From Los Angeles Times
Panacea one day, poison the next
By DAVID SAVAGE in Washington
When the 20th century began, it was illegal to sell cigarettes in 14
American States, and selling a lottery ticket was a federal crime.
Cigarettes were a "noxious" product, and "a belief in their
deleterious effects, particularly among young people, had become very
general", the Supreme Court said in 1900, as it upheld Tennessee's
prohibition on cigarette sales. And lotteries were a "widespread
pestilence" that must be killed off, the court ruled three years
At the same time, narcotics such as opium, morphine and heroin were
sold over the counter and from mail-order catalogues as balms for what
one writer called the "nervous pace of modern life".
The evolution of US laws on personal vices makes for one of the
oddest, most fascinating chapters of 20th century legal history.
Unlike, for example, the universal recognition of murder and robbery
as crimes, judgments on crimes of bad behaviour have come and gone,
riding on the tides of public opinion. The criminal vice of one era -
whether drinking, gambling, smoking or drug-taking - often has been
lauded at another point in time as fashionable, or tolerated as simply
a bad habit.
"Our notion of what is immoral behaviour has changed drastically,"
said Yale Law professor Steven Duke. "The pendulum has swung back and
The debate about which vices to regulate - and how best to regulate
them - raged in each era and continues today.
Since 1980, the government has pursued a "war on drugs" with the full
force of criminal law. In recent years, more than 60 per cent of the
inmates in federal prisons have been put there for drug-related
crimes, thanks to the mandatory sentencing laws passed by Congress in
These laws proved especially powerful because they imposed fixed
prison terms on someone caught with a certain amount of an illegal
substance, regardless of whether it was the violator's first offence
or whether they were a minor player in a big drug ring. Of the more
than 20,000 federal drug offenders sent to prison last year, only 41
were identified as "drug kingpins".
Yet, far from easing off, the Senate on a 50-49 vote moved last month
to impose new mandatory prison terms for low-level cocaine dealers.
The Powder Cocaine Sentencing Act would trigger a five-year prison
term for someone with 50 grams of cocaine, down from 500 grams under
current law. The bill will be taken up by the House next year.
A century ago, narcotics were not seen as evil substances, although
their addictive qualities were becoming well known. Instead,
politicians focused their ire on cigarettes and gambling.
In the late 19th century, pipes and chewing tobacco were considered
safe and traditional, while the newly popular cigarettes were viewed
as dangerous and disreputable.
As a product, "they possess no virtue but are inherently bad and bad
only", the Tennessee Supreme Court said. It upheld a criminal charge
against William Austin, a merchant who had ordered a crate of
cigarettes from the American Tobacco Co in Durham, North Carolina. The
legislature was entitled to act for "the protection of the people from
an unmitigated evil", such as cigarettes, the State judges said.
The US Supreme Court agreed, on a 6-3 vote, noting that the "public
press has been denouncing the use [of cigarettes] as fraught with
great danger to the youth of both sexes".
Be realistic, the three dissenters responded. "During the year 1899,
2,805,130,737 cigarettes were manufactured in the United States," and
"there is no consensus of opinion ... as to the greatness of the
Still, the legal attack continued through the first two decades of the
century. In 1915, Michigan imposed a 30-day jail term on anyone who
"harboured minors for indulgence in cigarettes".
Gambling was also under attack. Lottery tickets that moved through the
mail from any "enterprise offering prizes dependent upon lot or
chance" were illegal under federal law.
Although horse racing or card games were confined to a few, a lottery
"infests the whole community", the Supreme Court said in 1903. "It
enters every dwelling. It reaches every class. It preys upon the hard
earnings of the poor. It plunders the ignorant and simple."
Narcotics were viewed in a kinder light. The patent medicines of the
era were laced with morphine.
In 1899, the Bayer company of Germany developed two pain medications
that proved instantly popular. One was sodium acetyl salicylic acid
and was named aspirin. The other, diacetylmorphine, was added to cough
syrups. It was named heroin.
Cocaine was commonly found in tonics and was the recommended treatment
for those with hayfever and sinus trouble. Until 1903, it was added to
the newly popular soda known as Coca-Cola.
Cocaine was "considered a pick-me-up, a brain food", said Yale
historian David Musto.
By the 1920s, however, the tides had reversed. In the wave of
sentiment for Prohibition, alcohol and narcotics were seen as
ruinously addictive, and their sale was banned under federal law.
Heroin, which proved to be especially addictive, was brought under
federal law in 1924.
But the cigarette bans were lifted, and smoking became a glamorous,
all-American habit. By mid-century, more than half of American men and
one-third of women smoked regularly.
Nevada became an oasis for legal gambling in the 1930s. Lotteries did
not spread across the nation until the 1970s, as the same governments
that had prosecuted gamblers and the so-called numbers racket decided
to promote lotteries as a source of instant riches for state coffers.
It would seem that the nation can carry on only one prohibition
crusade at a time. Four years after the prohibition on alcohol was
repealed in 1933, federal authorities adopted a new prohibition on
As if to come full circle, the Supreme Court now has before it the
question of whether federal health regulators have the power, at least
in theory, to prohibit the sale of cigarettes. The case tests whether
tobacco is a "drug" and therefore comes under the control of the Food
and Drug Administration.
If so, federal authorities could demand either that nicotine be
removed from cigarettes or that the product be banned entirely.
Meanwhile, the stigma of gambling and nearly all legal restrictions
have disappeared. All but Utah and Hawaii have some form of legal
gambling and 37 States sponsor lotteries.
"People gambling in this country lost $50 billion in legal wagering in
1998, a figure that has increased every year over two decades, and
often at double-digit rates," the National Gambling Impact Study
Commission reported in June. "And there is no end in sight. Every
prediction that the gambling market is becoming saturated has proven
to be premature."