August 8, 2011

Dale Schafer Prison Blog Post Number One

August 8, 2011
dr mollie fry dale schafer

dr mollie fry dale schaferWhen one studies criminal law, the first thing that is studied is the traditional common law crimes. The traditional crimes are arson, assault, battery, burglary, larceny, murder, mayhem, rape and robbery. Most of these common law crimes were capital offenses and a guilty verdict sent you right to the gallows. These are all specific intent crime. There needs to be a specific intent, called the mens rhea, coupled with the criminal act, the actus reus, in order to be found guilty of the crimes. In order to save a person’s life, creative lawyers began to attack the intent or the act to keep their clients from the hangman’s noose.

With respect to murder, for example, there were arguments that the killing was unintentional or that there was so much provocation, say when one finds their spouse in bed with another person, that the crime should be mitigated to manslaughter. Or with burglary, which required a breaking and entering of the dwelling house of another in the nighttime with the specific intent to commit a felony therein, it would be argued that the defendant walked through an open door, or that they were only going to sleep inside, or that it was in the daytime, in order to stop a hanging. But always, you needed a criminal intent when one committed the criminal act.

All of this great history of criminal law went down the proverbial tube when the State came up with general intent crimes. Examples of general intent crimes are exceeding the posted speed limit or growing marijuana. It matters not what your state of mind was, all that matters is that you did the prohibited act. Other examples are crimes we call malum (wrong) prohibitum. These crimes are not like the old common law crimes, that are called malum (wrong) in se (in and of themselves). Some say they are violations of the Ten Commandments or the basic law of treating others as you would want to be treated. No, the malum prohibitum crimes are only crimes because then State says they are, not because they display a depraved heart.

There are more people in jails and prisons for violations of prohibitions than for any other reason. The number one prohibition is drugs. Using drugs does not demonstrate moral turpitude, a depraved heart, but only a desire to change your state of mind to escape the multitude of problems associated with modern life. This escape often results in physical addiction to the drug of abuse. Until the early 1900’s, using drugs was perfectly legal, even though many people understood the perils of abusing drugs such as cocaine, morphine, heroin and chloral hydrate, there was no push for the government, in those days the State governments, to make drugs illegal.

It wasn’t until the Spanish American war of 1899, that there was any serious pressure to control drugs. Of course there had long been social pressure to control alcohol because of the social problems associated with the abuse of alcohol. There had also been pressure in California to control opium, because of racial prejudice against the Chinese. After the Spanish American war, America gained control of the Philippine islands with a large population of opium smokers. The Priests that went to the Philippines came back with a fire in their stomachs to stop the use of opium. Within a few years, there was the first world convention to control the drugs of addiction. In 1906, author Upton Sinclair wrote a book about the evils of the meat packing industry called “The Jungle”, which spurred the passage of what I call the most effective drug law ever passed.

The Congress passed the Pure Food and Drug Act, which required labeling of all substances that contained any drug of abuse. At that time there were a host of “Patent Medicines” that contain anything from alcohol to heroin to cocaine and chloral hydrate to cannabis. Many people, most of whom were Midwestern white women, were purchasing these patent medicines from mail order catalogs, like Sears and Roebuck, and having them shipped in plain paper wrapping to their homes where they dosed themselves and their families with strong addictive drugs. When the Pure Food and Drug Act passed, it required that all medicines list their ingredients. When moms saw that they had been giving junior heroin to get him to sleep or that they were taking cocaine, morphine or alcohol many just stopped taking the drugs altogether. As I say, I believe it was the most effective drug law ever passed.

By 1912, Congress passed the Harrison Anti-Drug Act, that outlawed recreational use of the drugs of abuse, but you could get the drugs from your friendly physician, so long as it was in the normal course of medical practice. The Federal government took the position that maintaining an addict was not the normal course of medical practice and many physicians were arrested. Finally in the1920’s, the US Supreme Court ruled that maintaining an addict was not in the normal course of medical practice and addicts were at last called criminals.

The US was primed to incarcerate drug criminals for engaging in prohibited acts of using drugs. In 1920, alcohol became malum prohibitum. America was off and running for the most criminal period of our history, except of course for these times. The American people, and Congress figured out after twelve years of alcohol prohibition that the criminal gangs were a bigger problem than alcohol. Unfortunately, the American people and the Congress have not figured out that criminal gangs are more of a problem than the use of drugs.
In the census of 1900, it was estimated that five percent of our citizens were addicted to alcohol and another five percent were addicted to the other drugs of abuse.

In the census of 2000, the percentages were estimated to be the same. However, the period after the Nixon Presidency has seen an unprecedented amount of money and man power on the part of the State and Federal governments to stop the “illegal” use of drugs by our citizens. Unfortunately all that has happened is that we now have a prison industrial complex and several generations of minorities that are drug felons. Our Constitutional rights have been so eroded that our Founding Fathers would not recognize them and we still have not made a serious dent in the ravenous use of drugs by our citizens. The war on drugs that Richard Nixon declared in 1971 has been a miserable failure, but law enforcement keeps asking for more and more money and power to fight drug abuse and only intercept, at best, ten percent of the drugs flowing around our great country. As they say, we will get more next year with more money and power. The only thing that is really happening is that criminal gangs are making ungodly amounts of money and our neighbor to the south, Mexico, is a narco state. Americans are using large amounts of drugs and sending our second amendment guns to Mexico to be able to out gun the Mexican Government.

With respect to marijuana, my particular pet peeve, I learned in college that if ten percent of a population is violating a prohibition, the government can’t enforce the prohibition. The government keeps saying that only eight percent or some number less than ten percent, of the population is using marijuana. I’m here to tell you that the actual amount is easily twice that amount. Most marijuana users are very discrete about their use because of the political and criminal consequences of being caught. The fact is that the government can’t control the use of marijuana because far too many of our citizens are using it. In California, my place of residence before this sojourn with the Feds, medical marijuana has blown the lid off of the use of marijuana. There are more than seven hundred dispensaries in the state, making hundreds of millions of dollars per year and paying taxes. The problem is that marijuana is still illegal under the 1970 Federal controlled Substances Act.

In 1970, when the Federal law was passed, we, and I mean those of us who were interested in making marijuana legal, were told that marijuana would be put into schedule one, prohibited drugs, until it could be studied. President Nixon set up a commission, headed by former Pennsylvania Governor Shafer, to study marijuana. When Governor Shafer was going to announce that his study showed that small amounts of marijuana should be legal, Nixon went ballistic. Nixon, in his Oval Office secret recordings, made the most outrageous statements about how only Jew psychiatrists wanted marijuana legal and that he wanted a report that tore the asses out of those who wanted marijuana reform. Of course, Shafer issued his report and stuck to his findings.

Nixon began a pattern of stonewalling on the part of the Feds, which lasts to this day. The way the rescheduling process works, an appointed beaurocrat makes the decision to reschedule and none have been willing to reschedule, despite mountains of proof that marijuana is safe and medically beneficial. In 1988, an Administrative Judge Francis Young, after hearing massive amounts of information about marijuana, ruled that it was the safest medically active drug known to man and safer than many foods we consume. He recommended that marijuana be rescheduled. However, because a beaurocrat makes the final decision, marijuana has still not been rescheduled. One wonders, when will there be enough scientific proof that marijuana is safe and effective, before the Federal Government stops this charade.

There have been petitions made to the FDA to reschedule, only to be ignored until the matter is taken to Court for an order to do something, which they don’t do. At this time, several drug policy reform groups are proceeding to Federal Court to force the FDA to take action on a petition to reschedule that has languished for nine years without resolution. It is clear that the Federal Government does not want to do the right thing here. They would rather use scare tactics to try to keep people from using marijuana by prosecuting some of the more vocal and visible people who want marijuana to be made legal, like my wife and me.
I will write more as time goes along. Unfortunately, I do not have access to my many books and articles about marijuana while I’m in here. Everything I am writing is from memory, which at my age can be a little off. However, that will not stop me from expressing my opinions.

Keep up the good fight. Peace and Love.



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