January 25, 2013
How will social conservatives react when medical marijuana meets parental rights?In this lengthy post, I suggested that positions on modern marijuana policies may now provide an effective means to distinguish bewteen social conservatives (who will generally oppose reforms and favor big government prohibition policies) and fiscal conservatives (who will be open and perhaps eager to get the cost savings from scaling back this seemingly inefficient part of the government's drug war). But this new local article from Oregon, which is headlined "Oregon family uses medical marijuana to manage son's autistic rage," prompts the question in the title of this post and lead me to think marijuana reform advocates might seek to sway some social conservatives by highlighting medical marijuana stories that implicate parental rights to raise and help their children as they see fit. Here are the basics of the story prompting this thinking:
An Oregon family has turned to medical marijuana to manage their son's severe autistic rage. "It was indescribable, it was horrifying," said Jeremy Echols, father of 11-year-old Alex. "When you've got no other options, are you honestly gonna say no?"
Eleven-year-old Alex Echols is severely autistic, and his doctor said Alex's self-destructive behavior is brought on by Tuberous Sclerosis, a rare, genetic disorder that affects about 50,000 people in the U.S. The disorder causes unregulated growth of non-malignant tissue in organs. In Alex's case, his neurologist said growths in Alex's brain have led to seizures and autism....
Echols said by the time Alex was 5, he exhibited intense, self-directed rage. Echols showed us home videos of the rage. He said they videotaped the episodes to show doctors the injuries were self-inflicted. Echols said Alex head butted anything he could. He said the boy bruised his forehead so badly, the blood would drain down until Alex's entire face was black and blue. His parents got him a helmet to protect his head, swaddled him like a newborn and tried mood-altering drugs to control the behavior, with little success.
Alex's daily, violent behavior became the Eugene family's new normal. When he was eight years old, the Echols made the heartbreaking decision to move Alex into a state-funded group home. "It was like we were throwing him away, like we were giving him to somebody else and saying, 'Sorry buddy, you're not part of the family anymore,'" he said. "It was pretty rough." But was there a way to help him?
In late 2009, the Echols said they saw a television news story about a California woman who was using medical marijuana to treat her autistic son. The Echols researched Oregon's medical marijuana program, and in 2010, a doctor approved Alex for medical marijuana use. "We tried the (marijuana) brownies, we tried butter for cookies," he said.
Alex is now one of 58 minors currently protected under the Oregon Medical Marijuana Act. While autism is not a qualifying medical condition like cancer or severe pain, in Alex's case, his seizures were. And after a few months of treatment, the Echols said they saw a dramatic improvement. "He went from being completely, yelling, screaming, bloodying his face, to within an hour, hour and a half, he would be playing with toys, using his hands," he said. "Something that at that time was almost unheard of."
Echols said Alex's group home will not administer the marijuana, so, about three times a week off-site, his parents give Alex a liquid form of the drug by mouth. The dosage is up to the parent and Oregon law does not require a doctor to monitor a child's medical marijuana use. In fact, Alex's neurologist didn't know about the alternative treatment, until we told him.
While Dr. Roberts did not condone the treatment, he said he understood the family's desire to help their child. "Alex's parents are wonderful people." he said. "I certainly am very much with them in my desire to help Alex. All of us want to help Alex."
The American Academy of Pediatrics has circulated a resolution that opposes the use of medical marijuana in children. Dr. Sharon Levy, an assistant professor of pediatrics at Boston's Children's Hospital and chairwoman of the AAP's committee on substance abuse, told FOX 12 marijuana is toxic to children's developing brains. She also said enough isn't known about the drug's long-term effects.
"For us, the long-term side effects that are unknown for something that can't kill him are a lot better than the long-term side effects of him beating himself bloody," Echols said. The Echols also said they're not advocating the use of medical marijuana for all autistic children, but they say those who walk a mile in their shoes may not consider the treatment so extreme. The Echols have set up a Facebook page that chronicles Alex's journey. You can find their blog at www.facebook.com/alex.autism.rage.mmj.
Among other issues that this interesting story raises is my enduring question/concern about whether and when we will ever hit constitutional limits on federal authority to enforce its steadfast commitment to pot prohibition. Though I certainly hope this is only a hypothetical question, I still wonder whether readers (particularly those supporting federal pot prohibition) would agree with my belief that the Echols would and should have some kind of federal constitutional defense — based on substantive due process, perhaps — if local federal prosecutors were to seek to prosecute and severely punish the Echols for knowingly and repeatedly distributing a Schedule I drug to their child.
A few recent and older related posts:
- Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
- Are there constitutional limits on severe mandatory federal punishments for those complying with state marijuana laws?
- If force to choose, would you legalize marijuana or prohibit tobacco?
- Intriguing new comments from President Obama on federal pot prohibition policy
- "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
- Female voters seen as key to success of pot reform initiatives
- "Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- "California inspired — and now inspired by — other states' marijuana legalization measures"
- Proof of prohibition's failings?: teens now smoke pot more than tobacco
- "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"
- Is new brain science now suggesting football is more dangerous than marijuana for kids?
January 25, 2013 at 10:48 AM | Permalink
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1. One extreme, heartbreaking case is a cheap form of argument. It would be like arguing that pot penalties should be made more SEVERE because a couple of twentysomething parents got stoned out of their minds, and let their toddler wander out in traffic where he got run over and killed. Hard cases, as someone said, make bad law.
2. "I still wonder whether readers (particularly those supporting federal pot prohibition) would agree with my belief that the Echols would and should have some kind of federal constitutional defense — based on substantive due process, perhaps — if local federal prosecutors were to seek to prosecute and severely punish the Echols for knowingly and repeatedly distributing a Schedule I drug to their child."
Ummm, there's a reason prosecutors are not required to bring every case they theoretically could. Such discretion is not exactly new. In other contexts that appear on this blog, posters get furious with prosecutors for NOT exercising a more lenient discretion.
Only someone who has never dealt with a jury would hypothesize that a prosecutor is going to go after this father in these circumstances.
3. Of course things can get complicated anyway. Suppose the parents wanted to use heroin, not pot? And suppose the kid calmed down with the heroin (as would very likely happen -- morphine, is, after all, derived from the same poppies as heroin). Does that mean parents have a Constitutional right to use heroin for their kid? And suppose it's a milder form of autism. Suppose the kid is just anxious about tomorrow's exam. Does the Constitution bend there, too?
4. The law already, and quite properly, allows the state to "interfere" with parental decisons about their kids' healthcare. If the parents think that starving the kid nearly to death, or some sadistic exorcism ritual done to drive out "evil spirits," is helping the kid heal by coming closer to God, let me tell you, as a prosecutor, I would have no problem putting them in the slammer. Parental rights stop where voodoo starts.
Accepted medical science (liberals just love to recur to their version of science) does not recognize starvation or exorcism as medicine. It also does not recognize self-administered pot as medicine (as the article states). Ditto with heroin, LSD, gin and other things that would alter the child's consciousness and behavior.
5. Let's be honest about what this story is really being used for. It's ostensibly about this one tragically handicapped little boy. But it's really about the campaign -- of late going at full blast -- to legalize drugs, pot and the whole nine yards -- for recreational use. Like any smart PR campaign, you lead off with your most sympathetic case, while keeping your not-so-sympathetic cases (like the irresponsible twentysomething parents I mentioned) out of sight (for the moment).
This used to be clever. It's a bit aged by now.
Posted by: Bill Otis | Jan 25, 2013 11:43:12 AM
I agree about the campaign being for the legalization of all uses of marijuana. While the debate can legitimately be debated in that context, I have little use for medical arguments, primarily because, as far as I know, marijuana is NOT an FDA-approved drug. Remember, every drug has to go through this rigorous procedure. In addition, I have never heard of SMOKING a chemical substance to be a medical advantage over other forms, such as pills or injections (which, of course, requires said FDA approval). The argument is not an honest one in that regard.
I understand that there are people that marijuana has helped. I'm sure that cocaine and heroin would similarly help people under certain circumstances. If this is the case, though, then it's more pertinent for the medical industry to be able to work with the substances to come up with safe medical solutions. Certainly, the argument for legalization cannot be generalized without proper procedures.
In short, arguing about marijuana (or other drugs) as an individual right is valid. Arguing about drugs to legalize medically without FDA approval is NOT valid. Certainly, medical use should not be considered as a pretext for overall approval. Then again, this is the era of the low-information voter.
Posted by: Eric Knight | Jan 25, 2013 3:18:07 PM
'...does not recognize starvation or exorcism as medicine...'
but Jehovah Witnesses will deny blood tranfusions...
Posted by: awake | Jan 25, 2013 4:38:33 PM
The child did alnot smoke the marijuana, it was given to him in liquid form. There are many ways to ingest marijuana. It is also difficult to do research for a controlled substance when you are not granted permission to possess it. That is why most marijuana research is done in other countries. Many countries have approved a nasal spray - as well as smoking.
I appreciate the efforts of the FDA, but sometimes this bureaucratic agency makes it impossible for biotech companies to develope new medications for disease. This encourages big pharma to tweek old drugs and present them as new in order to get the required right to market as new and protect their product from competition. We will lose the edge in drug development if this continues.
As for the marijuana use and legalization - it will happen and when it does we will save billions of dollars in enforcement, prosecution, and incarceration. We need to do this. It is fiscally responsible and in sync with freedom and civil liberties.
Posted by: beth | Jan 25, 2013 5:50:40 PM
Am Acad of Peds: left wing, pro-criminal rent seekers. What they want in opposing an effective treatment is to substitute many staff at high government expense to stop his self injury. They oppose corporal punishment, when it is highly effective, and there is nothing wrong with it. They support Commie Care. They support the taking of people's guns, and the disarming of the American patriot, standing between us and a Commie coup d'etat. The Academy has been thoroughly infiltrated by Ivy indoctrinated staff. It has the mentality and credibility of the ABA, i.e., it is a joke. The views of its feminist spokesfemale may be dismissed and ignored.
That being said, the child will cause a dementia pugilistica, by banging its head repeatedly, causing an added deterioration on top of the effects of tuberous sclerosis. So the bureaucratic opposition to this effective treatment is actually irresponsible, and a form of child medical neglect should the parents stop the treatment.
That being said, I have to agree with Bill. The story is pretextual. If they need a drug to sit on the cannabis receptor in his brain, marinol, an FDA approved drug by mouth is available. The story is a Trojan Horse for people trying to get straight marijuana available to smoke to get high. The slow effects of marinol compared to the rapid upsweep of cannabis brain levels when smoked, makes it unattractive as a recreational drug, but just a good as a therapeutic drug.
Posted by: Supremacy Claus | Jan 26, 2013 3:39:07 AM
SC, you obviously didn't read the article which clearly said the child is receiving a "liquid form of the drug by mouth," it's not like the kid is toking up. I see nothing "pretextual" about the story - the only medical experts quoted disagreed with the parents' decision and nobody but Bill said anything about "recreational use." Instead, what's most striking is the number of commenters (beth excluded) who appear not to have read the story at all and just regurgitate tired, knee-jerk memes which are inapplicable to this family's situation.
Posted by: Gritsforbreakfast | Jan 26, 2013 11:43:23 AM
The story itself is not about recreational use, sure. But the reason the story appears on a legal blog that has nothing to do with autism or medical practice generally, but that has been pushing for legalizing dope, is too obvious for argument.
It's the oldest PR stunt in the book. If you want to make X more acceptable, you portray X (say, dope) in its most sympathetic light (preferably with a picture of an adorable child thrown in), and say zip about its downsides. If you want to make X (say, incarceration) LESS acceptable, you talk about NOTHING BUT its downsides (say, cost) and say zip about its benefits (helping to reduce crime).
And that's exactly how things have been going here, as you know.
Posted by: Bill Otis | Jan 26, 2013 12:02:02 PM
Bill, do you think it's unethical to use Public Relations Firms to influence public policy?
Posted by: beth | Jan 26, 2013 12:44:35 PM
No, I don't. My objection is not to who is trying to influence policy but to the way it's being done. It might be considered clever advocacy, but it's certainly not honest discussion, to push X (dope or anything else) by trotting out ONLY its most sympathetic case (complete with child picture) while saying zip about X's disadvantages, costs and hazards.
Posted by: Bill Otis | Jan 26, 2013 2:40:42 PM
I think that's the way PR works. It is not honest discussion anymore than advertising is, yet both is valid and legal enterprises.
Posted by: beth | Jan 26, 2013 3:05:56 PM
I have no objection to PR when it's identified as such. It's when it appears in a neutral of academic guise that gives me heartburn.
But for however that may be, I appreciate your understanding that it's "not honest discussion anymore than advertising is."
Posted by: Bill Otis | Jan 26, 2013 3:11:30 PM
Bill, I trust you know I welcome advocacy and discussion of the disadvantages, costs and hazards of marijuana legalization and use. You regularly trot out the slipperly slope arguments, and other commentors also regularly bring up counter-argumens. I do not try to squelch these discussions of disadvantages, costs and hazards. In addition, I have also reported on Project SAM and other groups which are resisting state legalization efforts.
That said, I never claim, ala Fox News, that this blog is "fair and balanced." I am a law professor who gets paid, in part, to have opinions, and I do not seek to hide those opinions or the background that serves as the basis for my opinions. Indeed, I more often get more compliments when I express views than when I am in more of a reporter mode.
Posted by: Doug B. | Jan 26, 2013 3:20:27 PM
No one asks you to be neutral, Doug, but cheap sophistry isn't very convincing to those of us past a certain level of education. The issue isn't the position you advocate, but the weakness of your advocacy.
Posted by: federalist | Jan 26, 2013 5:34:17 PM
Whatever the form marijuana is given to the child it seems to help the child. Isn't that all that matters? Look at the picture of the child again and tell me that any parent would not do anything to ease the childs suffering be it liquid form or parents blowing the kid shot gun smoke hits. All this PR shit you keep spouting surely does not matter to parents of this child!
Posted by: Anon | Jan 26, 2013 6:09:18 PM
Um, anon, no one here is advocating that anything be done to the family. But rant on.
Posted by: federalist | Jan 26, 2013 6:17:58 PM
It's true that you put up occasional pieces about the anti-legalization side. But the healthy majority of the pieces you show are from the pro-legalization side.
Nor are you required to be "fair and balanced" on this subject. But the fact that you aren't is within bounds to note.
"Medical" dope is the cat's paw of overall legalization, something that is pretty obvious by now and that an increasing number of its advocates don't even bother to deny. It's fair for me to point that fact out as well.
I think it's stretching things quite a bit to use the picture of this adorable and helpless little kid as an advertisement for pot. The number of instances in which pot is used for anything approaching this case is miniscule. People want pot to get high. Trotting out this picture as a de facto part of that campaign significantly misrepresents what is really at stake when we're talking about legalizing dope.
What's really at stake is a bunch of teenagers, twentysomethings and thirtysomethings sitting around getting blasted. It's best just to say so.
Posted by: Bill Otis | Jan 26, 2013 9:28:46 PM
You'd be surprised. Most advocasy groups that support legalization are not made up of 20 year olds getting high. They also do not look like a bunch of people who are high, not do they work for the government.
That does not mean that there are not 20 year olds that use marijuana instead of alcohol, but people supporting legalization should not be characterized as a bunch of 20 or 30 somethings getting blasted. It is not accurate. That sounds like DEA PR, not a rational discussion.
Posted by: beth | Jan 26, 2013 10:16:30 PM
I never said the people running the legalization campaign are twentysomethings wanting to get blasted. I think they're largely fiftysomethings and sixtysomethings working in nonprofits and nostalgic for the hippie days of their youth.
There's a difference between (1) the people running the campaign and (2) those who want regularly to get blasted. I was talking primarily about (2), not (1).
But all this is off the main point. This heartrending story of the autistic boy is being appropriated for a much less popular or noble cause than helping a very sick kid. It's being appropriated to push for more acceptance of pot, which is the first step in the road to general legalization.
Posted by: Bill Otis | Jan 26, 2013 10:50:11 PM
Grits: I have no criticism of the parents of this child. I support their use of cannabis for therapeutic purposes. I criticized the AAP spokeslady which criticized his care. I cited the stakes if his self injury is not slowed down, an additional dementing process from self inflicted trauma.
What I criticized was the exploitation of this tragic patient for partisan political purposes by people who want to get high at will.
I have also supported the full legalization of marijuana while tobacco and cigarettes are legal and advertised. A mildly addictive substance that kills 50 people a year (by car crashes), is illegal. Meanwhile highly addictive substances that kill 500,000 people are legal and advertised. Only in the upside down, Twilight Zone, Eye of the Beholder episode world of the lawyer.
Posted by: Supremacy Claus | Jan 26, 2013 11:39:23 PM
Bill and federalist: I do not recall seeing you accuse death penalty advocates (or certain Justices) engaging in "cheap sophistry" or "advertising" when they trot out Tim McVeigh in support of arguments for the death penalty. Indeed, as I recall Bill, you were quick to talk about the Newtown shooting as a death penalty case even though the perpetrator had executed himself. Highlighting extreme cases in order to test the force and limits of certain commitments, beliefs and values is what goes on every single day in every law school classroom. Perhaps you both view all law professors as sophists and advertisers, but I suggest that your (over)reaction to this post reveals more about your core commitments than mine.
I find your reactions especially notable given the question/context in which I presented this story. As I have noted in prior posts, it seems that it is social conservatives who mostly favor big-government pot prohibition. But, notably, social conservatives seem especially troubled if/when governments seek to regulate how parents seek to raise their children --- e.g., these folks seem to get very angry if/when governments say that, in the name of keeping kids safe, we MUST teach sex education in schools and must allow kids access to contraception. Consequently, this story provided an interesting example to test the tension between parental rights and pot prohibition.
Ever the law professor, I am eager to test these issues further in a setting that seems much less extreme and may soon be very realistic: Suppose a set of very responsible private school parents in Seattle concludes that, come prom night, it would be much safer to host a "pot party" for seniors in a family's house after the prom than to risk having the kids out drinking/smoking and driving after the prom. Such a party would violate not only federal law but surely also even new state laws allowing some recreational pot use.
Now imagine, Bill or federalist, that you are the local DA and the private school parents come to you a week before the prom to ask whether you will initiate a prosecution against them if/when they go ahead with these prom pot party plans. What would you say in response? Would it matter if they asked in private as opposed to a public letter reprinted in the local papers? Would the size of the expected party and number of kids involved matter? What if they said they will be hosting this party and serving "punch" regardless of your answer, but that you answer might impact what else they serve at the party and how hard they try to encourage kids to attend?
Posted by: Doug B. | Jan 28, 2013 9:42:49 AM
1. The reason that it's not just PR or using an extreme, misleading example for federalist and me to talk about McVeigh or the Newtown massacre as part of the argument for the DP is because of the asymmetrical stucture of the DP abolition debate vs. the dope legalization debate.
In order for the country to refuse completely to abolish the DP in all circumstances, one would need only show a single case in which the vast majority would view the DP as just (indeed, as the only fitting justice). In fact, of course, there are hundreds of such cases.
By contrast, it order for us to legalize dope, one would need to show that, overall, the benefits of doing so outweigh the downsides. A story about an extreme case involving a severely sick child is grossly misleading in that context. You and I both know that the real reason motivating the quest for easier access to dope is to be able to get high. You yourself have put up memorable articles in which those in the so-called "medical" marijuana business have all but admitted that it's a fraud. No responsible medical organization has endorsed smoked pot as medicine.
As I say, it's an asymmetrical debate.
2. "Highlighting extreme cases in order to test the force and limits of certain commitments, beliefs and values is what goes on every single day in every law school classroom. Perhaps you both view all law professors as sophists and advertisers..."
I would hope not. If I held that view, I'd have to tell the Dean at Georgetown to withhold my salary (such as it is) next semester.
2. " Now imagine, Bill or federalist, that you are the local DA and the private school parents come to you a week before the prom to ask whether you will initiate a prosecution against them if/when they go ahead with these prom pot party plans. What would you say in response? Would it matter if they asked in private as opposed to a public letter reprinted in the local papers? Would the size of the expected party and number of kids involved matter? What if they said they will be hosting this party and serving "punch" regardless of your answer, but that you answer might impact what else they serve at the party and how hard they try to encourage kids to attend?"
My response would be this: "I am not a private attorney and I cannot accept clients. For that reason, I do not advise private parties about their legal questions. Nor do I (or the courts) issue prospective opinions.
"You are of course free to obtain private counsel, including counsel who have experience working with this office. You can also read the law as well as I can. I suggest that you do so. You can, in addition, read the oath of office I swore upon taking this job, and you may wish to do that as well. Thank you for your interest in the important subject of teaching our children the importance of healthy behavior and respect for law."
Now let me ask you a similar question.
Suppose a set of very responsible private school parents in Seattle concludes that, come prom night, it would be much safer, and less likely to result in either pregnancy or coercion, to host a "sex party" for seniors in a family's house after the prom than to risk having the kids out engaging in (maybe protected and maybe not) sex after the prom. Since the seniors are 18 (and thus adults), and some of the girls they're dating are 14, 15 and 16, a party with such activities would violate state law.
Now imagine, Doug, that you are the local DA and the private school parents come to you a week before the prom to ask whether you will initiate a prosecution against them if/when they go ahead with these prom sex party plans. Everybody knows the kids are going to have sex one way or the other. What would you say in response? Would it matter if they asked in private as opposed to a public letter reprinted in the local papers? Would the size of the expected party and number of kids involved matter? What if they said they will be hosting this party and providing condoms regardless of your answer, but that your answer might impact what else they offer at the party and how hard they try to encourage kids to attend?
Posted by: Bill Otis | Jan 28, 2013 5:52:27 PM
Couple of responses, Bill:
1. I do not know the "real reason motivating" people to advocate the end of federal pot prohibition, just as I do not know the "real reason motivating" people to advocate against the end of federal pot prohibition. I also do not know the "real reason motivating" people to advocate for or against the death penalty or access to contraception or the debt ceiling. More importantly, I do not think debates should be based on pop-psych assessments of what others think are the "real reasons" for advocacy. (This connects to my affinity for textualism: I do not want to try to guess/debate about "the real reason" behind a statute, I just want to analyze the text of the statute.)
2. If everyone agreed that all drug policy should be about cost/benefit calculations, then maybe I would see merit in your pot/DP distinction. But what if one thinks true justice depends, as the Founders suggested, on allowing individuals to puruse "life, liberty and happiness" without undue government interference/opporession? If that is the "real reason motivating" people to be against pot prohibition, than wouldn't it likewise be the case that "one would need only show a single case in which the vast majority would view legal use of pot as just (indeed, as the only fitting justice)"? You cook the comparison by asserting opposition to DP abolition is about justice (and thus not about costs/benefits) while claiming opposition to pot prohibition is just about costs/benefits (and thus not justice). I think both debates are about both views of justice and views of valid and debatable cost/benefit calculations. Thus, using extreme cases in both setting are integral to effective advocacy in both arenas.
3. Your hypo back to me suggest you see parents encouraging safe drug use to be comparable to parents encouraging safe sex. That is an interesting example/parallel, though not one the law generally draws: e.g., I believe there are religious exceptions that allow parents/pastors to give kids alcohol, but I do not think there are similar exception in the application of statutory rape laws. That said, never having been a prosecutor, I would probably look for guidance from wiser persons, and I would be especially grateful if I could cut-and-paste from you response to the prom pot party parents.
4. To play out your hypo, I wonder if you think the feds would have authority to prosecute under federal law the prom sex party parents if/when the local DA decided not to? Let's assume the party goes forward and the local DA opts not to prosecute. Would you as the local US Attorney feel you had authority to prosecute the parents for federal sex crimes? Would you? There is, of course, no doubt after Raich that the feds would have authority to prosecute the prom pot party parents, and I wonder if you think the local US Attorney ought to treat both hypo party parents the same way in the absence of any state criminal action.
Posted by: Doug B. | Jan 28, 2013 7:19:41 PM
-- It's true that you've never been a prosecutor. So let me ask what you think a prosecutor SHOULD say if asked those questions, assuming the prosecutor is (1) a level-headed person, and (2) faithful to his oath and the rule of law.
-- I repeat, people want pot legalized because they want to get high without having to worry about the cops -- not that they have to worry about the cops anyway, which they almost never do. How much support for pot do you think there would be if, instead of getting you high, it got you nauseated for three days?
-- As to your question about what the local US Attorney should do about the prom sex party hosted by the libertine parents: I am not aware of what statute confers jurisdiction on the feds. I would have to be satisfied there was one and that it was clear. Sex between adults and children is generally (not always, but generally) a local, not a federal, concern, see, e.g., Jerry Sandusky. Second, I would ask the local DA why he didn't prosecute; often the locals will know things you don't. Curiosity is a good thing in people with power. Third, I would refer the case to my USAO sex crimes unit for investigation and evaluation. Fourth, I would see what else in my Office needed the tax dollars DOJ was handing out that year. Lastly, I would try to assess community sentiment (the community in some important ways being my client). Did the community view this as a corrupting and dangerous precendent if I did nothing, or does this reflect what normal, law-abiding people do with their teenagers in this day and time (which I seriously doubt, but I'm willing to listen).
No one factor would control (unless I had no jurisdiction). US Attorneys are expected, and empowered, to exercise judgment and discretion. This is one reason Senate confirmation is required.
P.S. I'd be flattered to have you cut and paste. Eric Holder seems not to want to so much.
Posted by: Bill Otis | Jan 28, 2013 8:44:32 PM
"...all law professors as sophists and advertisers,"
Worse. Indoctrinators into a cult. Worse even than that, unaware, and unintended indoctrinators.
a) Core doctrines are supernatural and stealthily religious;
b) Failure to disclose total failure of every self stated goal of every law subject. For example, contracts are make people keep promises they no longer want to. Contract law is worthless in any matter under $million because one has to hire a specialist for $50,000. Contracts are a tool for big parties to exploit and steal from little parties. Even legal experts like judges cannot understand a credit card agreement. Contrast. 98% enforcement rate on EBay, in plain English, down to winning bids of one cent;
c) intimidation of lawyers and judges by the hierarchy, which none may cross without personal destruction, beginning in 1L.
d) acceptance of and lack of awareness of the rent seeking as the main activity of the lawyer profession and adoption of the Inquisition business model, lack of awareness of the carpet bombing of the economy, and of the productive male, and of every valued institution that makes up our civilization. Lack of awareness of the antics of the lawyer profession as a major factor in 9/11 attack.
e) support for judicial review in violation of Article I Section of the constitution. Covering up and never reviewing the Dred Scott decision as lawless and catastrophic in Con Law I. Lawyer Lincoln as greatest President, when he was really the worst President in history. (In contrast, OW Holmes has never made a mistake, not a single one, but is lambasted by profs.)
f) failure to disclose membership in Democratic Party, the party of the lawyer, the Klan, and the high black murder rate from its high bastard rate.
Posted by: Supremacy Claus | Jan 29, 2013 6:50:11 AM
Candidly, Bill, I think your answer to my final question --- in which you ran through all the factors and processes used by USA to make discretionary choices --- is a much better and more helpful response than the initial one you gave. As you know, I favor honesty and transparency in all criminal justice decision-making, and your second answer seems a lot more honest and transparent than your first "no comment" response.
Especially in light of state legalization of marijuana, your eagerness to get local input (both via the local DA AND the local community sentiment) in the sex setting but, presumably, not in the pot setting is an interesting example of how the feds may end up being LESS respectful of local realities if/when the locals have revealed a disaffinity for federal law. Maybe you think that it a good thing (in some or all settings?), but it is a kind of anti-federalism, big-brother-federal-government imposition in the marijuana arena that strikes me as constitutionally suspect and also unwise as a policy matter.
Indeed, this reality highlights yet another absolutist principle that might be the "real reason motivating" people to advocate the end of federal pot prohibition: namely a sense that true justice and political freedom demands local democratic control. Indeed, I suspect if the UN said the US must end the death penalty because it is clear that the "real reason motivating" death penalty advocates is that the get a high from state killing of murderers, you would be quick to assail the UN for trying to control what the elected official in the US elect to do. Comparably, perhaps many state pot reform advocates are most fundamentally against the feds telling the state and their citizens how they must regulate this drug.
Meanwhile, you are of course right that if consuming pot made people feel like, say, a chemotherapy treatment, then surely fewer people would be troubled by federal prohibition. That said, people do get very upset if/when they think even an unpleasant medicine is being kept from them by government officials who think they know better than individuals about whether that medicine may do more harm than good.
At the end of the day, Bill, I never cease to be amazed how often your talking points on this front seem straight from the progressive playbook while my talking points would make ready Fox News commentary. I have long feared that (too) many on the right talk about small government and personal freedom and responsibility only when it serves their parochial interests, and your comments and attitudes every time we discuss pot policy only serve to confirm this depressing cynicism.
Posted by: Doug B. | Jan 29, 2013 4:26:57 PM
"Small government" conservatism does not mean "no government" conservatism. There is a time and place for massive government. WWII was one such time -- the draft, rationing, huge government borrowing and debt. It depends on the stakes. I don't think I know a single conservative who thinks the expansion of government during the War was a bad thing.
One problem you continue to elide, it seems to me, is what happens if the individual decides that LSD is "medicinal." Or meth or heroin. Federal law against those things is no less an intrusion into personal autonomy than federal law against pot. It no more or less problematic constitutionally. Does that mean you are for repealing the federal criminal prohibition on those drugs as well?
If your answer is that those drugs are more dangerous, I agree, but that's not really the point. It's not that you and I and Congress think they're dangerous. It's that Congress arrogates that decision to the federal government, rather than leaving it to individuals, some of whom might disagree. Is it merely big government, and those supporting big government, who want to keep those substances illegal?
Lastly in this comment, you overestimate the role of the feds in criminalizing pot. As I keep saying, user amounts of pot are de facto legal so far as the feds are concerned. Is there anyone at all serving a federal prison sentence simply for smoking a joint?
P.S. If the UN said the US must end the death penalty because it is clear that the "real reason motivating" death penalty advocates is that the get a high from state killing of murderers, I would simply note that it is wrong about the reason such a large portion of our people support the DP. I wouldn't worry about the UN's "sovereignty" because, UNLIKE THE UNITED STATES (and that's the key difference you miss), it doesn't have any.
Posted by: Bill Otis | Jan 29, 2013 5:37:15 PM
Bill, I agree that WWII was a good time for bigger federal government, and the fact you use that example in a debate over the federal drug war is notable: perhaps you think the stakes are comparable in these wars, I surely do not.
Meanwhile, Bill, what you continue to elide is that many states (not just individuals) have decided to allow individuals to treat pot as medicinal. That reality changes the equation in many ways, and is a chief reason your LSD, meth, heroin slipperly slope claims do not carry the day. In addition, if there was a story of responsible parents finding a medical miracle for their severely autistic child via "medicinal" LSD or meth or heroin, I think it would be (even without state blessing) an interesting question whether the parents "would and should have some kind of federal constitutional defense — based on substantive due process, perhaps — if local federal prosecutors were to seek to prosecute and severely punish them for knowingly and repeatedly distributing a Schedule I drug to their child."
In other words, my response to your slippery slope query is not based on my assessment of what drugs I think are more dangerous, it is based in the question of whether and when there is a limit of Federal power. Again I note that in seemingly lots of other modern controversial settings --- health care insurance, gun regulations, birth control coverage, school choice --- folks on right are often the most vocal and eager to stress constitutional and plicy reasons why there should be lots of limits on federal power (especially in areas, like crime/punishment, where state law historically was the only game in town (see Lopez, Morrison, et al)). But, for reasons I still do not fully grasp, it seems that disaffinity for allowing people to some pot leads you (and David Frum and other big-government social conservatives) to give up these principles in the name of ??____??____ what I still fail to understand.
Your other standard gambit, Bill, beside the slippery slope game, is to say pot is de facto legal for users so what's the big deal. I guess that is good enough if you care not a whit about the rule of law, but I do (and I would have thought you did, too). Indeed, your concession that "user amounts of pot are de facto legal so far as the feds are concerned" is likely the "real reason motivating" me to advocate the end of federal pot prohibition. I think it a harm/danger far greater than pot for de facto federal practice and actual federal doctrine to be so detached. In other words, I think you underestimate the deeper harms of the "lawlessness" resulting from the feds criminalizig pot. (The parallel to alcohol prohibition here comes to mind again: I suspect "user amounts of alcohol were de facto legal so far as the feds were concerned in 1929. Do you think that fact justified keeping Prohibition in place?)
Posted by: Doug B. | Jan 30, 2013 5:15:55 PM
"Bill, I agree that WWII was a good time for bigger federal government, and the fact you use that example in a debate over the federal drug war is notable: perhaps you think the stakes are comparable in these wars, I surely do not."
Did I say I thought the stakes in WWII were comparable to those in the pot legalization debate? No, of course not. You just make that up -- sticking in a "perhaps you think" -- to put words in my mouth. C'mon.
The discussion was whether conservatives can ever be for big government. They can, a fact you (now) no longer deny.
"Meanwhile, Bill, what you continue to elide is that many states (not just individuals) have decided to allow individuals to treat pot as medicinal."
Close but no cigar. First, the great majority of states do not "treat" pot as medicinal. Second, smoked pot in fact is NOT medicinal, no matter how it is "treated" (ask the AMA). Third, the state "medicinal" pot laws are a fraud, as numerous articles you have put up on this forum attest (including at least one by the NYT).
"That reality changes the equation in many ways, and is a chief reason your LSD, meth, heroin slipperly slope claims do not carry the day."
You get your mileage here by silently sliding past the core of the legalizer argument -- the fury directed at the government's, ANY GOVERNMENT'S, subversion of individual autonomy -- and then slipping over to the federalism argument. This doesn't work, however, because exactly the same individual autonomy argument will be made, and is made, against STATE drug prohibition, be the drugs pot or meth or what have you.
Do you believe that here, in the land of the free (as you often say), individuals ought to be able to decide for themselves what to put into their own bodies, free from control by EITHER the feds OR the states?
"In addition, if there was a story of responsible parents finding a medical miracle for their severely autistic child via "medicinal" LSD or meth or heroin, I think it would be (even without state blessing) an interesting question whether the parents "would and should have some kind of federal constitutional defense — based on substantive due process, perhaps — if local federal prosecutors were to seek to prosecute and severely punish them for knowingly and repeatedly distributing a Schedule I drug to their child."
One can always posit that there "would be an interesting question." But what would be the answer?
You don't say, but I'm all ears. In the meantime, I have a couple of thoughts.
The first is that if parents said that they had achieved a miraculous cure with meth or LSD, you can be all but sure they're lying.
The second is that we already have a big clue about the supposed Constitutionally required defense. We have seen parents who truly believed there kid would get better with some awful, sadistic exorcism that killed the kid. They have tried this same fake "Constitutional" defense and have quite properly gone to jail anyway, because parents are not the FDA and don't get to certify medicine, not for their kids or anyone else's.
(Parents can also be sent to jail for disciplining their kids, even though parental discipline is at the very core of family life. But if the discipline crosses a line THE STATE, not the parents, draw, they'll be headed to the slammer. I, for one, would be more than happy to put them there, depending on how sick and sadistic their "disipline" was. I suspect you would too, by the way).
As to your third paragraph, I'll just say that I'm not really a social conservative. I something of a Taft/Goldwater/Reagan/Bush 41 conservative: I want a strong military, projection of American power around the world, lower taxes, an overall smaller government (with the major exception to keep normal people safe), and less of a dependency/whiner/grievnce-driven government.
"Your other standard gambit, Bill, beside the slippery slope game, is to say pot is de facto legal for users so what's the big deal. I guess that is good enough if you care not a whit about the rule of law, but I do (and I would have thought you did, too)."
C'mon Doug. As you and numerous commenters have very often pointed out, the rule of law easily accommodates prosecutorial discretion, something that has existed since the Founding. Such discretion (combined with the inevitable fact of scarce resources) means that some laws get more enforcement and others less. That is hardly and abandonment of the rule of law; it's an unavoidable acknowledgement of the real world.
To the contrary, it is you who seem to want to poke holes in the rule of law by your admiring attitude toward judges like Weinstein and Gleeson and Jack Kane, who want aggressively to defy precedent to make "law" of their own pro-defense prejudices.
"Indeed, your concession that "user amounts of pot are de facto legal so far as the feds are concerned" is likely the "real reason motivating" me to advocate the end of federal pot prohibition."
I'm flattered if I have had an effect to that extent on so distinguished a legal thinker. But I would have hoped instead that, in light of the fact that federal enforcement against user-only amounts of pot is virtually non-existent, you would devote your talent to something more important. Of all the things that abound on this wonderful forum, the campaign for pot is easily the least important. The "freedom" to use pot is about the most frivolous, pointless, juvenile "freedom" discussed anywhere in the public domain. Lady Gaga has about the same degree of importance.
Posted by: Bill Otis | Jan 30, 2013 9:05:31 PM
Bill, I do not mean to put words in your mouth, Bill, but I think it notable what examples you use to when conservatives will support big federal government. I assume you do not support big federal government to help kids get educated or people get health care, but you do to prevent people from using pot and to fight fascism. Got it.
Interesting as we turn to pot, you now want to trump the AMA definition to medicinal over state laws. Are you also a big fan of the AMA when they say lethal injection cannot be done humanely? My point, Bill, is not that there are not valid substantive arguments here... rather my continuing surprise is your eagerness to make claims in this setting that you would never make in others --- e.g., you saw that the duly enacted state "medicinal" pot laws are a fraud (and thus, it seems you are saying not worthy of any respect), but I do not recall you endorsing the same kind of reasoning when folks on the left assail voter ID laws enact by states as a "fraud" really designed to disenfranchise.
You are right that the core of the legalizer argument is that any drug prohibitions subvert individual autonomy -- akin to the core gun rights claim that any gun prohibitions subvert the right to keep arms. Notably, though, the drug reform advocates do not resist reasonable regulation (which might even lead to prohibition of the most harmful drugs), whereas the gun rights folks resist nearly all reforms and assert that prohibition of any kind of weaponry is akin to tyranny. Most critically, it is weak argument to use the most extreme advocacy to define the hopes/goals/interests of the entire movement. I am sure I could find gun right folks who would say that as long as the military has drones, I have a right to the same arms. Can/should I then say all gun rights arguments are invalid because any argument against shotgun prohibition necessarily leads the core argument to everyone having a right to drones?
I do believe that here, in the land of the free, the rights of individuals to liberty and the pursuit of happiness ought to be a priority over many other collective interests unless and until that commitment to personal freedom produces significant costs to the freedom of others. I also believe that this is the premise of our founding documents and of GOP talking points. Am I missing something you understand better? Is so, please explain.
You say that "if parents said that they had achieved a miraculous cure with meth or LSD, you can be all but sure they're lying." Are you saying the parents above are lying? Here now you quickly reveal the FACTS that should end your slippery slope. As the above story and many anecdotes reveal, it is possible for responsible persons to claim that marijuana has medicinal value. Do you think them all liars? If so, I understand your affinity for pot prohibition. But if not, you need to explain why this fundamental different in the potential value of these drugs to responsible people is not sufficient to justify different legal regulatory schemes.
(Side note: I do not think now parents can be sent to FEDERAL PRISON for disciplining their kids, even though parental discipline is at the very core of family life. Do you think federal criminal law should be expanded to cover hard spanking or exposing kids to second hand tobacco smoke?).
You say you want "lower taxes, [and] overall smaller government (with the major exception to keep normal people safe)." How then do you respond to those states who say ending pot prohibition allows for smaller government and lower takes (in the same way that ending pot prohibition did)? Do you know that there federal income take came to existence because the drys needed these taxes to make up for lost federal revenue from alcohol prohibition? That is why prohibition has been, historically, but not in your world, a progressive's cause, not a conservative one.
Posted by: Doug B. | Jan 31, 2013 7:39:33 AM
Would love to continue this, but we have guests out here in the middle of the Pacific who want us to trek out with them to the volcano, so I'm unable for the moment to respond.
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