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

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