| |
| META TOPICPARENT | name="SecondPaper" |
|---|
| |
<
< | Editing (7/11/12 - 9:18 PM) | >
> | 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. | | | | |
<
< | 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. | >
> | Prosecutorial Realism | | | | |
<
< | 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 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. | >
> | 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. “Why” the state prosecuted the men, therefore, can be more attributed to “why” they performed the act (cannibalism) rather than to “what” they did (homicide in survival conditions).
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. | | | | |
<
< | Explaining the Scheduling of Marijuana | >
> | Conclusion | | | | |
<
< | 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 | |
>
> | Both Regina v. Dudley and the DOJ’s recent actions illustrate the malleability of criminal law. The British state likely prosecuted Dudley and crew only because of their cannibalism, not because of the homicide. The United States likely prosecutes medical marijuana dispensaries due to the public’s image of marijuana consumption, not because we as a nation condemn patient’s relieving their pain with substances that cause side-effects. We must be mindful of this malleability, as those in power will always have the incentive to use it at the expense of the politically weak. | | | \ No newline at end of file |
|