“The criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.”

I’ve thought about this paragraph and the document it comes from a lot in the years since marijuana recently became legal. Even with the end of prohibition, Americans continue to be arrested for possession. 

The above quote comes from a document that has seemingly been lost to history. It was written in 1970, as part of the Comprehensive Drug Abuse Prevention and Control Act. Title B under the act was the Controlled Substances Act, which classified illegal drugs into five schedules, or categories, with Schedule I reserved for the most heinous. That scheduling, especially of cannabis, got plenty of attention and still does.

But another section, Part F, called for a commission to study marijuana use from all aspects—medical, cultural and legal—and come up with recommendations. Former President Nixon chose the head of the commission, and he dispatched a former Pennsylvania governor, Raymond Shafer, to come up with a (“wink, wink”) document that proved marijuana was undermining the country. A federal judgeship for Shafer, Nixon mentioned in a kind of quid pro quo, might be in the offing.

Instead, Shafer took its charge seriously in producing the Report of the National Commission on Marihuana and Drug Abuse. “Marihuana, a Signal of Misunderstanding,” which came out of the report, is to date the most serious government study on cannabis. It offers a history of marijuana use and regulation up to that time. Its main conclusion was that marijuana should be decriminalized for adults for personal use. 

“We have carefully analyzed the interrelationship between marihuana the drug, marihuana use as a behavior, and marihuana as a social problem,” the report concludes. “Recognizing the extensive degree of misinformation about marihuana as a drug, we have tried to demythologize it. Viewing the use of marihuana in its wider social context, we have tried to desymbolize it … The existing social and legal policy is out of proportion to the individual and social harm engendered by the use of the drug. To replace it, we have attempted to design a suitable social policy, which we believe is fair, cautious and attuned to the social realities of our time.”

Shafer’s commission concluded: “Whatever the facts are we have reported them. Wherever the facts have logically led us, we have followed and used them in reaching our recommendations. We hope this Report will be a foundation upon which credibility in this area can be restored and upon which a rational policy can be predicated.”

Needless to say, Shafer didn’t reach the bench, a rational policy was never considered, and though Nixon did everything in his considerable power to bury the report, it’s still available online and well worth perusing. 

The administration and Congress, of course, also stuck it to Shafer, almost spitefully classifying pot as a Schedule I drug in the same category as heroin, LSD, Ecstasy, mescaline, Quaaludes, the date-rape drug GHB, and psilocybin. It ignited the multi-billion dollar War on Drugs—which, in 2018, still cost us taxpayers more than $30 million a year.

Nixon aide John Erlichman later admitted from prison, where he was serving time for his role in the Watergate scandal, that the War on Drugs was a blatant attempt to disrupt the president’s two least-favorite minorities: black Americans and the hated hippies. Both groups vehemently opposed his policies. “We knew we couldn’t make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities,” Erlichman told an interviewer. “Did we know we were lying about the drugs? Of course, we did.”

Cocaine, because of its limited medical use, got a Schedule II classification, which means the U.S. government officially still considers it to be safer than cannabis. Break out the medical coke, everybody.

Despite Erlichman’s decades-old confession and adult legalization in 11 states and the District of Columbia, Americans, especially black Americans, continue to be harassed and arrested for cannabis possession and use. That means the Drug War, a federal failure now a half-century old, is far from over. Those wrongs still need to end. We’ve come so far, and yet we can’t forget that there’s so much further to go.