I like the different focus on extra-legal factors motivating the prosecution as opposed to the conviction, since I think the analogy works better this way. But I think this paper gets a little confused when it conflates prosecution of medical marijuana dispensaries with the actual scheduling of marijuana which is done by Act of Congress, and of course Congressional action is extra-legal. It's political. And although the scheduling of marijuana doesn't line up with the factors, the fact that it is schedule 1 makes it legal per se.

I think this paper would be a little smoother if it made clear the distinction between prosecution of marijuana dispensaries and the actual scheduling of the drug by Congress. Both may be motivated by extra-legal factors, but one is making the law and the is enforcing it.

Anyway, I think this is a really good draft and I think it's much improved.

-- HarryKhanna - 02 Aug 2012

The Malleability of the Criminal Law

Regina v. Dudley & Stephens

The Scheduling of Marijuana

Conclusion

I have a few comments, if you're still interested in editing this. I'm not totally on board with calling the DEA raids on marijuana dispensaries extra-legal in the same way Regina v. Dudley and Stephens was.

Your paper suggests that Dudley and Stephens were not within the jurisdiction of the court, and in any case they should have been acquitted on account of necessity. The DEA raids on medical marijuana are plainly authorized by federal law. Marijuana is a Schedule I drug. You correctly point out that the scheduling of marijuana is not reconcilable with the Schedule I criteria. But it's still scheduled there, so I don't see how the DEA's actions are extra-legal. Poor scientific policy and a waste of resources, to be sure. But barring constitutional issues, what's written in the US Code can't, by definition, be extra-legal. At the time of Dudley and Stephens, the court's lack of jurisdiction and the necessity defense were the law of land and they were fudged or ignored by the Court, so the Court acted extra-legally.

Just my US$0.02. Also, I think the end of the paper got cut off. Is it just missing the last word "marijuana?"

-- HarryKhanna - 17 Jul 2012

Regina v. Dudley & Stephens

The 2011 Gallup poll indicates that 70% of Americans favor the legalization of medical marijuana. This popular support, however, has not clearly translated into backlash against federal policy. This absence may be attributed to marijuana’s unconventional method of consumption. The public likely perceives medical marijuana consumption for cancer patients as visually similar to recreational consumption (i.e. smoke ingestion). Because smoking is foreign to our visualization of proper health, we (American public) likely perceive marijuana consumption as somehow different from consumption of other drugs (aspirin). Depriving a cancer patient of a marijuana cigarette feels different than depriving her of a pill, even if the medical effect is the same.

Prosecutorial Realism

Explaining the Scheduling of Marijuana

Borrowing from Simpson’s and the class’ analysis, I now wish to broach the question of “why” the DEA continues to list marijuana as a Schedule I drug. Marijuana does not fit neatly into Schedule I classification and the substance has medical applications that many non-controlled substances (tobacco and alcohol) do not. Instead, I argue that the prohibition and enforcement against marijuana as a medical substance is a political maneuver of an executive administration that does not wish to appear soft on drugs. I attribute the lack of popular backlash, which one would expect to follow the prohibition of opium-derived drugs (aspirin, morphine), to a highly successful 1930s smear campaign that continues to mold attitudes towards the substance.

Federal law prohibits doctors from prescribing marijuana to patients because the DEA continues to list the substance as a Schedule I controlled substance under the Controlled Substances Act (CSA, 1970). If the DEA rescheduled marijuana to Schedule II, doctors could prescribe the substance under strict controls (marijuana would remain illegal for recreational use). Marijuana’s current scheduling has evoked criticism because it is not clear that marijuana falls within the legal definition of a Schedule I drug. Under 21 U.S.C. §812b, drugs must meet three criteria to be placed in Schedule I. (1) The drug… has a high potential for abuse, (2) the drug… has no currently accepted medical use in treatment in the United States, and (3) there is a lack of accepted safety for use of the drug or other substance under medical supervision. On July 8, 2011, the DEA ruled, based on the Department of Health and Human Services’ findings, that marijuana has “no accepted medical use in the United States” and should therefore retain its Schedule I status.

A history of medical application and widespread criticism from the medical community cast doubt on the finding that marijuana has no accepted medical use in treatment in the United States. Prior to its scheduling in 1970, the Western world widely utilized marijuana for a variety of medical afflictions. In the 19th century, French psychiatrist Jacques-Joseph Moreau conducted studies finding cannabis to treat a variety of conditions (headaches, poor appetite, insomnia etc). Marijuana entered the US official public standards setting authority for medicines, the US Pharmocopeia, in 1850 and remained listed until 1942. The federal government even distributed marijuana to medical patients under the “IND Compassionate Use Medical Marijuana Program,” which was only suspended in 1991. The modern health community has also lent support to marijuana’s efficacy as a medicine. In 2011, three states petitioned the DEA to consider rescheduling, citing numerous health professionals and organizations arguing a medical use. Borrowing from the Dudley discussion, the debate within the medical community concerning medical marijuana’s efficacy is not “why” marijuana is classified as a Schedule I drug. The medical community suggests that neither tobacco nor alcohol have any accepted medical uses, they both have high potential for abuse, and there is no accepted safety use under medical supervision for either drug. Yet neither drug is a controlled substance. To understand “why” marijuana is controlled, therefore, an additional explanation must be offered.

The most recent Gallup poll indicates that 70% of Americans favor the legalization of medical marijuana (which would be accomplished by a schedule change). This popular support, however, has not translated into backlash against federal policy. This absence of backlash can be attributed to marijuana’s unconventional method of consumption. The public likely perceives medical marijuana consumption for cancer patients as visually similar to recreational consumption (i.e. smoke ingestion). Because smoking is foreign to our visualization of proper health, we (American public) likely perceive marijuana consumption as somehow “different” from consumption of aspirin. Depriving a cancer patient of a marijuana cigarette feels different than depriving her of a pill. (Keep in mind, however, that marijuana could be consumed by much safer means).

Furthermore, marijuana’s status as a controlled substance does not explain “why” the DOJ has prosecuted medical marijuana dispensaries that comply with state law. The Obama administration has publicly acknowledged that it would not use the CSA to target medical patients themselves, indicating enforcement discretion. Unfortunately, timing may be playing a role into whether patients have access to the drug. Critics cite the looming election as an incentive for the DOJ’s recent actions, arguing that the administration does not want to appear soft on drugs.

Conclusion

Simpson’s Cannibalism & the Common law, addressing Regina v. Dudley and Stephens (1884), explores the idea that the criminal law can be used to express moral disapproval of an activity that is only tangentially related to the previously prohibited action. Though Barron Huddleston convicted the crew members of murder, we explored the suggestion in class that the state only prosecuted the murder because it involved an act of cannibalism.

The facts of R v. Dudley, because they do not evoke the same moral outrage as traditional homicide, suggest that something other than homicide provoked the prosecution. Captain Dudley, along with three members, set sail from Southampton, England to deliver a small racing yacht to a purchaser in Australia. A storm shipwrecked the yacht, and the crew boarded an unmarked lifeboat. Hunger and thirst plagued the four seaman. Though testimony conflicted on how, exactly, the men chose to kill the cabin boy, the men slayed and consumed Richard Parker.

In addition to the fact that the lifeboat’s conditions preclude moral criticism of the survivors, the men’s decision did not conflict with sea custom. Simpson notes that the men did not expect to be arrested when they returned to England. When making statements on the loss of crew and cargo, “the sailors certainly did expect to be allowed to leave for home” (9). “All three were quite astonished at being arrested” (10). The public opinion in Falmouth was entirely on the side of Captain Dudley and the crew.

The fact that Barron Huddleston pushed for the conviction, in spite of the legal errors in the case, further suggests that the state had an interest independent of prosecuting an ordinary homicide. An English court exercised jurisdiction over the incident when it did not have the legal power to do so. The alleged crime occurred on a lifeboat in international waters. Furthermore, the lifeboat was not a registered English vessel.

Finally, as Professor Moglen noted in class, the judicial opinion almost certainly would not deter the targeted activity (homicide in survival conditions). A more reasonable, extra-legal interpretation is that the state pushed for conviction as a self-referential proclamation against cannibalism. The conviction can be interpreted as stating, “We, the British, are morally bound to punish acts of cannibalism.” As further noted in class, the men were adamantly open about the homicidal act, yet each of them lied about how much of Richard Parker they consumed.

Explaining the Scheduling of Marijuana

The classification of marijuana as a schedule I drug, precluding its use as a medical substance, cannot be understood in strictly legal terms. A plausible extra-legal explanation suggests that the prohibition expresses disapproval of a means of drug ingestion (smoking), rather than disapproval of drug ingestion itself.

The scheduling of marijuana cannot be explained as a mere consequence of historical opposition to the substance. Rather, marijuana was commonly used as a medicinal substance prior to its scheduling in 1970. In the 19th century, cannabis emerged as a mainstream medicine in the west. French psychiatrist Jacques-Joseph Moreau conducted studies finding cannabis to (1) suppress headaches, (2) increase appetites, and (3) aid sleep. In the US, marijuana entered the US Pharmocopeia (the official public standards setting authority for prescription and OTC medicines) in 1850 and was listed as treating a variety of afflictions. In the 1930s

1. Simpson’s Cannibalism & the Common Law (1964), addressing Regina v. Dudley and Stephens (1884), establishes that the criminal law can be used to express moral disapproval of an activity that is only tangentially related to the previously prohibited action. Though Barron Huddleston convicted the crew members of murder, he likely convicted the members due to their acts of cannibalism. ∙The facts of R v. Dudley do not evoke the same moral outrage as traditional homicide ∙Captain Dudley, along with three crew members, was delivering a small racing yacht from Southampton, England to a buyer in Australia ∙the yacht was shipwrecked in a storm, and the crew boarded a lifeboat ∙though testimony conflicted on how, exactly, the men chose to kill the cabin boy, they eventually killed and ate Richard Parker ∙The facts did not conflict with sea custom ∙the men did not expect to be arrested ∙when making statements on the loss of crew/cargo, “the sailors certainly did expect to be allowed to leave for home” (9) ∙”all three were quite astonished at being arrested” (10) ∙public opinion in Falmouth was entirely on the side of Dudley/crew ∙common feeling that the act was immoral but unpunishable ∙Barron Huddleston pushed for conviction even though there were legal errors ∙English court exercised jurisdiction, even though the lifeboat was in international waters and was not a registered English vessel ∙As Professor Moglen noted in class, the judicial opinion almost certainly would not deter the targeted behavior (cannibalism), and forgery precludes a strictly formalistic interpretation of the vents ∙A more reasonable, extra-legal interpretation is that they pushed for conviction as a self-referential proclamation against cannibalism ∙notably, the men were adamantly open about the homicide, but not about how much of the boy they ate

2. The federal prohibition of medical marijuana cannot be understood in strictly legal terms. A plausible extra-legal explanation suggests that the prohibition expresses disapproval of a means of drug ingestion (smoking), rather than disapproval of drug ingestion.

1. Historically, the federal ban on medical marijuana is relatively recent ∙In the 19th century, cannabis emerged as a mainstream medicine in the west ∙French psychiatrist Jacques-Joseph Moreau conducted studies finding cannabis to (1) suppress headaches, (2) increase appetites, and (3) aid sleep ∙In 1850, marijuana entered the US Pharmacopeia (the official public standards setting authority for prescription and over-the-counter medicines) and was listed as treating a variety of afflictions ∙Even after many individual states banned cannabis during the 1910s, marijuana was still widely used for medicinal purposes in the first half of 20th century

   ∙1937

   AMA opposed tax on MJ b/c future investigation may reveal substantial medical uses

   ∙1942

   Marijuana removed from the US Pharmacopeia ∙the federal government itself has been involved with the distribution of medical marijuana

B. The classification of MM as a schedule I drug is legally troubling

1. 1. Marijuana was originally only tentatively classified as a schedule I drug ∙1970, Congress passed the Controlled Substances Act (CSA) as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ∙Part F of the act established the “Shafer” commission to study marijuana abuse in the US and to recommend scheduling placement ∙recommended against criminal prohibition, even for recreational uses

ii. Numerous medical professionals disagree with marijuana’s scheduling, and top officials from three states petitioned the DEA to reconsider the scheduling in 2011

iii. Marijuana’s scheduling prevents potential benefactors from receiving the drug ∙Schedule I classification precludes doctors from prescribing the drug, whereas schedule II classification would allow prescription under severe restrictions

iv. Marijuana’s scheduling is not due to international treaty obligations ∙Court found that US could comply with international treaty with schedule II classification

C. An alternative explanation suggests that ∙A legal realist would suggest election incentives ∙enforcement to suggest that he is not weak on drugs, backdoor enforcement to suggest that he does not attack patients ∙Why there is not greater public backlash, however, can be attributed to the non-traditional method of ingesting the medication ∙though the most recent gallup poll reveals a majority supporting the regulation of medical marijuana, there is not backlash against the prohibition as would be expected if, for example, Ritalin was pulled from the market ∙smoking is not visually or intellectually connected with good health ∙so, the public does not make the connection that denying a cancer patient a dose of THC is (if future research supports) medically equivalent to denying them other pain killers

What has this to do with the text below? There's nothing about criminalizing marijuana possession and distribution which affects the political process, like, for example, legislative districting.

What's the difference between the "democratic mandate" to prohibit possession and distribution of marijuana and that to prohibit the possession and distribution of heroin or cocaine?

Prohibiting the unlicensed distribution of a controlled substance is "addressing principally private behavior"?

A law you disagree with becomes a "democratic defect"?

What does this mean? All prosecutions are public, and almost all acts of prosecutorial discretion, regardless of the offense, are not public.

Is this supposed to imply that white peoples' marijuana is overlooked by the cops all the time, and other peoples' marijuana isn't? That policemen are overlooking large numbers of possible felony arrests, and that this has no "professional repercussions"? You do know, right, that police officers are expected to make arrests, and are not promoted, and are given undesirable assignments, if they don't? Where is the evidence for your assertion?

Furthermore, significant evidentiary issues permit enforcement agents to selectively prosecute political minorities. Because arrestees cannot prove discriminatory intent on behalf of arresting officers, police and their departments possess the power to enforce cannabis laws arbitrarily and discriminatorily.

"Political" minorities? What's that about?

Cannabis laws appear to be discriminately enforced against blacks and Hispanics, despite statistics suggesting greater use amongst whites. Ideally for this article, statistics would be available concerning incarceration by race as a result of marijuana related offenses. While this data does not appear available (marijuana-related offenders tend to have other drug convictions as well), research indicates that the US drug prison population is massive, the US prison population is disproportionately black and Hispanic, and that marijuana convictions are a substantial contributor to both the total prison population and the black/Hispanic prison population.

In other words, you have no evidence for the assertion, but you're going to give lots of other statistics about other subjects, to make up for the fact that you can't show any support for what you assert?

A 2009 Bureau of Justice study found that the most serious convictions for the 242,200 prisoners housed in the US state prisons involved illicit drugs. A 2006 Bureau of Justice study found that 12.7% of these state prisoners were incarcerated specifically for marijuana related offenses. A 2003 Human Rights Watch study found that blacks represent one-third of all drug arrests. Of those individuals convicted of drug offenses, 71% of blacks were incarcerated in contrast to only 63% of convicted white drug offenders. While narcotics are not the sole contributor to the statistic, it is disturbing to note that, as of 1998, one in every 20 black men over the age of 18 was incarcerated in state or federal prison. By contrast, only one in every 180 whites over the age of 18 was incarcerated. In terms of economics, the (admittedly biased) pro-reform group NORML estimated in 2007 that marijuana prohibition costs taxpayers more than $40 billion per year.

NORML naturally thinks that there would be no costs of not prohibiting marijuana. Do you have any estimate of the costs from somewhere else? Why, if the real point is that marijuana prohibition is pointlessly wasteful, are you bothering to argue that it's discriminatory? If enforcement of the regulation is discriminatory, should we abandon the regulation regardless of whether it's otherwise desirable?

In spite of these massive social and economic costs, democratic defects preclude Congress from responding to appropriate democratic pressures. Ordinarily the judiciary justifiably defers to Congress’ legislative decisions because the elected legislature theoretically responds to the will of the people (the McCulloch? standard). However, the judiciary is justified in limiting this deference where defects of the democratic process result in prejudice. The Court tends to strictly scrutinize statutes that classify on the basis of race, for example, because of Congress’ history of passing racially biased laws. Should cannabis prohibition present a similar democratic defect, then the judiciary would be theoretically justified in scrutinizing the existing legislation with greater activism.

This is completely confusing. What "democratic defect" prevents Congress from considering legalization? There are no rules or procedures that would prevent it, but there is also no political interest in doing it because representatives don't believe it's what their constituents want. I see no "democratic defect" yet. Then you say (mixing up the John Hart Ely question of "representation reinforcing review" with the standard equal protection jurisprudence) that racially classificatory legislation must meet strict scrutiny. This has nothing to do with the subject, because the laws prohibiting unlicensed distribution of controlled substances aren't racially classificatory. Then you say, on no evidence I'm aware of, that all Congressional legislation should be subject to heightened scrutiny because Congress has a "history of passing racially biased laws." This supposed general principle of strict scrutiny, however, should apply with "greater activism" if "cannabis prohibition present[s] a similar democratic defect," which it doesn't.

With the costs of prohibition increasing, popular support waning, and the United States’ fiscal sensitivity, it’s politically strange that Congress has not reconsidered cannabis prohibition.

Might you have some polling data to show any of this supposed political strangeness? The most recent data I know of seem to me fairly straightforward and relieve me of any sense of strangeness. Looks to me like opinion is shifting, but it hasn't shifted decisively yet, particularly among most voters in most parts of the US. You could argue otherwise on the basis of the data, to be sure, but you don't even present any.

This hesitation can be attributed to what Milton Friedman dubbed the “tyranny of the status quo.”

Weasel words. The "hesitation," like all phenomena, can be attributed to anything, including the bad weather in Washington. But "can be attributed" is not an argument. Why not attribute political inaction to the polling data showing that voters will not reward their representatives for championing legalization?

This term refers to the idea that once expensive regulatory legislation is in place, interested beneficiaries will prevent repeal because they will fight against any unsupportive politicians. Meanwhile, the burden of the legislation is diffused amongst all taxpayers, none of whom has as strong incentive to repeal as the beneficiaries do to reject repeal.

With respect to cannabis prohibition, political inertia has obstructed talks about repeal at the national level.

What does "political inertia" mean, except that those with the burden of forcing a change don't have the necessary political support to make it happen?

Notably, it is unclear if the prohibition had popular support at the onset. When Congress passed the Comprehensive Drug Abuse and Control Act of 1970, it created the “Shafer Commission” to report on the effects of cannabis and other drugs and to recommend policies. The report concluded that “Marihuana’s relative potential for harm to the vast majority of individual users and its actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it”. Forty years later, the public mandate is even less clear. Repeal at the federal level, however, is rarely mentioned. Interested beneficiaries, most notably police unions and private prison corporations, employ a three-pronged approach to prevent political reconsideration. According to the Justice Policy Institute, private prisons utilize a three-pronged approach consisting of campaign contributions, lobbying, and a network of relationships to discourage politicians from considering the incarcerated victims of these policies.

You don't cite any source. The source you cite will be discussing the "war on drugs," which is not your subject.

Cannabis prohibition should not be considered a mere inconvenience to social progressives. It should be considered a source of great human suffering, disproportionately burdening the politically weak for the financial benefit of few. If judicial activism is warranted when democratic defects preclude the legislature from responding to the majority, then judicial activism is warranted to reduce the burden that cannabis prohibition places on our society.

This isn't the conclusion of the preceding argument: it's a statement that your particular cause is important. Can we insert the word "cocaine" instead? If not, why not? How about "crystal meth," "crank" or "Oxycontin"?

This draft seems to me to reflect the same problems we've seen in other first drafts. You don't argue carefully, with restraint, or with attention to the details of evidentiary support. Your real subject, which is your belief that marijuana should be legalized, is presented in the midst of other arguments or materials (the fourth footnote of Carolene Products, the problem of racially-discriminatory law enforcement, the politics of deregulation) that are at best tangentially related. If marijuana enforcement resulted in prosecution of all racial groups in precise proportion to their place in the population, you would still be against it. But if the population of the US completely supported enforcement, you would have the Supreme Court invalidate the regulation because it is being enforced (perhaps, you have no data) in a racially discriminatory fashion, though many other laws might also be enforced in a racially discriminatory fashion, and you are not suggesting that any law discriminatorily enforced should be substantively invalidated. (This would indeed be a strange proposition to support, and is therefore odd to watch you invoke, as it were, discriminatorily.)

As with each of your other drafts, the next step is to decide what you're really writing about, and to outline the essay on that subject quite strictly. Get data not in order to improve your rhetoric, but in order to learn about society. Show that you have considered points of view other than your own, and are discussing rather than shouting. Persevere, rather than jumping from thought to thought in the face of resistance.

Because of the date, I realize it is unrealistic to expect you to perform a deep edit of this paper. However, I still believe I can convey my commitment and improvement to you. This second paper is a research oriented policy argument. I will rewrite my first paper, and it will be a reflective piece on my pro bono work this summer. Lastly, I will rewrite my Bartleby analysis based on the comments you gave me. These three papers will offer writing samples on reflection, policy, and your readings, and will feature two edits made after you had commented on my work. I believe that this will show my commitment to my own legal development and will also show a significant improvement over the quality of my earlier drafts. This work will be completed no later than Friday, May 18.

AlexBuonocore - 16 May 2012

Over the classes in which we discussed Dudley v. Stevens, Professor Moglen proposed the idea that, historically, the criminal law has been used to suppress the poor and/or the politically weak. The criminal law in contemporary United States engenders this same effect. By accident or by design, the weight of our criminal system disproportionately burdens politically vulnerable minorities, specifically blacks and Hispanics. This paper will address cannabis prohibition and will argue that the legislation has ravished our nation’s minority population, without a clear democratic mandate to do so.

Cannabis legislation, like all laws addressing principally private behavior, grants enforcement agents undue discretion. This discretion has proven to be particularly invidious, as cannabis prohibition has resulted in disproportionate incarceration of blacks and Hispanics. The legislature has failed to reconsider criminalization because the immense costs of the regulatory scheme engender political inertia. This democratic defect results in extraordinary social suffering and offers at least a plausible justification for judicial activism.

Laws addressing private behavior should be treated with skepticism because they result in undue discretion for enforcement officers. Unlike with laws addressing public behavior, the enforcement of laws addressing private behavior is not broadcast to the public. A police officer discovering a moderate amount of cannabis during a stop-and-search can choose to either make an arrest or not, and he is unlikely to face professional repercussions either way. Furthermore, significant evidentiary issues permit enforcement agents to selectively prosecute political minorities. Because arrestees cannot prove discriminatory intent on behalf of arresting officers, police and their departments possess the power to enforce cannabis laws arbitrarily and discriminatorily.

Cannabis laws strongly appear to be discriminately enforced against blacks and Hispanics, despite statistics suggesting greater use amongst whites. Ideally for this article, statistics would be available concerning incarceration by race as a result of marijuana related offenses. While this data does not appear available (marijuana-related offenders tend to have other drug convictions as well), research indicates that the US drug prison population is massive, the US prison population is disproportionately black and Hispanic, and that marijuana convictions are a substantial contributor to both the total prison population and the black/Hispanic prison population. A 2009 Bureau of Justice study found that the most serious convictions for the 242,200 prisoners housed in the US state prisons involved illicit drugs. A 2006 Bureau of Justice study found that 12.7% of these state prisoners were incarcerated specifically for marijuana related offenses. A 2003 Human Rights Watch study found that blacks represent one-third of all drug arrests. Of those individuals convicted of drug offenses, 71% of blacks were incarcerated in contrast to only 63% of convicted white drug offenders. While narcotics are not the sole contributor to the statistic, it is disturbing to note that, as of 1998, one in every 20 black men over the age of 18 was incarcerated in state or federal prison. By contrast, only one in every 180 whites over the age of 18 was incarcerated. In terms of economics, the (admittedly biased) pro-reform group NORML estimated in 2007 that marijuana prohibition costs taxpayers more than $40 billion per year.

In spite of these massive social and economic costs, democratic defects preclude Congress from responding to appropriate democratic pressures. Ordinarily the judiciary justifiably defers to Congress’ legislative decisions because the elected legislature theoretically responds to the will of the people (the McCulloch? standard). However, the judiciary is justified in limiting this deference where defects of the democratic process result in prejudice. The Court tends to strictly scrutinize statutes that classify on the basis of race, for example, because of Congress’ history of passing racially biased laws. Should cannabis prohibition present a similar democratic defect, then the judiciary would be theoretically justified in scrutinizing the existing legislation with greater activism.

With the costs of prohibition increasing, popular support waning, and the United States’ fiscal sensitivity, it’s politically strange that Congress has not reconsidered cannabis prohibition. This hesitation can be attributed to what Milton Friedman dubbed the “tyranny of the status quo.” This term refers to the idea that once expensive regulatory legislation is in place, interested beneficiaries will prevent repeal because they will fight against any unsupportive politicians. Meanwhile, the burden of the legislation is diffused amongst all taxpayers, none of whom has as strong incentive to repeal as the beneficiaries do to reject repeal.

With respect to cannabis prohibition, political inertia has obstructed talks about repeal at the national level. Notably, it is unclear if the prohibition had popular support at the onset. When Congress passed the Comprehensive Drug Abuse and Control Act of 1970, it created the “Shafer Commission” to report on the effects of cannabis and other drugs and to recommend policies. The report concluded that “Marihuana’s relative potential for harm to the vast majority of individual users and its actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it”. Forty years later, the public mandate is even less clear. Repeal at the federal level, however, is rarely mentioned. Interested beneficiaries, most notably police unions and private prison corporations, employ a three-pronged approach to prevent political reconsideration. They utilize campaign contributions, lobbying, and a network of relationships to discourage politicians from considering the incarcerated victims of these policies.

Cannabis prohibition should not be considered a mere inconvenience to social progressives. It should be considered a source of great human suffering, disproportionately burdening the politically weak for the financial benefit of few. If judicial activism is warranted when democratic defects preclude the legislature from responding to the majority, then judicial activism is warranted to reduce the burden that cannabis prohibition places on our society.

-- AlexBuonocore - 16 May 2012