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.

Regina v. Dudley & Stephens

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.

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.

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.

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.

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

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.

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.

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.

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.

Conclusion

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