How Richard Nixon Paved Way For More Humane Drug Laws: Reexamining The War On Drugs
When I began writing this I had to approach the topic with an open mind. This will be my second article on the Nixon administration, you can view my first one here.
As someone who has attended Hemp Fest in Boston for the past 15 years, voted to legalize marijuana in my state of Massachusetts in 2016, and as a disgruntled teenager once attempted to grow my own plants in my parents basement (more about that later)… this was going to be a hard one for me to admit. Among my friends, Richard Nixon was the enemy of justice and our cause. The man himself who helped implement a war on drugs in 1970 with the passage of the Controlled Substances Act. Among my circle, you wouldn’t hear too many positive things said about the Nixon years, except maybe that he’s no longer one of our worst Presidents thanks to Donald Trump
The more I dove deeper into this topic, the more I became shocked to find out everything I knew about the war on drugs was wrong. The coined ‘war on drugs’ was actually one of the greatest policies ever passed by our Congress, which at the time in 1970 was ruled by a split Congress that pushed Nixon to reform drug policy. This is the untold story of how Richard Nixon worked alongside the hippies at Woodstock and Democrats such as Edward Kennedy to reform our nation’s drug laws.
1968 was an interesting year for the United States in more ways than one. We witnessed back-to-back assassinations, the Vietnam War was at its peak, our political climate was full of division and violence, and the marijuana plant was about to become legal in all fifty states thanks to a doctor. Timothy Leary’s long-running battle with the United States came to a breaking point when he was famously arrested during a family vacation coming back from Mexico in 1965 for possessing three unlit marijuana joints found in his teenage daughter’s pocket.
Timothy chose to sue the government and won. In 1969 Justice John Marshall Harlan wrote the majority opinion that the Marijuana Tax Act was in violation of the 5th Amendment and overturned not only Leary’s conviction but pressed the government to rewrite our nation’s drug laws. As we entered a new administration Richard Nixon was tasked with coding a new legal structure for how we would approach drug crimes in America now that prohibition had been lifted. In an attempt to appease young voters, he chose to do this in a bipartisan manner, working directly with Democrats such as anti-prison Senators Edward Kennedy, Harold Hughes, and James Eastland. According to historian David T. Courtwright, “The Act was part of an omnibus reform package designed to rationalize, and in some respects to liberalize, American drug policy.”
The new administration got right to work by hiring a new team of advisors to represent America’s youth voters that would soon be lowered to eighteen, who overwhelmingly supported reducing drug sentences. This would go on to be known as the Shafer Commission, headed by Governor of Pennsylvania Raymond P. Shafer and Assistant Secretary of Public Health Roger O. Egeberg. They changed the course of American drug policy by taking a public health approach to addiction rather than criminal, and to specifically report on marijuana’s health effects. As well as introducing sentencing reform under the Brown Commission in 1971. Previous administrations had introduced mandatory minimums which Nixon sought to reduce or outright eliminate by declaring a war on drug addiction under the Drug Abuse Prevention and Control Act. No longer would narcotics be considered criminal contraband but “controlled substances”.
According to historian David T. Courtwright, “the Act was part of an omnibus reform package designed to rationalize, and in some respects to liberalize, American drug policy.”
The Controlled Substances Act actively replaced the Boggs Act of 1952 and Narcotics Control Act of 1956, removing all mandatory minimums for drug offenses. In essence, decriminalizing all drugs for possession of small amounts. Before Nixon, a first offense marijuana possession carried a minimum sentence of 2–10 years with a fine of up to $20,000. Although Nixon did not go all the way to decriminalizing marijuana on the federal level, the change in drug legislation allowed states to write their own policies for the first time under the Uniform Controlled Substances Act leaving federal law up to interpretation. This led up to 11 states during the 1970s to decriminalize marijuana including a handful of red states.
Part of the new way of thinking away from the Anslinger years was viewing drug addiction as a public health crisis rather than vilifying a segment of our population. Nixon’s “war on drugs” established new federal funding for addiction treatment and mental health facilities across the nation, and in particular for single mothers who were in public housing. The Hughes Act sponsored by Senator Harold Hughes was passed in 1970 establishing the NIAAA. “In its more-than-50-year history, NIAAA has led the effort to reframe alcohol use disorder as a medical — rather than a moral — issue, and to study topics relating to alcohol and health systematically, through evidence-based findings.”
“Then Republican congressmen including George H. W. Bush spoke in favor of repealing mandatory minimums as it would “result in better justice and more appropriate sentences.” — Molly M. Gill (Federal Sentencing Reporter Vol. 21, No. 1)
His administration started the first heroin rehab facilities, known as then the controversial “methadone maintenance program” in 1971. Americans were changing their attitude about drug addiction in general because Vietnam veterans were coming back from war addicted to heroin. It is unfortunate that from 1980 to 1987, federal support for drug and alcohol treatment services dropped by more than 40 percent under Ronald Reagan, and mandatory minimums were brought back by future Democrat and Republican administrations.
Another big move was the consolidation and downsizing of government spending. Part of that move was eliminating departments dedicated to writing and enforcing drug laws. In 1968 there were four separate departments tasked with narcotics regulation. When Congress established the Drug Enforcement Administration, they replaced and shut down the Bureau of Narcotics and Dangerous Drugs (BNDD), the Office of Drug Abuse Law Enforcement (ODALE), and laid off approximately 600 Special Agents of the Bureau of Customs, Customs Agency Service. This was in a move to eliminate excess government spending. It is simply inaccurate to say that the Nixon administration created or established the DEA. Although true, it is a bit stretching of the truth to come to that conclusion.
We began to move away from “kinder” drug policies during the 1980s. The move away from the rehabilitative model was surprisingly a movement supported by the left at that time. Democrats in Congress funded and pushed for the publication of the Martinson Report in 1975. This showed that the rehabilitative model was putting too much power into the hands of judges. The consequence of not enforcing drug laws in only certain cases was an environment that opened the door for racial profiling. It was argued that whites were getting far less severe drug sentences in America’s courts than black Americans. Civil Rights activists such as Jesse Jackson and Edward Kennedy pushed for more uniform drug laws. Even going so far as Jesse Jackson declaring himself the “General Of The Drug War”. Democrats introduced and supported the Sentencing Reform Act (SRA) of 1984.
“Some scholars view the legislation as a thoughtful blueprint for rationalizing the sentencing process, with significant liberal elements meant to reduce over-reliance on imprisonment and preserve significant judicial discretion, albeit with some compromise of these principles as the legislation took final shape (Miller & Wright, 1999). Others believe the SRA was subtly transformed from the liberal blueprint originally introduced by Senator Edward Kennedy in 1975 into a law-and-order measure designed to increase the severity of punishment and virtually eliminate judges’ discretion to consider individual offender characteristics (Stith & Koh, 1993).”
It was an era where populism rose and a distrust of judges was cemented. Sen. Kennedy’s bill called for a commission whose members would be chosen entirely by the Judicial Conference. But over its years of development, the idea of the Sentencing Commission was transformed from a judge-dominated agency to an agency whose membership is more closely connected to the Executive and Legislative branches. Ted Kennedy was opposed to the CSA because he as an uber-liberal, in essence, did not believe in the rehabilitative model of drug sentencing and voted to bring back mandatory minimums in 1984. Believing judges should not have discretionary power to sentence because all sentences should be equal for every person. The SRA required just three of seven voting commissioners to be active federal judges. The PROTECT Act recently further changed the Commission structure to eliminate the requirement of a minimum judicial presence on the Commission and set the maximum number of judge members at three. This in turn forced the Reagan administration to drop Nixon’s model of judge discretion and rehabilitation, when Congress in 1986 and 1988 reintroduced federal minimum sentences supported by both Democrats and Republicans as a less biased and more uniform method of crime fighting. Make no mistake, the era of “tough on crime” was about to begin, with a young Delaware Senator Joe Biden was placed as head of the Senate Judiciary Committee from 1987 to 1995 and was a ranking minority member from 1981 to 1987. This was despite Reagan’s attempts in 1987 to reduce or outright eliminate drug programs he felt were a waste of the federal budget in efforts to reduce government spending.
Contrary to popular belief, Ronald Reagan did not support harsh sentences for drugs, nor did he support the massive buildup of federal funding for police force and prisons. The following article was published by the New York Times in 1987 called “REAGAN'S CUTS IN ANTI-DRUG EFFORT BRING OUTBURST AT SENATE HEARING”. It was reported that during the Reagan years, on average 6/10 drug charges were being dropped due to a lack of federal prosecutors and prisons to hold all of the drug offenders. This is because the Reagan administration was directly opposed to increased federal funding for fighting the drug war what he coined “big government spending”. The Administration proposed $913 million in cuts in the 1988 budget for all law enforcement, prevention, education, and treatment programs involving drugs to shrink the size of government.
“In an unusual display of frustration an abandonment of decorum, two Senators shouted down a Reagan Administration spokesman today at a hearing and attacked proposed cuts in anti-narcotics programs with such phrases as nonsense, drivel, and totally dishonest. The Administration's proposed budget cuts involving enforcement and education have come under special criticism within Congress. Senator Lawton Chiles, a Florida Democrat who is normally low-keyed, grew visibly red-faced when Mr. Walters defended the Administration's proposal to cut the funds for narcotics in 1988. 'This is simplistic nonsense,'' Mr. D'Amato said. ''It is nonsense and drivel. For you to say we don't need the money, that's nonsense.'' — New York Times (January 30, 1987 Section B, Page 9)
“ Reagan’s budget cuts to drug prevention are criminal and deceptive to the American people. The President is just saying no to these programs.’’ — Alice M. Riddel New York State Association of Drug and Alcohol Abuse Prevention (1987 Congressional Statement)
What followed was, that Democrats in Congress wrote the law that required the President Of The United States to submit a national drug strategy and deliver a speech to the American people over live television.
When George H.W. Bush went on television to introduce $1 billion to fight the crack cocaine epidemic in public housing, it was Joe Biden who directly followed him demanding Congress increase funding to fight drugs by triple what Bush was asking and stated that “Republicans are too little too late”.
“Democrats in the Congress got together last year to write the law that required the President to give us a national drug strategy. The one you heard tonight. We don’t oppose the President’s plan. All we want to do is strengthen it. We don’t doubt his resolve. All we want to do is stiffen it. Quite frankly, the President’s plan is not tough enough, bold enough, or imaginative enough to meet the crisis at hand. Not enough police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time. What we need is another D-Day, not another Vietnam… a limited war fought on the cheap.” — Joe Biden (1989 Televised Response)
Any debate on this topic must be used with context. Getting tough on crime was an extension of civil rights and was viewed at that time as a form of compassion to “save the black community” and public housing, which had reached all-time high violence in the late 80s and early 90s. Democrats coined it a “war against violence”, which included the Violence Against Women Act. It was their view that Republicans were not doing enough to curb crime which was a huge problem. This was the mainstream liberal viewpoint for many decades. It was Bill Clinton who promised to solve crime on our streets which previous Republican Presidents before him had promised but failed to do. With key supporters from Diane Feinstein, Al Sharpton, John Kerry, and Joe Biden, he introduced the 1994 Crime Bill that codified into law the modern-day build-up of police presence and prisons in the last 30 years. At the time, however, it was considered a victory among black voices and leaders for their communities at large. How convenient some of these voices are now opposed to policies they helped create.
Now stop the presses… What about that famous quote spoken by Nixon’s aid John Ehrlichman about targeting blacks and hippies? It was first reported by Harper’s Magazine by reporter Dan Baum, and you can find an online article on their website. In the article where this originated, you can read words from the family of Ehrlichman that says this; Ehrlichman died in 1999, but his five children in questioned the veracity of the account.
“We never saw or heard anything from our dad, John Ehrlichman, that was derogatory about any person of color,” wrote Peter Ehrlichman, Tom Ehrlichman, Jan Ehrlichman, Michael Ehrlichman and Jody E. Pineda in a statement provided to CNN.
“The 1994 alleged ‘quote’ we saw repeated in social media for the first time today does not square with what we know of our father. And collectively, that spans over 185 years of time with him,” the Ehrlichman family wrote. “We do not subscribe to the alleged racist point of view that this writer now implies 22 years following the so-called interview of John and 16 years following our father’s death, when dad can no longer respond. None of us have raised our kids that way, and that’s because we were not raised that way.”
Regardless of what you want to believe, we should look at this topic with a greater perspective. In every sense of the word, Nixon had the most liberal drug policy of any President before or since and this should be more widely known. There is a large ignorance that surrounds this topic. Holding many liberal views myself and attending many fundraising events for Democrats, I found it difficult to imagine my party being complacent in something I had believed was caused by “out of touch” conservatives hell-bent on incriminating innocent blacks. It turns out its most vocal opponents do not live in the communities affected most by crime and drug addiction. Perhaps we need to rethink the war on drugs altogether and consider the positive impacts it’s had on those who demanded it.
