Published on August 31, 2022 by Niall Nelligan via LinkedIn
Niall Neligan (Barrister, Lecturer, Advisory Board Member, INCBA)
At the beginning of June, I wrote a letter to Stephen Donnelly, the Irish Minister for Health requesting the establishment of a ministerial task force to investigate pathways towards the regulation of cannabis for non-medical adult use. In the letter, I set out the case for the establishment of the task force, and why it is necessary, the details of which I don't need to repeat here.
From the outset, and to provide some context to this request, let me say the following. I'm a lawyer and academic, and my research field for the last eight years is drug policy law reform and cannabis regulation. Less anyone reading this is in any doubt, I am not and never have been an advocate for use, rather I am an advocate for sensible drug policies which have as their object and effect harm reduction and the elimination (where possible) of the illicit market for cannabis through regulation for adult use. I came to this field with many years of experience practising law in the courts and lecturing in criminal law.
Like many of my colleagues in the courts, I came across young men and women who were prosecuted for possession of cannabis under the Irish Misuse of Drugs Act. On one occasion, I witnessed a young man with no previous convictions, being prosecuted in the District Court for the possession of €22.00 worth of cannabis. At the time, I was aware that several jurisdictions had decriminalised possession and I began to wonder, why my own country didn't follow suit. In other words, why was this young man being prosecuted for a small amount of drug that is less harmful than alcohol and tobacco? This led me to ask a more obvious question, why is cannabis prohibited?
I completed an undergraduate degree in History, Economics and Anthropology. The skills I acquired were to prove very useful, and so I went looking for the primary sources to answer the question mentioned above.
What I discovered was fascinating. The circumstances under which cannabis became subject to international control were murky to say the least, and controversial at best. This led me to the belief that the prohibition of cannabis made no sense whatsoever. Ultimately, I realised that the system of controls placed on cannabis had nothing to do with protecting public health or harm reduction. Quite the opposite - the criminalisation of cannabis had led to gross human rights violations. In certain jurisdictions, governments have used drug laws to repress minority communities and target political opponents, which in turn led to mass incarceration in the United States and the imposition of the death penalty in jurisdictions such as Singapore.
Looking at this objectively, I could see the historic inter-relationship between the origins of alcohol prohibition and the emergence of narcotic controls at the beginning of the 20th century. The process behind both was driven not by science nor by a desire to protect public health; rather it was driven by a combination of factors including Christian fundamentalism, the temperance movement, moral superiority, and racism, the legacy of which is still with us today.
To understand this, it's necessary to give some background on the history of cannabis prohibition and how it first became subject to international control as a result of the League of Nations' 2nd Opium conference back in 1925.
Origins of Cannabis Prohibition
The circumstances of how cannabis (Indian hemp) became subject to international control at this conference have long been the subject of controversy. The focus of the conference was supposed to be opium and to a more limited extent, cocaine. However, a dispute arose between the United States delegation and the British-Indian delegation concerning the scope of restrictions to be placed on opium.
The American delegation sought to curtail supply in tandem with their drive to extend prohibition beyond alcohol (remember this is during the era of alcohol prohibition) and into the realm of narcotics. The British together with the other colonial powers, the French and the Dutch, favoured moderating demand.
The American delegation tabled a motion which went beyond what was already agreed should be the objective of the conference and it was into this void that an Egyptian diplomat and physician, Mohammad El Guindy suggested that 'hashish' should be included in the list of proscribed drugs. The fact that hashish was not on the agenda serves as the clue to why the conference has been the subject of controversy ever since.
There are a couple of points to note about El-Guindy, firstly he was an Islamic fundamentalist opposed to the personal use of all intoxicants including alcohol and secondly his motives for the proscription of hashish were somewhat disingenuous. He knew hashish was far less potent and harmful than opium but he surreptitiously conflated the two.
Aside from El Guindy's posturing, it's important to look at the Egyptian delegation's wider motive. El Guindy's argument was not limited to placing controls on hashish, he wanted to put export controls on Indian hemp. This latter point is extremely important.
Despite Egypt's unilateral declaration of independence in 1922, the country remained a de facto British protectorate into which imports of cheap Indian hemp had grown substantially at the expense of Egypt's main cash crop, which at the time was cotton. Seizing the opportunity to place limits on the export of Indian hemp to Egypt, El-Guindy played the 'hashish' card. It's important to note that no formal evidence on the dangers of hashish was presented by any of the delegates including El-Guindy, nor for that matter were conference delegates briefed about the nature of Indian hemp.
Initially, El-Guindy's move was perceived as little more than attention seeking by a small player at the conference, however, he cleverly exploited the differences between the American and British delegations over the proposals concerning opium. With some backing from the Americans but more particularly from the Turks and Chinese who were only too happy to have attention shifted away from the production and export of opium, El-Guindy managed somehow to persuade the delegates to place controls on Indian hemp.
As a result of El-Guindy hijacking the agenda and gaining support from small nations to pass the motion, Chapter IV of the 2nd Geneva convention on opium placed restrictions on the export of Indian hemp and the resin obtained from it and the preparations from which the resin forms the base (i.e. hashish, esrar, charas and djamba) principally to countries which prohibited their use but also to require countries which had not prohibited export, to require a certificate from the country that intended to import.
How cannabis became prohibited in Ireland.
The Irish Free State as it then was, sent a delegate by the name of MacWhite to the conference in 1925. MacWhite caused a fair amount of mischief by giving confidential information on opium sales he obtained from the British to the American delegation, and thus inadvertently aided and abetted El-Guindy's agenda.
The Free State ratified the Geneva convention in 1931 and incorporated the terms of the convention into the Dangerous Drugs Act of 1934. The legislation allowed the Minister to make regulations for controlling or restricting the import, export, production, possession, sale and distribution of Indian Hemp and resins obtained from Indian hemp and all preparations of which such resins form the base.
Under the definition section, Indian Hemp was described as the dried flowering or fruiting tops of the pistillate plant known as cannabis sativa from which the resin has not been extracted. The Dangerous Drugs Act 1934 remained on the statute book until it was repealed in its entirety and replaced in 1977 with the Misuse of Drugs Act.
Anslinger's War on Cannabis and the Single Narcotic Drugs convention.
Irrespective of the absence of international controls on Indian hemp prior to 1925, a number of U.S. states had already introduced prohibitions on cannabis (or marijuana as it's known in America) in the first decades of the 20th century. Unlike alcohol prohibition, the motive for the prohibition of marijuana was racism towards migrants from Mexico in the southwestern states.
Before the 1930's most Americans had never heard of marijuana let alone cannabis, but that was to change when the Federal Bureau of Narcotics turned its attention toward the 'evil weed'. Through clever use of propaganda and disinformation, Harry Anslinger an enterprising bureaucrat and the first commissioner of the United States Federal Bureau of Narcotics stigmatised cannabis and in the process systematically destroyed the American hemp industry. His backstory is worthy of note.
Anslinger was born in Pennsylvania in 1892, the son of a Swiss father and German mother. His rise from railroad worker to Commissioner of the Federal Bureau of Narcotics can in part be attributed to a fortuitous marriage to the niece of Andrew Mellon, one of the wealthiest and most powerful men in America. Between 1921-1932,
Mellon served as Secretary of State for the United States Treasury under three successive Republican administrations. Under Mellon's patronage, Anslinger advanced swiftly through the ranks to become the Assistant Commissioner of the Treasury's Bureau of Prohibition, which served as a stepping stone that led to his appointment as the first commissioner of the Federal Bureau of Narcotics in 1930.
In 1933, the Democrats came to power, and Mellon departed the scene. In the absence of his patron and keenly aware that his own position was weakened by the new administration signalling its desire to end alcohol prohibition and revisit Republican-driven narcotic controls, Anslinger needed a hook to hold onto. He chose to demonise marijuana and thus make himself indispensable to the new administration.
Anslinger was unscrupulous in fabricating many of the myths the public now associates with cannabis. He deployed the resources of the Federal government and used the mediums of radio, film and print to scare middle America with lurid stories of 'Reefer Madness' whilst simultaneously engaging in thinly veiled racist attacks on minorities by tying the use of marijuana to Mexican immigrants in the southwest and African-American musicians in the jazz scene.
Anslinger's war on cannabis and the propagation of The Gore Files had its desired effect. The Federal Government passed Marijuana Tax Act in 1937. The legislation was the first attempt by the Federal Government to regulate the use of Marijuana. It did not in fact make such use illegal but rather it placed taxation on physicians, pharmacists and growers of cannabis.
The wording of the Act was sufficiently broad to prosecute anyone who sold or possessed marijuana outside the scope of the legislation. More alarming, was the requirement that physicians were obliged to keep prescriptions detailing the names of their patients and make them available for inspection by Federal agents. A physician who for any reason did not immediately file the required paperwork put himself and his patients at risk of a fine and imprisonment
Anslinger was not without his critics including two of America’s most noted physicians: Henry Williams Smith, and Dr William C. Woodward, Legislative Counsel for the American Medical Association who vigorously opposed the introduction and passing of the Marijuana Tax Act in 1937. To put it succinctly, less anyone is any doubt - the American medical profession was against prohibition from the outset.
The Marijuana Tax Act was the platform from which Anslinger advanced the powers of the federal government to criminalise behaviour associated with cannabis. In the post-war era, he lobbied congress to pass the Boggs Act 1951 which strengthened the enforcement of the Marijuana Tax Act of 1937 and the Narcotic Drug Import and Export Act of 1922 by enforcing harsh penalties on individuals convicted of drug law violations.
For the first time at the federal level, marijuana and other narcotics were lumped together as a result of the Act’s provision for uniform penalties across the board. Penalties for selling narcotics increased from 2 to 5 years in a federal penitentiary for first offenders, 5 to 10 years for second offenders, and 10 to 20 years for third offenders. The penalties came in for severe criticism on the grounds that parole was denied for anyone convicted of a second offence. These penalties were subsequently revised upwards by The Narcotics Control Act 1956 which made no differentiation between opium, cocaine and cannabis in respect of violations committed.
The Single Narcotic Drugs Convention
Having succeeded in criminalising cannabis and destroying the American hemp industry, Anslinger (in his final years in office) turned his attention toward International Drug Controls. His greatest success came in 1961 with the Single Narcotic Drugs Convention. The guiding principle of the 1961 convention was, as it is today, to limit the use of drugs exclusively for medical and scientific purposes.
The preamble of the convention declared that whilst recognising the medical use of narcotics as indispensable for the relief of pain and suffering, addiction to narcotic drugs constituted a serious evil for the individual.
Anslinger's hands were all over the Single Narcotic Drugs convention, most notably the placing of cannabis in Schedule IV - the category reserved for the most dangerous drugs, such as heroin; cocaine on the other hand appeared in the 1st Schedule.
Cannabis was to remain in schedule IV for the next 59 years until it was reclassified to the 1st schedule following a vote taken by the Commission on Narcotic Drugs in December 2020.
Article 2 (5) of the convention provided that special measures of control should be adopted in relation to drugs listed on Schedule IV which are necessary for having regard to the particularly dangerous properties of a drug so included.’
Irrespective of the wording of the convention, the drugs listed in the schedule were not made ‘illegal’ in the strict sense of the word, rather their cultivation, production and distribution were placed under strict control so that their use could be limited to medical, scientific and other legitimate purposes.
Anslinger's assistant Henry Giordano (who was to succeed Anslinger as Commissioner in 1962) admitted during the plenary hearings that cannabis was merely habit-forming and not addiction-producing, but then went on to make the ludicrous claim that cannabis was 'very often a stepping-stone to heroin addiction.'
Notwithstanding Anlinger's aversion to cannabis, it should be said he was less hardline towards its use for medical reasons than delegates from Islamic countries such as Egypt and Iran. Perhaps the most interesting admission by Anslinger during the course of the plenary hearings was his acknowledgement of the following
'...a product derived from the cannabis plant was thought to have possibilities for the treatment of certain mental diseases.'
This admission coming late in the day from the architect of Reefer madness and The Gore Files demonstrates, less anyone's in doubt, the duplicitous manner in which cannabis was demonised under his tenure.
Anslinger reached the mandatory retirement age in 1962 and was replaced by Henry Giordano who served as commissioner until 1968 when the Bureau of Narcotics and Dangerous Drugs, the forerunner to the Drug Enforcement Agency was established.
Part 2 Released 7/9/22