PANACEA ONE DAY, POISON THE NEXT

When the 20th century began, it was illegal to sell cigarettes in 14
American States, and selling a lottery ticket was a federal crime.
Cigarettes were a "noxious" product, and "a belief in their deleterious
effects, particularly among young people, had become very general", the
Supreme Court said in 1900, as it upheld Tennessee's prohibition on
cigarette sales.

And lotteries were 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 catalogues as balms for what one
writer called the "nervous pace of modern life".

The evolution of US 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 behaviour have come and gone, riding on
the tides of public opinion. The criminal vice of one era - whether
drinking, gambling, smoking or drug-taking - often has been lauded at
another point in time as fashionable, or tolerated as simply a bad habit.

"Our notion of what is immoral behaviour 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 per cent of the inmates in
federal prisons have been put there for drug-related crimes, thanks 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 offence or whether they
were a minor player in a big drug ring. Of the more than 20,000 federal
drug offenders sent to prison last year, only 41 were identified as "drug
kingpins".

Yet, far from easing off, the Senate on a 50-49 vote moved last month 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 next year.

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

In the late 19th century, pipes and chewing tobacco 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, North Carolina. The legislature was entitled
to act for "the protection of the people from an unmitigated evil", such as
cigarettes, the State judges said.

The US 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 the
century. In 1915, Michigan imposed a 30-day jail term on anyone who
"harboured minors for indulgence in cigarettes".

Gambling was also 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 were confined to a few, a lottery
"infests the whole community", the 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 company 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 hayfever 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 mid-century, 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 nation 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.

As if to come full circle, the Supreme Court now has before it the question
of whether federal health regulators have the power, at least in theory, to
prohibit the sale of cigarettes. The case tests whether tobacco is a "drug"
and therefore comes under the control of the Food and Drug Administration.

If so, federal authorities could demand either that nicotine be removed
from cigarettes or that the product be banned entirely.

Meanwhile, the stigma of gambling and nearly all legal restrictions have
disappeared. All but Utah and Hawaii have some form of legal gambling and
37 States sponsor lotteries.

"People gambling in this country lost $50 billion in legal wagering in
1998, a figure that has increased every year over two decades, and often at
double-digit rates," the National Gambling Impact Study Commission reported
in June. "And there is no end in sight. Every prediction that the gambling
market is becoming saturated has proven to be premature."