LEGAL WHEELS GRIND BACK TO SMOKING

Vices: At dawn of 20th century, the Supreme Court upheld a ban on
cigarettes. After a century's cycle of prohibitions, the high court again
considers tobacco.

WASHINGTON - When this 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, and "a belief in their deleterious
effects, particularly among young people, has become very general," the
Supreme Court said in 1900 as it upheld Tennessee's prohibition on
cigarette 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."

Judgments Depend on Public Opinion

The evolution of U.S. laws on personal vices make 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. 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 behavior has changed drastically," says Yale
law professor Steven Duke. "The pendulum has swung back and forth."

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% 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 anyone 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 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, lawmakers outlawed
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 1/8of cigarettes 3/8 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. In 1915, Michigan imposed a 30-day jail term on anyone who
"harbored 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 are confined to a few, a lottery
"infests the whole community," the high 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," says Yale historian
David F. Musto.

Federal Focus Shifted to Narcotics, Alcohol

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.

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
reformers gain steam but go too far, thereby spurring a backlash.

The oft-cited example was Prohibition, from 1920 to 1933, the most
notorious failure in American law. By most accounts, the strict banning of
alcohol made the problem of drinking worse, not better. As one wag said at
the time, Prohibition succeeded in replacing good beer with bad gin.

The temperance movement that led to Prohibition gained strength in the
early 1900s in small towns and rural areas by targeting saloons and
whiskey. Alcohol, "the devil's own drink," was said to ruin families and
cause poverty. Schoolchildren were taught in textbooks that alcohol "burns
off the skin" as it goes down the throat and "turns the liver from yellow
to green to black."

"If our Republic is to be saved, the liquor traffic must be stopped," the
Anti-Saloon League declared in 1914.

But the reach of this movement remained unclear, even to some of its
proponents.

The wording of the 18th Amendment to the Constitution, which established
Prohibition, banned the manufacture and sale of "intoxicating liquors."
Brewers and wine makers assumed that the ban did not apply to their
products, including a weak "war beer" that was sold to conserve grain. "War
beer" had an alcohol content of 2.75%, about half the level of most beers
today, and soldiers complained they could not get drunk on it.

By July 1919, the Prohibition amendment, approved by Congress in 1917, had
been ratified. The Los Angeles Times proclaimed in a headline: "Liquor Ban
to Be Rigorously Enforced. War Beer Not Stopped."

But Congress was controlled by the "drys" - people advocating a complete
ban on alcohol - and a year after ratification it adopted the Volstead Act
to implement the 18th Amendment. The act defined "intoxicating" beverages
as anything with more than 0.5% alcohol.

This meant that beer and wine, as well as whiskey and gin, were barred from
being sold legally in the United States.

Had the Volstead Act "allowed the sale of light wines and beer, 1/8the ban
on liquor 3/8 might have satisfied labor 1/8which strongly opposed
Prohibition 3/8 and the majority of their countrymen to this day," wrote
Andrew Sinclair in his 1962 history of Prohibition. "But it was all or
nothing for the drys, so they ended with nothing." The Prohibition
amendment was repealed in 1933 after the conviction became widespread that
it could not work.

"The failure of Prohibition led to the belief we couldn't do anything to
control alcohol," Musto said. "It wasn't until the 1980s that we began to
really go after drunk drivers."

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."