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.

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.

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?

Cannabis legislation, like all laws addressing principally private behavior,

Prohibiting the unlicensed distribution of a controlled substance is "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 cost of the regulatory scheme engenders political inertia. This democratic defect results in extraordinary social suffering and offers at least a plausible justification for judicial activism.

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

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.

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

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?

Supposing, however, that you're correct, and that in this as in most other respects, the criminal justice system does a better job catching low-status, marginal criminals than high-status, wealthy and respected criminals. Why is that an argument for changing the law on marijuana possession, as opposed to any or every other substantive criminal offense for which a pattern of discriminatory enforcement can be shown?

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.