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< | This is an outline for my revised paper, which will replace this outline tomorrow (7/11/12). I want to emphasize that I received and acted upon Professor Moglen's advice of strictly editing my outline, rather than making quick edits to a fundamentally flawed paper. Publishing this outline online, even if no one ever views it, has forced me to clarify what exactly I was writing about, and what information I needed to defend it. Hopefully, the paper submitted tomorrow will demonstrate significant improvement as a result of my increased attention to structure. | >
> | Editing (7/11/12 - 9:18 PM) | | | | |
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< | ∙Thesis: The federal government’s prohibition of medical marijuana cannot be attributed to a strictly legal argument. Instead, extra-legal factors likely contribute to the DEA’s continued classification of marijuana as a Schedule I controlled substance. | >
> | The US DOJ announced in October 2011 that it would target medical marijuana shops for violations of the Controlled Substances Act. The four CA-based US attorneys have employed a strategy of threatening property owners with asset forfeiture lawsuits for leasing to shops that dispense medical marijuana in compliance with CA state law. The federal government’s continued prohibition of medical marijuana should not be dismissed as a merely legal matter. Extra-legal factors contribute to marijuana’s continued classification as a Schedule I controlled substance, precluding doctors from prescribing it for any medicinal benefit. | | | | |
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< | 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.
- 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
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- ∙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
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- 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 | >
> | Prosecutorial Realism
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 | | | \ No newline at end of file |
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