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.

Cannabis legislation, like all laws 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 costs of the regulatory scheme engender political inertia. This democratic defect results in extraordinary social suffering and offers at least a plausible justification for judicial activism.

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. 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. 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.

Cannabis laws strongly 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. 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.

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.

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. This hesitation can be attributed to what Milton Friedman dubbed the “tyranny of the status quo.” 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. 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. They utilize campaign contributions, lobbying, and a network of relationships to discourage politicians from considering the incarcerated victims of these policies.

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.

-- AlexBuonocore - 16 May 2012