating conversation. There are so many elements of the ongoing struggle with drugs and intoxicants and our kind of strange and somewhat inconsistent relationship between them that your book covers in much greater depth. Thanks for being on the show. 

Fisher: Thank you for giving attention to this work. 

Ford: Thanks again to our guest, George Fisher. This is Stanford Legal, and if you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us to improve the show and to get new listeners to discover the show. I’m Rich Ford, see you next time.