The third post in this three-part series on Drugs, Women, and Families is based on the valuable research of Jamie Feyko, who during my drug law seminar investigated how pregnant women with substance use disorders are treated in the United States. In short, they are blamed, villainized, and punished. The trend toward criminally charging pregnant women who use drugs with crimes began in the 1980s and has been growing ever since. Feyko’s review of major cases reveals the extent to which politics and racism drive this phenomenon. But she also contextualizes this history within a set of cultural assumptions about motherhood and pregnancy that leave many women with few options for treatment and care.
Sarah Siff
A Tale of Two Clauses: Due Process in Racialized Reproductive Freedom
For Women’s History Month, I’m so pleased to celebrate three women who have each, through their original work, taught me important lessons about the history of drug control. This second post in my series on Drugs, Women, and Families summarizes an exceptional research paper written by Lydia Wendel during my seminar in drug law last year. She identified two very different constitutional and legislative histories that defined reproductive freedom: one path for white women and another path for all other, or BIPOC, women. The U.S. Constitution’s “due process of law” clause appears twice, commanding both federal and state governments to provide it to all citizens. Wendel’s remarkable insight into how these words have worked to protect the rights of some women while forsaking others gave me a deeper understanding of this difficult and vital aspect of constitutional law. She arrives at a chilling conclusion: that these two constitutional paths are now converging to the detriment of overall reproductive freedom for all women in the United States.
The Real War on Families: U.S. Child Welfare Law in the Shadow of Drug Prohibition
This post is the first in a three-part series on laws related to drugs, women, and families, written in observation of Women’s History Month. The series is based on original research conducted by three talented women who graced my historical seminar in law at Ohio State University during autumn 2021.
Today’s post summarizes the excellent work of Karen Augenstein. As she writes, the inherent value of family is deeply rooted in U.S. law; yet in legislating drug control over the past 50 years, “the importance of family was forgotten in favor of punishing those with substance abuse issues in the worst way possible: taking away their children.” The paper covers three major acts of Congress (in 1974, 1980, and 1997) that form the basis of child welfare law. These laws prescribed punishments for parental drug use that led to unprecedented rates of family separation and an “explosion of the foster care system,” while parental incarceration resulted in “harsh, impossible requirements for reunification.”
1964: The Year in Smoking—Race, Cigarettes, and Capitalism
Editor’s Note: Today’s post comes from contributing editor Sarah Brady Siff, a visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC).
The superb historian of medicine Keith Wailoo has just written Pushing Cool: Big Tobacco, Racial Marketing, and the Untold Story of the Menthol Cigarette (online book talk here). With this fifth monograph, Wailoo places a capacious 20th-century frame around a culturally and economically significant drug—just as he did around opiates in Pain: A Political History (2015). For those of us in the subfield of alcohol & drugs history, both books offer unique insights from a gifted researcher with deep experience writing about the impact of race on health by way of institutions. In Pain, those institutions mostly are public and federal, from the camera-ready 1980s “Just Say No”-style prohibition campaigns to quieter efforts to deny opiates to Medicaid patients—including combat-injured veterans—with chronic pain.
But in Pushing Cool, the institutions are tobacco companies, along with the Madison Avenue firms they hire to pry open particular demographic segments and make them smokers. Wailoo identifies 1964 as the start of an aggressive campaign to attract urban Black consumers to menthol cigarettes, a charge led by Brown & Williamson’s Kool but soon attracting dozens of other menthol brands.
Inspector Boden Burns It All: The Story of a Pioneering California Drug Warrrior, 1907–1927
Editor’s Note: Today’s post comes from contributing editor Sarah Brady Siff, a visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC).
What a time to be a historian. An embarrassment of digitized newsprint has made it possible to pursue all sorts of angles and stories, to chase all kinds of people not just down a rabbit hole but all around a rabbits’ warren. Fred C. Boden is one such person who has always caught my eye. A corpulent and bombastic city cop, Boden became one of California’s, and thus one of the nation’s, first state drug enforcement officers. From the passage of California’s state Poison Act around 1907 until his death 20 years later, Pharmacy Board Inspector Boden traveled the state to enforce the prohibition on selling and possessing opium and morphine without a doctor’s prescription.
Boden’s arrestees were overwhelmingly Chinese immigrants—a community that had long been targeted by the state and by California cities with various licensing and regulatory laws that brought fines and other criminal penalties. White doctors and pharmacists, presumably those who refused to be licensed according to the new law or who persisted in writing opiate prescriptions, were arrested in lower numbers.
Surprise mass raids, often involving posses of local police and deputized citizens, were common. In 1910, Boden led a raid that ended in the arrest of twenty-four Chinese immigrants in Bakersfield where he had been made a sheriff’s deputy. The following year Boden was in San Diego where a newspaper reported that under his direction “the police drag-net has captured seventeen Chinese and two prominent physicians” with more arrests of both “expected daily.”
Drug Packaging: Newspapers’ Long History of Sensational Narcotics Reporting
Editor’s Note: Today’s post comes from contributing editor Sarah Brady Siff, a visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC).
It seems true (though not perfectly true) that laws and policies conform to public opinion eventually. I recently attended a virtual meeting on sentencing reform wherein one of the panelists, a district judge, twice underscored the deep importance of public opinion to criminal justice reform. His comments stood out because, in my academic experience, people so rarely talk about public opinion as an element of policy change. Yet everyone seems to agree it exists.
We might reasonably feel optimistic these days about the drift of public opinion toward decarceration and liberalizing drug laws, but such winds have more often blown in the opposite direction. A century ago, the Supreme Court followed public opinion and affirmed the constitutionality of the Volstead Act, leading the country into the disaster of federal alcohol prohibition. Such laws did not lead to orderly sobriety but to similar measures against other substances like the widespread “preventive” prohibition of cannabis. Such was the historical argument of legal scholars Richard Bonnie and Charles Whitebread in 1970. They worried that contemporary public opinion about cannabis had been inflamed by the larger social conflicts of the 1960s, consigning the marijuana debate to “the public viscera instead of the public mind.”
Sadly, they were right. Although many scholars and activists in the early 1970s considered legalization imminent, this possibility disappeared in a cloud of bad press and President Carter’s spiraling public approval rating. Then, during the 1980s and 1990s, Joe Biden was one leading politician who often proposed or supported escalations of the drug wars because of public opinion. Biden, and other drug warriors, explicitly argued that the people wanted tougher drug policies and more federal aid to drug law enforcement. (The people, he said, were even willing to spend money on it.)
Public opinion is uncontrollable yet essential; public opinion can be either fickle, deep-rooted, or mysterious. But since public opinion can—and often does—influence laws and policies, we might think about it more often. In that spirit, I offer a brief collection of media artifacts from several different eras that have helped shaped public opinion about drug control. Americans have been consuming a sustained diet of drug-related information for more than a century.
Remembering Civil Rights Lawyer Samuel Carter McMorris and his Fight Against Unjust Drug Laws & Police Brutality
Editor’s Note: Today’s post in honor of Black History Month comes from contributing editor Sarah Brady Siff, a visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC).
In 1962, the United States Supreme Court struck down California’s “narcotics addict” law in the case Robinson v. California. Samuel Carter McMorris, the lawyer who argued and won the case, was a fierce criminal defense lawyer for the Black community in Los Angeles during a tumultuous era. Robinson was the second of two criminal cases McMorris successfully appealed to the Supreme Court, both of them at his own expense on behalf of indigent clients. Yet McMorris has been lost to history, left without so much as a Wikipedia page.
As McMorris knew, abuse was inherent in California’s narcotics addict law. A quarter of drug arrests in Los Angeles during the 1950s and early 1960s were solely for the crime of addiction, a charge that did not even require the physical presence of drugs themselves. The testimony of an officer that he had observed injection marks on the arm of a suspect was ordinarily enough evidence for a conviction. Police freely and frequently demanded that citizens roll up their sleeves and expose the insides of their arms so officers could inspect for needle marks. This “evidence” was so conclusive in court that suspects in custody sometimes disfigured themselves by burning the area with lit cigarettes. McMorris’s legal activism helped overturn the criminalization of addiction and this type of invasive drug enforcement.
Early Life
McMorris was born in Columbus, Ohio, in 1920. His father, Arthur, was a policeman, and his mother, Marie, was a homemaker; Samuel had four younger sisters. When he graduated from East High School in 1937, his class named him both “most industrious” and “most conscientious.” He worked as a traveling salesman, served in the Army, then attended Ohio State University, where he attained a law degree in 1950.
“The Adventurous Tasters,” a Story for Fat Tuesday
Editor’s Note: Today’s timely Mardi Gras-themed post comes from contributing editor Sarah Brady Siff, a visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC).
The place: Paris. The year: 1850. “It was mardi-gras, and copious libations of flaming punch had prepared the natives for anything or everything.” So began a tale reprinted widely by newspaper editors across the globe.
(Here in the United States, Mardi Gras 2021 surely will be the soberest on record, New Orleans itself having condemned “superspreader” crowds, called off parades, shuttered bars, and banned most alcohol sales.)
In 1850, though, the local Parisians were the type to spend a lot of time hanging out at a café. So that’s where they were on Mardi Gras, drinking punch (likely made of rum) at a café just up the block from an apartment where a physician lived with his family.
This physician had received an excellent imported shipment of cannabis extract, and he was keen to share it for recreational use on this most celebratory and hedonistic day. The drunken revelers were willing participants—”adventurous tasters”—living in the same city at the same time as that famous literary circle, the Club des Hashischins. The doctor showed up with 15 grains, or about 1 gram, to distribute at the café. “Not more than a single grain was given to each,” read the article. Some swallowed it like a pill, while others smoked it or smeared it on a cigarette paper to smoke with tobacco. One grain was dissolved in a glass of Curaçao for the “master of the house; [but] his two young and handsome daughters were forbidden to taste of the drug.”
Of course one of the daughters found a way to sample the cannabis; it would hardly have been a story otherwise. After about 45 minutes, the girl shrieked and “was suddenly struck with delirium and hysterical movements of a very alarming appearance,” according to the article, which went on to describe her ordeal: