Law in Contemporary Society

The Malleability of the Criminal Law

Regina v. Dudley & Stephens suggests the malleability of the criminal law because non-legal considerations may have influenced Dudley's prosecution. Ordinarily, the British may not have prosecuted a homicide performed in survival conditions, especially where the law precluded a valid conviction. The British, however, may have prosecuted Dudley with the extra-legal motivation of declaring the imperialist British as incapable of cannibalism.

Similarly, the Obama administration’s enforcement of marijuana’s Schedule I CSA status against California-based medical marijuana dispensaries may be motivated by extra-legal considerations. Marijuana’s scheduling, like the facts of Regina v. Dudley, does not fully explain enforcement because other non-controlled substances (notably, alcohol and tobacco) more fully conform to Schedule I criteria. Instead, the Obama Administration may be motivated by the political tactic of appearing hard on drugs, without appearing hard on medical patients.

Regina v. Dudley & Stephens

Simpson’s Cannibalism & the Common law, addressing Regina v. Dudley and Stephens (1884), suggests that extra-legal considerations contributed to a prosecution where otherwise none would have occurred. The non-deterrent and non-retributive nature of the conviction, along with the trial’s illegal procedure, suggests that extra-legal concerns motivated the prosecution.

The facts of R v. Dudley suggest that the prosecution was not motivated by deterrence considerations. Captain Dudley and three crewmen set sail from Southampton to deliver a small racing yacht to an Australian purchaser. A storm shipwrecked the yacht, forcing the crew to board an unmarked lifeboat. Hunger and thirst plagued the four seamen. The crew, acting under extreme duress, killed and consumed the cabin boy. These desperate circumstances suggest that even a clean conviction would be unlikely to deter similar action in the future.

That the men complied with sea custom also suggests a non-retributive motivation for the prosecution. British sea tradition permitted cannibalism under similar conditions, and the Falmouth public supported the returning men. 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.”

Legal errors complicate, if not invalidate, the prosecution and further suggest extra-legal motivation. Barron Huddleston pushed for conviction even though 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.

Though states use the criminal law as a vehicle for moral expression, I characterize the Dudley prosecution as extra-legal because the moral expression was independent of the convicted conduct. An extra-legal interpretation suggests that the imperialist state pushed for conviction as a self-referential proclamation against cannibalism (not against the convicted action, homicide).

The Scheduling of Marijuana

Similarly, extra-legal factors may influence the Obama administration’s policy of enforcing the medical marijuana prohibition against dispensaries. The legal explanation, marijuana’s CSA Schedule I status, does not fully explain enforcement because other non-controlled 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 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 the United States, especially when compared with alcohol and tobacco. In 2011, three states petitioned the DEA to consider rescheduling, citing numerous health professionals and organizations arguing a medical use. The federal government even distributed marijuana to medical patients under the “IND Compassionate Use Medical Marijuana Program,” which was only suspended in 1991. Additionally, a 2007 study appearing in the British medical journal, The Lancet, suggests that marijuana may have less potential for abuse than either alcohol or tobacco because marijuana inflicts less physical harm and creates less dependence than the two non-controlled substances.

Similar to how the Dudley facts did not fully explain the 1883 prosecution, the Schedule I (legal) criteria do not fully explain the prohibition against medical marijuana. Extra-legal factors, including political timing, may be influencing the DEA’s current policy of ignoring medical consumers while actively attacking medical marijuana dispensaries. Critics cite the looming election, arguing that the administration wishes to appear hard on drugs without appearing to restrict access to medicine for patients. In spite of the most recent Gallup poll (2003) indicating 75% Americans favor the legalization of medical marijuana, the administration may feel safe pursuing the current policy without mass backlash because the American public does not equate restricting access to marijuana-derived medicines to restricting access to, for example, opium-derived medicines (aspirin).


Both Regina v. Dudley and the DEA’s current policy 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 condemn medicinal substances with potential side-effects. We must be mindful of this malleability, and combat it when it interferes with the well-being of our clients and communities.

-- AlexBuonocore

I like the different focus on extra-legal factors motivating the prosecution as opposed to the conviction, since I think the analogy works better this way. But I think this paper gets a little confused when it conflates prosecution of medical marijuana dispensaries with the actual scheduling of marijuana which is done by Act of Congress, and of course Congressional action is extra-legal. It's political. And although the scheduling of marijuana doesn't line up with the factors, the fact that it is schedule 1 makes it legal per se.

I think this paper would be a little smoother if it made clear the distinction between prosecution of marijuana dispensaries and the actual scheduling of the drug by Congress. Both may be motivated by extra-legal factors, but one is making the law and the is enforcing it.

Anyway, I think this is a really good draft and I think it's much improved.

-- HarryKhanna - 02 Aug 2012


Webs Webs

r12 - 22 Jan 2013 - 20:09:45 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM