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

      the mid-1980s.


      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

      supposed evil."


      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."