De/Criminalization
The federal Marihuana Tax Act of 1937 was the first nationwide legislation in the United States to regulate the cultivation, sale, and use of marijuana. Two years earlier, starting in 1935, many states had adopted variations of the Uniform Narcotics Act, a piece of legislation promoted by Harry Anslinger and the Federal Bureau of Narcotics.
Wisconsin’s version of the Uniform Narcotics Act was signed into law by Gov. Philip La Follette on July 30, 1935, taking effect officially on January 1, 1936.
The articles here detail two of the earliest marijuana arrests in Wisconsin. As described in the article on the right, the first cannabis arrest occurred about a year and a half after the enactment of the state's new narcotics law when Herbert Campbell pleaded guilty to possession in September 1937.
A year after Campbell’s conviction, Dane County had its first arrest in October 1938 when Harold Thompson pleaded guilty to possession. The article on the left repeatedly identified Thompson as a “colored man," and such explicit reference to Thompson’s race was common for the time.
Many contemporary articles about drug use, particularly for marijuana, explicitly emphasized matters of race.
Reports that focused on the race and/or class of people arrested for marijuana drew on Anslinger’s “reefer madness” arguments to help further entrench the association between marijuana and both people of color and people of low socioeconomic status. (See the "Propaganda and Education" section of this exhibit for more information about the demonization of certain users of marijuana).
Marijuana remained illegal in Wisconsin and at the federal level throughout the twentieth century. But support for marijuana decriminalization grew after President Nixon implemented the Controlled Substances Act of 1971 alongside an official declaration of a “all-out offensive” against illegal drugs. Rates of incarceration for non-violent drug offenses rose to levels that drew ire from the public.
Marijuana activists argued that the penalties for possession of marijuana were more dangerous than the drug itself. Groups like the National Organization for the Reform of Marijuana Laws (NORML), led by Keith Stroup, organized around this momentum to lead a number of state-specific decriminalization movements across the United States.
Prior to these movements, however, Lloyd Barbee, who served as a state representative from Milwaukee from 1965 to 1977, introduced AB1023 in 1969 to legalize the cultivation, sale, and possession of marijuana.
The bill, which you can read below, ultimately did not become law. In fact, Barbee was the only vote in support.
What's more, as in the press release below, Barbee often vocally supported the decriminalization protests in the following years, even going so far as to write, "my belief is that all drugs—not just marijuana—should be legalized. The only desireable role of the state in this field," he concluded, "is to set standards and regulate the purity of drugs."
In Wisconsin and elsewhere during the 1960s, college students and members of the counterculture popularized the recreational use of marijuana. Madison, in particular, become known as a center of protest activity, and activists frequently advocated for changes to marijuana laws.
Protestors in Wisconsin held the first “marijuana harvest festival” on September 25, 1971, at Madison's Brittingham Park in response to the arrest on marijuana charges of Dana Beal, a marijuana activist and leader of the Youth International Party (Yippies). He was being held in Dane County jail at the time. Marijuana activists and yippies alike used posters like the examples below to raise funds for Beal’s defense. They gathered to protest Beal’s imprisonment, kicking off the first annual harvest festival. The judge in Beal's case eventually decided to release him on bond upon the request of his lawyers.
The Harvest Festival continues to this day, despite a hiatus due to the Covid-19 pandemic. These early events laid the groundwork for legislative attempts to decriminalize the possession of marijuana at a statewide level.
Footage of the first Marijuana Harvest Festival in 1971 in Madison's Brittingham park.
Filmed by Bob Wombacher Jr.. Footage courtesy of his son Bob Wombacher from YouTube.
In 1975, after a series of public hearings across the state, the Wisconsin Controlled Substances board issued a report about marijuana legislation titled, “Should Wisconsin Revise Its Marijuana Laws?” Following publication of the report, the board voted 4-2 to recommend decriminalization in Wisconsin. David Clarenbach, representative from Madison from 1975 to 1993, used this report to help frame and propel his own decriminalization legislation.
Clarenbach made three successive attempts—1977-1978, 1979-1980, and 1981-1982—to pass marijuana decriminalization in Wisconsin. Each of the bills ultimately failed, though. The first decriminalization effort gathered significant attention from activists who seized this opportunity to stage marijuana rallies in support of Clarenbach’s bills. The posters below were distributed prior to the first of these bills.
Despite these failures at the state level, some Wisconsin cities took matters into their own hands. In 1977, for example, Madison Ordinance 23.20 passed with 60% of the vote, officially decriminalizing possession of up to 25 grams of marijuana in the city. Many warned that the citywide decriminalization laws would be struck down since marijuana remained illegal in the state and nation, but ordinance 23.20 stands to this day. In fact, Madison recently overhauled the ordinance in fall 2020, further entrenching decriminalization in the city.
Other Wisconsin jurisdictions, including Milwaukee, Green Bay, Eau Claire, and La Crosse, have recently followed suit in decriminalizing or reducing penalties for cannabis possession.
Governor Tony Evers proposed legalizing and regulating the sale and possession of cannabis in his biennial 2021-23 budget proposal. Among his stated purposes were combating uneven marijuana sentencing practices and raising money to compensate for the effects of the Covid-19 pandemic. Legalization proponents claimed the bill would generate an estimated $165 million annually starting in 2023, but opponents in the state legislature blocked the effort.
In Wisconsin today, African-Americans remain 4.2 times more likely than other residents to be arrested on marijuana charges. Cities like Madison and Milwaukee argue that their decriminalization bills are a necessary but insufficient step towards remedying this disparity and that these ordinances may help advance statewide efforts at decriminalization and/or legalization. With Illinois and Michigan recently passing marijuana legalization laws, however, pressure may mount on Wisconsin to adapt its laws as neighboring states allow for the cultivation and possession of marijuana.
Further Reading
Booth, Martin. Cannabis: A History. MacMillan, 2005.
Dufton, Emily. Grass Roots: The Rise and Fall of Marijuana in America. Basic Books, 2017.
Grinspoon, Lester. Marihuana Reconsidered (Cambridge, MA: Harvard University Press, 1971).
Storck, Gary. The Rise and Fall of Cannabis Prohibition in Wisconsin. CannaBadger Media, 2019.
See also: Lloyd A. Barbee Papers, 1933-1982, Wisconsin Historical Society