A Founder Looks at 50: Keith Stroup on the Shafer Commission

Keith Stroup
NORML Founder Keith Stroup

For NORML’s 50th anniversary, every Friday we will be posting a blog from NORML’s Founder Keith Stroup as he reflects back on a lifetime as America’s foremost marijuana smoker and legalization advocate. This is the second in a series of blogs on the history of NORML and the legalization movement.

The National Commission on Marijuana and Drug Abuse

As one reviews the modern history of marijuana policy in this country, beginning with the adoption of federal marijuana prohibition in 1937 (i.e., the Marijuana Tax Act) and continuing to where we are today with 33 states having legalized the medical use of marijuana and 11 states and the District of Columbia having legalized adult recreational use, perhaps the single most important step along the way was the report issued in 1972 by the National Commission on Marijuana and Drug Abuse.

Other extraordinary breakthroughs in the movement to end prohibition and legalize marijuana include the adoption of legal medical use by California in 1996, the first state to take that step; and the adoption of legal recreational use in Colorado and Washington in 2012, the first two states to adopt a legal regulated market.

But none of that would have likely been possible without the enormously powerful report, entitled Marijuana: A Signal of Misunderstanding, issued by the so-called Marijuana Commission (or sometimes the Shafer Commission, after the commission’s chair, former Republican PA governor Raymond Shafer). At the time, Gallup polling found only 12% of the country supported legalizing marijuana; 88% of the public opposed legal marijuana. Decades of government Reefer Madness propaganda had been effective and had left the great majority of the public with an exaggerated fear of the dangers of smoking marijuana. With that level of misinformation, legal reform was simply not possible.

And with that history of government anti-marijuana hysteria, initially most observers did not expect much better from this new federal commission. It is worth noting that this commission was created while anti-marijuana zealot Richard Nixon was president, and 9 of the 13 commissioners were appointed by President Nixon, with the remaining four being selected from among the sitting members of Congress. So, there was real fear the commissioners would not treat this study of marijuana policy seriously, but that they would simply recommend what they all knew Nixon wanted; more Reefer Madness. 

But after a year of study and public and private hearings, in a totally unexpected move, on March 22, 1972, the congressionally-created commission took the extraordinary step of telling the truth about marijuana!

 Here is the crux of their findings: 

“[T]he criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use,” concluded the Commission, which included several conservative appointees of then-President Richard Nixon. “It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.

“… Therefore, the Commission recommends … [that the] possession of marijuana for personal use no longer be an offense, [and that the] casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense.”

While the Marijuana Commission did not have the political courage to propose full legalization with a regulated market, they nonetheless recognized the essential fact that there was no justification for treating marijuana smokers as criminals. And even without a legally regulated market, their recommendations, something we subsequently learned to call “decriminalization,” sought to end criminal penalties and arrests for the overwhelming majority of marijuana consumers. if implemented would eliminate approximately 90% of all marijuana arrests, a step well-worth supporting. 

Ironically, the National Commission on Marijuana and Drug Abuse came about as part of the Controlled Substances Act of 1970, an otherwise harsh anti-drug law that remains the federal law even today, and includes marijuana, along with drugs such as heroin, in Schedule I, the federal classification for the most dangerous drugs, and defines marijuana as having no accepted medical use!

The prior federal anti-drug law had been declared unconstitutional in a high-profile case involving Timothy Leary, the former Harvard professor famous for urging people to “Turn On, Tune In, and Drop Out.” Leary had been busted by the feds coming back into the country from Mexico with a significant quantity of marijuana in 1969 and given a 30-year prison sentence, and on appeal his lawyers argued the Marijuana Tax Act required him to violate his 5th Amendment protections against self-incrimination. The federal courts eventually agreed and threw the law out, leaving the federal government without any anti-drug act for a few months before enacting the Controlled Substances Act of 1970.

Congressman Ed Koch, a Democrat from New York City whose district included Greenwich Village (and who would later become its mayor) managed to get a provision added to the proposed anti-drug act to establish the National Commission on Marijuana and Drug Abuse as one small section in the new act. The commission was directed to conduct a two-year study, the first year focused on needed changes in the country’s marijuana policy and the second year to report on changes needed for other illegal drugs. 

When the final language of the proposed new federal bill was being debated, Koch agreed, as a concession to get more conservative support for his commission proposal, that marijuana would be temporarily listed in Schedule I, pending the recommendations from the commission’s first year report on marijuana. The commission’s subsequent report made it clear that marijuana was not a serious health risk, and should certainly not be kept in Schedule I. However, as we all know, the Congress ended up ignoring the Marijuana Commission’s recommendations and marijuana remains on Schedule I still today, both exaggerating its danger to the user and prohibiting its medical use under federal law.

But Congress had a strong incentive to pass a new federal law that could pass Constitutional scrutiny, and Nixon had little choice but to sign the bill, even with the Marijuana Commission provisions. And in late 1970 (about the same time we were starting NORML), the Controlled Substances Act of 1970 was passed by Congress and signed by President Nixon. 

And while Congress largely ignored the recommendations of the National Commission on Marijuana and Drug Abuse, the commission’s determination that marijuana smoking was not a serious threat to the health of the user or to society as a whole was the most important and credible argument for ending marijuana prohibition we had ever had at our disposal. It allowed NORML to take the decriminalization proposal to state legislatures all across the country, resulting in 11 states adopting decriminalization provisions for minor marijuana offenses between 1973 and 1978. (After 1978, the mood of the country turned more conservative.) 

In fact, the Marijuana Commission’s recommendations still today stand as the most sensible plan for dealing with marijuana to ever come out of the federal government.