The Controlled Substances Act Turns 47

By David Jenison on May 1, 2018

Forty-seven years ago today, the Controlled Substances Act (CSA) went into law. President Richard Nixon signed the CSA legislation in October 1970, a year and a half after the U.S. Supreme Court declared the prevailing prohibition law unconstitutional. Prepared by Attorney General John Mitchell at the request of Nixon, the CSA created a regulatory structure for drugs, and the president made sure the law fully maintained cannabis prohibition. 

The CSA, which took effect May 1, 1971, established five Schedules to categorize controlled substances according to abuse potential, safety and medical value. Schedule I, the most restricted category, is reserved for highly addictive drugs that lack medical value and any level of safe use, even under medical supervision. Substances in this category cannot be prescribed or consumed under any circumstances, and very few (if any) clinical studies are permitted that involve the substance itself. In fact, the CSA made it a Class 1 federal felony for medical professionals and researchers to conduct legitimate studies on cannabis. Schedule II, meanwhile, is the most-restricted substance available with a prescription, and it includes drugs deemed to be addictive and dangerous but with some medical value. Schedules III to V involve progressively fewer restrictions.  

Nixon reestablished federal prohibition by categorizing cannabis and non-psychoactive hemp as Schedule I substances. This put cannabis in the same category as heroin, MDMA, mescaline, peyote, khat, ayahuasca, GHB, lysergic acid diethylamide (LSD), mushrooms and etorphine (an opioid 3,000 times stronger than morphine used to immobilize elephants). By comparison, Schedule II substances include crack cocaine, meth and opioids, which the CSA restricts less than cannabis. The Drug Enforcement Administration (DEA), which Nixon created to enforce the CSA, added cannabidiol (CBD) to the Schedule I list in 2016. 

A Vox/Morning Consult poll in 2016 found that 82 percent of Americans did not realize cannabis was a Schedule I substance. Moreover, the poll found that most people thought cannabis should be removed from the Schedules altogether. Interestingly, that was also the opinion of a new commission established to determine its placement. 

Congress set the original classifications, and the Schedule I status of cannabis was meant to be a temporary placement as the National Commission on Marijuana and Drug Abuse studied the plant. More commonly referred to as the Shafer Commission, the group included former Republican Governor Raymond Shafer, Republican Congressman Tim Lee Carter of Kentucky, Republican Senator Jacob Javits, Democratic Senator Harold Hughes of Iowa and a mix of medical doctors, college presidents, attorneys, psychiatrists and other politicians. 

In early 1972, Chairman Shafer delivered its findings to Congress in a report titled "Marihuana, A Signal of Misunderstanding" calling for an end to cannabis prohibition. 

"[The CSA] implies an overwhelming indictment of the behavior which we believe is not appropriate," said the report. "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.... Looking only at the effects on the individual, there is little proven danger of physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis."

The Commission attacked the "lurid accounts" of unsubstantiated cannabis-related atrocities and the constitutionality of prohibition in general for private consumption. "The use of drugs for pleasure or other non-medical purposes is not inherently irresponsible," noted the Commission in support of recreational use. "Alcohol is widely used as an acceptable part of social activities." 

This was not the report President Nixon wanted or expected. Publically released Oval Office transcripts show that Governor Shafer visited Nixon before the release of the report to warn him about the findings. In addition to saying people who fight cannabis prohibition are "not good people," Nixon warned, "You're enough of a pro to know that for you to come out with something that would run counter to what the Congress feels and what the country feels, and what we're planning to do, would make your commission just look bad as hell."

The Commission, to its credit, delivered the report and called for an end to prohibition. Cannabis remained a Schedule I drug, however, and a new congressional subcommittee was formed in 1974 to give a second opinion. Mississippi Senator James Eastland led the subcommittee. 

Eastland, a rich cotton plantation owner who viciously supported racial segregation, once said the Supreme Court decision to desegregate schools destroyed the Constitution. The so-called "Voice of the White South" regularly called African-Americans an inferior race, denied the Klu Klux Klan presence in his state and claimed the famous 1964 disappearance of three civil rights workers in Mississippi was merely a hoax. Public perception largely saw cannabis as a drug used by hippies, Latinos and African-Americans, which meant prohibition would naturally target these groups. 

Senator Eastland slammed the Shafer Commission findings and stressed the need to maintain the Schedule I status of cannabis. The CSA's prohibition of cannabis remains the law of the land to this day, despite 64 percent national support to end it. 

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