Enough lying. It’s time to admit that Professor Joseph Spillane’s warning to Mexican Opium against touting “Drug Law Exceptionalism” in regards to racism in early drug law has deeply troubled this blog’s identity.
No, don’t comfort me – enough of the charade.
I know that the 11 people who visited Mexican Opium the day after Spillane’s bomb dropped and I snapped back saw this blog’s author in sad shape. I was a shell-shocked man in tattered rags shouting obscenities; a fallen academic demigod pontificating atop a pile of rubble.
It was foolish to be defiant in the face of total annihilation.
Spillane so deeply troubled me because his exceptionalism warning smacked of impending doom that only the most wizened academic can forecast, and that only the most foolish law student does not heed.
And then, to add to the misery provided by Spillane, we (the royal “we”) conducted an interview with a legal history professor at UC Hastings (hopefully to be posted later this week) on the subject of the emergence of American drug law coinciding with the rise of the regulatory state in the late 19th century. This interview only pushed us further into a panic over drug law’s non-exceptional status. We found ourself thinking that we were perhaps wasting time studying drug law – that perhaps, given the general increase in regulations during this era, studying early drug law, tantalizing as it may be, was no different that studying, say, early milk law. (Incidentally, digging around late 19th century cases, about every fifth case is about milk, and you are forced to face the fact that modern Americans take the purity of our supermarket milk for granted.)
And yet still, against all this mounting pressure, if you forgive us our shakiness, trying our best to be strong, we quixotically persevere.
This week’s windmill is the crime of possession, and methinks the way the crime comes to be for the substance of opium versus the way it is treated for alcohol chops ever so exceptionally.
To open the discussion up, we have an 1889 alcohol possession case, State v. Gilman, 33 W. Va. 146. Gilman was convicted of possessing an amount of whisky “less than five gallons” without a license, and fined $20. The West Virginia statute at issue prohibited possession without a license, even if you were holding it for someone else (which Gilman claimed he was).
In overturning Gilman’s conviction and striking down this early possession statute as unconstitutional, the Supreme Court of Appeals of West Virginia (Justice Snyder presiding and delivering the opinion) swings hard at the notion of criminalizing the mere possession of property as commonplace as alcohol, stating rather unequivocally that what a man holds for himself is no business of the government’s. A few choice quotes:
The maxim, sic utere tuo ut alienum non laedas, being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. But it does not follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police power of the State; and much less is such the case when the statute is merely claimed by its defenders to be intended for that purpose. (148-149)
The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public; and, therefore, the statute prohibiting such keeping in possession is not a legitimate exertion of the police power. It is an abridgement of the privileges and immunities of the citizen without any legal justification, and therefore void. (149)
From what we have already said, it is apparent that the provision of the statute under consideration is not a fair and reasonable exercise of the police power, nor has it any reference to the prohibition or sale of liquors. It is simply an attempt to make the possession of liquor for any purpose a crime. A very different question would be presented if the act had made it unlawful for any person to keep intoxicating liquors in his possession, either for himself or for another, for the purpose of selling it, or as a device to evade the revenue laws. But this provision has nothing in it of that kind. It makes the mere possession for another, without regard to the intent or purpose of either the possessor or of the person for whom it is kept, a crime. It would seem that, if it is a crime, or in contravention of the revenue laws, for one person to keep liquor in his possession for another, it would be equally so for him to keep it in his possession for himself; but under this act the latter is no offence; and, e converso, it would seem that, if the keeping of liquor, or any other property, by a person for himself, is lawful, it would be equally lawful for such person to keep it in his possession for another. (151)
The whole case is quote-worthy, and worth checking out if you have the time. It’s before society was fully convinced that just having something on your person could impute you with some sort of ill will against society. (Well, on a certain level.) It at least draws some sort of line between the state’s authority to control societal morality, and a man’s right to his self-contained personal morality. It’s quite a stand, but a stand that we all know didn’t last very long. Long before national Prohibition went into effect, Justice Snyder’s argument was outdated.
To counter this alcohol case (or as a natural progression after it), we have a 1911 opium case that takes a wholly different view on the police power’s presence in property possession. The case is In Re Yung Quon, 159 Cal. 508. It’s a habeas case, centered on a statute regulating the sale of poisons (including opium). Yung Quon violated the statute by having more than two grains of opium in his possession without a prescription.
Interestingly, 90% of the California Supreme Court’s Opinion in Yung Quon is just a quoting of one of the opinions below, penned by Justice Kerrigan of Caifornia’s First Appellate District. Coming more than 20 years after Gilman, Kerrigan has far more precedent for a broad police power to rely on than the Gilman majority did, and he it uses it liberally, citing to cases that uphold prohibitions against the possession of concealed weapons, gill nets, lottery tickets, and out of season game and fish. But, in upholding Yung Quon’s possession charge, Kerrigan still goes out of his way to make point of distinguishing the possession of the mysterious Chinese opium at issue with something like a substance as familiar as alcohol. Some choice quotes here:
Statistics show that the vice of using opium is increasing in this country. It must be conceded that its indiscriminate use would have a very deleterious and debasing effect upon our race, and in order to prevent such a condition, and to make more effectual existing enactments, the legislature found it imperative to prohibit even the possession of the drug (with the exceptions above noted). (514)
Our attention has been called to a number of cases which hold that, although the sale of intoxicating liquors may be regulated or even prohibited, the mere possession of such liquors cannot be made an offense. But liquor is used daily in this and other countries as a beverage, moderately and without harm, by countless thousands; whereas it appears there is no such thing as moderation in the use of opium. Once the habit is formed the desire for it is insatiable, and its use is invariably disastrous. (514)
Kerrigan’s perception of the police power is broad, and his perception of opium is, in a word, resolved. To be fair, the 10% of the Supreme Court opinion that does not come from Kerrigan clarifies the holding a bit, and is a little more narrowing and forgiving, umbrellaing it more under the power of the legislature to make determinations and less under the inherent wickedness of the poppy sap, but the basic premise remains unchallenged:
In distinguishing the case from those in which it had been held that the mere possession of intoxicating liquors cannot constitutionally be made a crime, the learned justice, in the foregoing opinion, uses this language: “It appears that there is no such thing as moderation in the use of opium. Once the habit is formed the desire for it is insatiable, and its use is inevitably disastrous.” We do not understand this to have been intended to declare an established or conceded fact. So interpreted, the expression would be, perhaps, unduly sweeping. But the validity of legislation which would be necessary or proper under a given state of facts does not depend upon the actual existence of the supposed facts. It is enough if the law-making body may rationally believe such facts to be established. If the belief that the use of opium, once begun, almost inevitably leads to excess may be entertained by reasonable men — and we do not doubt that it may — such belief affords a sufficient justification for applying to opium restrictions which might be unduly burdensome in the case of other substances, as, for example, intoxicating liquors, the use of which may fairly be regarded as less dangerous to their users or to the public. Assuming, as we must, that the legislature acted upon some such view, the restrictions upon the right to possess the drugs named in the act cannot be said to be clearly unreasonable or unnecessary for the protection of the public from the evils against which the legislation in question is aimed. (515)
“Hey, slow down, Kerrigan. We’re not sure if opium’s bad, but, eh, you know what? It probably is. It seems like you guys got this. Holler if you need us.”
Alright, alright, so I get it. Drug law is not particularly special. There are weird ups and downs, there are regulations coming in all the time, there’s oppressive judicial review and the complete absence of judicial review – the kind of stuff that happens with all law all over this time period. Yung Quon is pretty normal for a drug case, and seems sensible for an era of increasing regulation, and Gilman is an aberration.
But if I could just go back to my cast-aside example of milk law for a second. Some dudes wrote a whole article on it: Counting Cases About Milk, Our ‘Most Nearly Perfect’ Food, 1860-1940, Ronald F. Wright & Paul Huck, 36 Law and Society Review 51. If you get a chance, skim that article (unintended, but that doesn’t make it any less stupid for me to leave it in there).
Most milk regulation came in about the same time that most drug regulation did, and there are quite literally hundreds of cases on milk law during this era. There is no doubt that regulating milk purity was a huge issue at the turn of the 20th century, and that unsanitary milk was killing children at that time. This was science, and this was doctors – not just sensational newspaper reports of the “Liquid White Menace” or the “Udder Mania” variety that a lot of drug laws were subjected to. And yet, health and safety regulations suffered “spectacular defeats” (Wright & Huck, 65) during the 1880s, while opium laws were, for the most part, just considered spectacular.
So, when I read the Yung Quon language, or I read Deady’s language in Yung Jon, or I read almost any drug law legislative history (take, for example Henry Anslinger’s lurid tales of marijuana violence in the 30s) and I see the judicial branch so gracefully bowing its head to the legislature on what was essentially a moral issue sans facts, avec racism on drug control, it’s hard for me not to think there’s exceptional treatment there – that even with mushrooming legislation everywhere, there’s not an unexamined presumption against certain drugs because of certain racial associations that other subjects of legislation didn’t have to deal with.
If you’ll excuse me, I believe I see a giant in the distance.