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< | 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. | >
> | Regina v. Dudley & Stephens suggests that extra-legal factors may influence the law’s application. Ordinarily, the British may not have prosecuted a homicide performed in survival conditions, especially where the law precluded a valid conviction. However, the British may have prosecuted Dudley with the extra-legal motivation of declaring the law-abiding British as incapable of committing cannibalism.
Similarly, the Obama administration’s enforcement of marijuana’s Schedule I status against California-based medical marijuana dispensaries may be motivated by extra-legal considerations. Marijuana’s CSA scheduling, like the facts of Regina v. Dudley, does not fully explain enforcement because other substances (notably, alcohol and tobacco) more fully conform to Schedule I criteria that are not prohibited. Instead, the Obama Administration may be motivated by the political tactic of appearing hard on drugs, without being hard on medical patients. The American public may not oppose this tactic as much as it would oppose legally dubious crackdowns on more conventional drug suppliers because the public may perceive medical marijuana consumption as distinct from traditional drug consumption. | | | | |
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< | Prosecutorial Realism | >
> | Regina v. Dudley & Stephens | | | | |
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< | 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. | >
> | Simpson’s Cannibalism & the Common law, addressing Regina v. Dudley and Stephens (1884), suggests that extra-legal factors (the desire to make a moral declaration against cannibalism) contributed to a prosecution where otherwise none would have occurred. The morally ambiguous facts of the case, the fact that the men were supported by maritime tradition, and the fact that the conviction may have been illegal, all suggest that extra-legal considerations influenced the prosecution. An alternative explanation suggests that a desire to vilify cannibalism spurred the prosecution. | | | | |
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< | 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. | >
> | The facts of R v. Dudley, because they do not evoke the same moral outrage as traditional homicide, suggest a non-legal motivation for the prosecution. Captain Dudley, along with three crew members, set sail from Southampton to deliver a small racing yacht to a purchaser in Australia. A storm shipwrecked the yacht, forcing the crew to board an unmarked lifeboat. Hunger and thirst plagued the four seamen. The crew, under extreme duress and faced with the prospect of acquiring no more food or drink, chose to kill and consume the cabin boy. These facts do not suggest unambiguous moral condemnation and plausibly justify a non-prosecution. | | | | |
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< | 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. | >
> | Additionally, the fact that the men complied with sea custom suggests an extra-legal explanation. British sea tradition permitted cannibalism under survival conditions similar to those experienced by Dudley & crew. 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). In accord with the tradition, the Falmouth public supported Dudley and the crew. | | | | |
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< | 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. | >
> | Legal errors complicate, if not invalidate, the prosecution and further suggest extra-legal motivation. Barron Huddleston pushed for conviction when he lacked jurisdiction over the incident. The crime occurred on an unmarked lifeboat in international waters. Barron Huddleston allegedly wrote a false statement of jurisdiction into the record by claiming that the lifeboat was a registered British vessel. | | | | |
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< | 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). | >
> | An extra-legal interpretation suggests the state pushed for conviction as a self-referential proclamation against cannibalism. We can interpret the conviction as stating, “We, the British, are morally bound to punish acts of cannibalism.” “Why” the state prosecuted the men, therefore, can be more attributed to “why” they performed the act (to eat Parker) rather than to “what” they did (homicide in survival conditions). | | |
Explaining the Scheduling of Marijuana | |
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< | 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. | >
> | Similarly, extra-legal factors may influence the Obama administration’s policy of enforcing the medical marijuana prohibition by attacking dispensaries. The legal explanation, marijuana’s CSA Schedule I status, does not fully explain enforcement because other non-prohibited substances (tobacco, alcohol) more closely conform to Schedule I criteria. Instead, enforcement may involve political strategy. The public may not resent the tactic because it may perceive medical marijuana as intellectual distinct from more traditional medicine. | | | | |
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< | 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. | >
> | Both alcohol and tobacco, neither of which is controlled, conform more closely to Schedule I criteria than marijuana, suggesting DEA discretion in choosing which substances to police. The DEA continues to list marijuana as a Schedule I drug under the Controlled Substances Act (“CSA”, 1970), precluding doctors from prescribing it (Schedule II drugs may be prescribed by doctors under strict controls). 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. | | | | |
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< | 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. | >
> | 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, especially when compared with alcohol and tobacco. 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. | | | | |
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< | 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). | >
> | Because Schedule I criteria does not fully explain enforcement against medical marijuana, extra-legal factors may have an influence. Political timing may be influencing the DEA’s current policy, which includes ignoring medical patient consumers while actively attacking medical marijuana dispensaries. Critics cite the looming election as an incentive for the DOJ’s recent actions. They argue that the administration wishes to appear hard on drugs, yet it does not wish to appear as curtailing access to medical patients.
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. | | | | |
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< | 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 | |
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< | 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 | |
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> | 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 with political motivations, not because we unilaterally condemns medicinal | | | \ No newline at end of file |
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