LAWS ON PERSONAL 'VICES' HAVE CHANGED GREATLY OVER THE YEARS

When the 20th century began, it was illegal to sell cigarettes in 14
states, and selling a lottery ticket was a federal crime.

Cigarettes are a "noxious" product, the Supreme Court said in 1900 as it
upheld Tennessee's prohibition on sales. And lotteries are a "widespread
pestilence" that must be killed off, the court ruled three years later. At
the same time, narcotics such as opium, morphine and heroin were sold over
the counter and from mail-order catalogs as balms for what one writer
called the "nervous pace of modern life." The evolution of U.S. 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 behavior have
come and gone, riding on the tides of public opinion.

"Our notion of what is immoral behavior has changed drastically," said Yale
law professor Steven Duke. "The pendulum has swung back and forth." 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 percent of the inmates in
federal prisons have been put there for drug-related crimes, due 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 offense or whether the violator was a
minor players in a big drug ring.

Yet, far from easing off, the Senate on a 50-49 vote moved in November 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 this year.

A century ago, narcotics were not seen as evil substances, although their
addictive qualities were becoming well known. Instead, lawmakers focused
their ire on cigarettes and gambling.

In the late 19th century, chewing tobacco and pipes 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, N.C. The legislature is entitled to act for
"the protection of the people from an unmitigated evil," such as
cigarettes, the state judges said.

The U.S. 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 this century. Gambling also was 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 are confined to a few, a lottery
"infests the whole community," the U.S. 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 Co. 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 hay fever 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 midcentury, 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 country 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 marijuana. Musto has tracked the
rise and fall of the temperance movements in alcohol and drugs over two
centuries. "The pattern has been repeated," he says: The opponents gain
steam but go too far, thereby spurring a backlash.