Medical Marijuana: A Shift in National Consensus

With the release of a National poll indicating that nearly three quarters of Americans believe that the Federal Government should respect states’ medical marijuana laws, and the election of two major supporters of medical marijuana laws there seems to be a strong consensus that the Federal government should halt its attacks on medical marijuana facilities.  This evidence reflects a seismic national shift in political attitudes that has occurred in the years since California first legalized medical marijuana in 1996.  The erosion of the ironclad position to keep marijuana illegal under any circumstance has given way to mounting scientific evidence showing that marijuana has useful medical qualities.  Due to this shift in social norms, laws outlawing medical marijuana use are becoming less and less enforceable.

In Oregon, Ellen Rosenblum won a sweeping victory in the state’s primary election for Attorney General.  Rosenblum and her opponent held the same views on consumer protection, civil rights, and the environment, but differed in their stance on medical marijuana laws.  Rosenblum’s supportive stance on medical marijuana propelled her to victory.  The race was the first where the outcome was determined by the candidates’ stance regarding medical marijuana.  Rosenblum’s stance helped her overcome a severe campaign funding disadvantage and helped her capture an electoral victory.

In El Paso, Texas, the voters ousted eight term democratic congressman Silvestre Reyes due, in part, to his firm stance against legalization.  He was beaten in the primary by Beto O’Rourke who supports legalization and protection of medical marijuana rights.  Reyes focused his campaign on attacking O’Rourke’s past advocacy for legalization of medical marijuana.  However, his plan backfired as El Paso voters took to the polls and endorsed O’Rourke and his stance in support of  medical marijuana.

New York saw one of the most surprising endorsements of medical marijuana use as State Supreme Court Justice Gustin L. Reichbach, who is suffering from the terrible scourge that is pancreatic cancer, recently wrote an op-ed article describing his medical marijuana use.  That such a ringing endorsement of the medical qualities of THC would come from a well respected and influential member of the judiciary is quite surprising.  However, Justice Reichbach sums up the issue quite eloquently and succinctly by stating, “This is not a law-and-order issue; it is a medical and a human rights issue. Being treated at Memorial Sloan Kettering Cancer Center, I am receiving the absolute gold standard of medical care. But doctors cannot be expected to do what the law prohibits, even when they know it is in the best interests of their patients. When palliative care is understood as a fundamental human and medical right, marijuana for medical use should be beyond controversy.”

Justice Reichbach is correct is asserting the medical and human rights issues that the prohibition of medical marijuana presents.  However, his assertion that this is not a law and order issue is incorrect.  Until state legislature and the Federal Government listen to the public outcry in support of medical marijuana cancer patients and others who’s suffering could be lessened by the medicinal use of marijuana will be forced to break the law in order to find respite from what ails them.  Instead of listening to modern medical and scientific findings, opponents of the legalization of medical marijuana would rather fall back on tradition, myth, and bunk science.  Connecticut Governor Dannel Malloy recently signed a bill allowing his state’s sick citizens access to medical marijuana, making it the seventeenth in the country to legalize marijuana for medical use.  Now that over one third of the state in country have voted to help stop the suffering of their sick, we can only hope that the other two thirds quickly follow suit.

My Take
As the public’s perception of marijuana changes and more studies are released touting its medicinal qualities, laws prohibiting its use seem particularly antiquated and out of step with societal norms and medical views.  Laws that a majority of the public do not support cannot be viable or enforced.  The Federal Government’s insistence on attacking the medical marijuana industry ignores the facts and is out of touch with current social views.  The antiquated view that marijuana is a dangerous narcotic and a plague upon this country has been proved false by countless scientific studies.  Doctors routinely prescribe drugs much more dangerous, and much less effective, than marijuana.  It is time for this country to come to the aid of our sick and suffering, to unshackle medical doctors’ ability to prescribe medicine that will lessen their patients suffering.  As long as marijuana is illegal patients will be forced to obtain it through illegal and sometimes dangerous means.  It is time to take a long look at the medicinal marijuana issue, follow the scientific data and reach the only logical conclusion, that marijuana should be legalized for medical use.

The Duty to Retreat: An Examination of Moden Self Defense Doctrine

With the Trayvon Martin case still making headlines it seems pertinent to examine the modern trend  eliminating the duty to retreat from modern self defense doctrine.  Traditionally self defense was viewed as a justification defense with four elements.  A defendant claiming self defense must have had a reasonable belief that he or she was threatened with an imminent threat of unlawful force, that the force used to repel the threat was proportional to the threat and the defendant must not have been the initial aggressor.  These elements were taken from the common law and historically represented the basis for self defense laws in this country.  However, there has been a modern trend to eliminate several of these elements, creating a new approach to the doctrine of self defense.  This more modern view generally eliminates the common law duty to retreat, and has modified the initial aggressor and proportionality of response doctrines.  As a result, self defense in certain jurisdictions is a tricky doctrine to apply.  The elimination and modifications of these elements has opened the door for vigilante justice and has gone too far justifying the taking of human life.

Eliminating the duty to retreat and modifying the proportionality standard has opened the door for people to claim self defense in extremely inappropriate situations.  Before someone decides to respond to aggression with deadly force they should be required to attempt to escape.  Taking a human life is the most serious decision one can make and should only be excused in the most extreme cases.  As more states recognize citizens’ right to carry concealed weapons in public places, laws granting carte blanche to anyone who “reasonably” feels threatened to respond with deadly force can have terrible consequences.  It harkens back to the days of the “wild west” when non-deputized members of society were empowered to take the law into their own hands.  Proponents of these laws tout putting more judgment into hands of the individual as recognizing the “rugged individualism” of America.  They stress that these laws send a powerful message to would-be criminals that the “good-guys” have the advantage.  However, the message sent could encourage bad guys to shoot first and ask questions later.  If a criminal knows that someone is likely to respond with deadly force, they will be more likely to attack with deadly force.  This message will increase bloodshed rather than lessen it.

These “Stand your ground” laws also generally rely on a person’s “reasonable belief” that he or she  has been threatened with death or great bodily harm.  This relaxed standard opens the door for a wide array of justifications for the use of deadly force.  Is it reasonable for a man riding on the subway to believe he has been threatened with “death or great bodily harm” when he is approached by for black youths and a asked for money?  This standard seems too subjective and too lax.  It opens door for people to exploit their own prejudices.  Some people may be threatened by four black youths on a subway, some people my not be threatened.  Which belief is reasonable? Are they both reasonable?  Requiring someone to attempt to escape before unleashing deadly force will help to prevent tragic mistakes similar to the Trayvon Martin case.

My Take
Guns don’ kill people, people kill people.  That maxim has been trotted out the gun lobby for years and is a perfect description for the results of these so called “Stand your ground” laws.  In a world where guns are becoming increasingly commonplace it is dangerous to encourage  people to respond with violence to situations in which they feel threatened.  They may be mistaken about the other parties intentions.  The justice system is in place to ensure that criminals are punished.  Removing the rigorous vetting process required by the justice system and allowing people to react in the moment increases the risk of tragic mistakes.  These laws need to be viewed skeptically.  Reacting to a perceived threat with deadly force should be a last resort, not the prescribed reaction.

Statutory Rape Laws: Are They Still Viable in Modern Society?

Statutory rape laws can trace their lineage back to the Middle Ages when they were developed to protect the chastity of young women.  They have since been transformed into the latest solution to solve the teenage pregnancy problem in the United States, after a 1995 study found that two thirds of teen mothers were impregnated by adult males.  In the wake of that study states across the nation began to ratchet up enforcement of statutory rape statutes.  the highest priority for prosecution were cases in which teen women were impregnated by men older than them by five or more years.  These laws have been touted by some as promoting family values and chastised by others as remnants of an oppressive past.  Statutory rape laws are generally strict liability crimes with no Mens Rea requirement.  This means that, no matter the circumstance, sexual conduct with a person under the age prescribed by statute is punishable.  Most jurisdictions do not recognize “reasonable belief” defenses.  The punishments for statutory rape are serious.  They usually require significant prison time and lifetime registration as a sexual offender.  In a day and age when over fifty percent of teens under the age of eighteen are sexually active laws functioning to “protect young women’s chastity” are becoming increasingly irrelevant.  Without significant reform, statutory rape laws will likely become unenforceable and go the way of the Dodo.

There is a strong argument for keeping statutory rape laws on the books.  In the extreme cases, they protect young children from sexual exploitation.  There can obviously be no excuse made for sexual conduct between an adult and a young child.  Even laws that cover adolescents still serve the valid purpose of protecting teens from manipulation by older, more mature, people.  However, these laws need to be refined.  Simply setting a bright line age is not complex enough to deal with every situation.  These sorts of bright line rules invite selective enforcement.  Consider that most statutory rape laws in this country set the age of consent around fifteen or sixteen years of age.  Now consider that the median age of first intercourse for women in this country is seventeen, for men it is slightly lower.  That means that a large percentage of young men belong behind bars.  This evidence shows that many statutory rape laws have lost touch with social norms and cannot be enforced, except unevenly.

Statutory rape laws in today’s society are most often used to prosecute unpopular groups of men.  Generally men who are significantly older or minority men who have sex with women from privileged backgrounds or impregnate their partner and add to the welfare rolls.  As long as these laws are enforced selectively they do not function to protect young people from grown sexual predators as much as they function to punish unpopular social groups.  These laws need to be refined.  Instead of merely setting a bright line, difference in age laws seem to represent a better option.  While a basement age (say 13 or so) could still be recognized, adolescents who engage in consensual sexual conduct with someone within five years of their age would be legal.  This law would offer some respite to the punishment of what have become socially acceptable teenage relationships while still providing punishment to much older men who prey on the naivety  and emotional vulnerability of teenagers.  The continuing viability of these laws is debatable and there are many questions which must be confronted.  However, these current bright line age laws with their Puritanical overtones no longer serve to protect modern social interests.

My Take
Statutory rape laws must be reformed in order to maintain their viability in today’s increasingly permissive society.  The rigid, mechanical, structure of current laws prevent them from recognizing what have become common place teenage relationships, instead labeling them as serious felony offenses.  Because these laws do not reflect social norms they can only be enforced selectively.  No prosecutor is going to lock up a majority of sexually active teens.  Moreover, the harsh punishments that result from a conviction of statutory rape label an individual with a scarlet letter that will follow them for the rest of their life.  Most jurisdictions do not allow a “reasonable mistake of age defense”.  Because of this a twenty-two year old who meets a sixteen year old in a bar is just as guilty as a pederast who sexually assaults children.  These two offenses are completely different.  In the first case the man would not even be able to introduce evidence that he believed the girl he met in the bar was twenty-one.  As a result, even if their sexual conduct was consensual, he would be forced to suffer the same punishment as the adult assaulting children.  Also, introducing a difference in age standard for minors gives some legal recognition to normal teenage sexual relationships while still protecting teens from being taken advantage of by more mature adults.  These are only several of the ways statutory rape laws could be changed to reflect the social norms of modern society.  These laws present an interesting problem that the legislature will no doubt wrestle with for years to come.  

Domestic Abuse: A Pervasive Problem

Domestic abuse should not happen to anyone.  Ever.  Period.  Sadly, however, thousands of people across the country suffer as victims of domestic abuse each day.  If you have been abused, or know of someone who is being abused, seek help immediately.  Domestic abuse can be both physical and emotional.  Victims can be of any race, gender, age, and be in a variety of different relationships.  The acts do not have to be criminal in order to be abuse.  Name calling and put downs can have negative emotional effects that are just as serious as physical abuse.  There are lawyers all around the country who specialize in dealing with the ramifications of abuse and legal remedies available to protect those suffering from abuse.  In order to receive this help, however, you must be proactive in seeking protection.  If you are being abused it is important to remember that you are not alone, it is not your fault, and help is available.

There are several common myths about domestic violence.  You may here the excuse that some people deserve to get hit or “ask” to be abused.  This is ludicrous.  The only person responsible for abuse is the abuser.  Physical abuse, even amongst family members, is wrong and against the law.  Many people believe that domestic violence is caused by drug or alcohol abuse.  This is untrue.  Domestic abuse is often learned.  It may be exacerbated by drug or alcohol use but they are generally used as excuses to explain away abusive behavior. Domestic violence is not a merely a personal problem between a husband wife.  Domestic violence affects everyone.  About one in three women have been physically or sexually abused by a boyfriend or spouse during their lives.  Thirty percent of female murder victims were killed by their husbands or boyfriends.  Forty to Sixty percent of people who abuse their spouse also abuse children.  Many people believe that if the abuse must not be bad if the victim does not leave.  There are many reasons a victim may not leave.  Their reluctance to leave does not excuse the abuse.  Leaving is the most dangerous time for an abuse victim.

The quickest and easiest way for a victim of domestic abuse to gain a legal remedy is to seek an order of protection against the abuser.  An order of protection offers a variety of protections to the victim.  A victim may ask that the court for protection of him or herself, any other people he or she feel may be in danger from the abuser, any property or pets, and the victim may ask that the abuser be excluded from their place of residence.  People who are eligible for an order of protection may differ slightly from jurisdiction to jurisdiction.  Generally, orders of protection are available to people who have been physically, sexually, verbally, or emotionally abused or threatened by someone who they have been married to, someone they have a child with, a family member, a current or former roommate or someone they have dated.  Applying for an order of protection will generally include taking a trip to whichever courthouse handles domestic relations in your jurisdiction.  An easy way to figure out where to go is to do a simple Google search about domestic violence and the state you live in.  Once you get to the courthouse there will be some paperwork to fill out before you will be taken up to the courtroom to explain the abuse to a judge.  That judge will then grant the order of protection.  It is important to remember that the order of protection is nothing but a piece of paper.  In order for it to serve its purpose, you must be proactive.  If your abuser attempts to contact you in any way, call 911.

My Take
No one should ever have to suffer from domestic violence.  It is a pervasive problem affecting thousands of people a year.  It is important for victims of domestic violence to remember that they are not alone and that help is available.  There are legal remedies offered in every state to help protect victims of domestic violence.  However, those remedies are only available when the victim is proactive in seeking help.  If you know someone suffering from domestic abuse it is important to encourage them to seek help.  Domestic abuse is never normal or acceptable behavior.  It is imperative to inform victims of abuse that they do not have to suffer in silence.  Many former abuse victims escape the cycle of violence and go on to live healthy, successful, happy lives.  If you are, or know someone who is, suffering from domestic violence seek help now.  Do not wait for the violence to escalate.  If, as a society, we take this problem seriously we may be able to end domestic violence once and for all.

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Dealing with Divorce in the Modern Age

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Using Legal Counsel During Divorce

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Deciding on Divorce

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Planning a Defense Strategy

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Do You Need a DUI Attorney?

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Different Searches with Canines

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Jury Nullification: Justice or Chaos?

The recent case against Julian P. Heicklen for jury tampering, which was dismissed from Federal District Court,  touches on the important issue of jurors’ right to nullification.  Mr. Heicklen, a retired chemist, took it upon himself to inform potential jurors that they have a historically recognized right to ignore the law and render verdicts based on their conscience.  The Jury’s ability to nullify has its roots in two  unique features of the criminal law.  First, the jury in a criminal case has the right to return a general verdict which does not state how the the jury applied the law to the facts.  Second, double jeopardy bars an appellate court from overturning a jury’s decision in favor of the defendant and ordering a new trial on the same charge.  Historically jury nullification was viewed as nothing more than a minor wrinkle of our criminal justice system.  Recently, however, it has come under close scrutiny as attorney’s have advocated for its use in minor drug possession cases.  This advocacy has prompted a debate, headlined by Mr. Heicklen’s case, about the appropriate use of jury nullification.

The strongest argument for jury nullification is that it has a positive impact on the way minor, non-violent, drug cases are prosecuted.  The statistics show that drug enforcement has an disproportionate effect on African-Americans.  Roughly one in three drug convictions in the United States each year involves African Americans, yet African Americans make up only about thirteen percent of the population.  According to the Department of Justice, African Americans do not use drugs at a higher rate than members of other races, they are simply arrested, tried and convicted more often.  African Americans make up seventy percent of the people incarcerated for drug offenses although they constitute only thirteen percent of the drug users.  Why is this true?  The answer to the disproportionate number of arrests and convictions is unconscious discrimination found at almost every level of the criminal justice system.  Prosecutors have discretion about which cases they take to trial. If, for whatever reason, they do not feel they can win a conviction they will often decline to file charges.  This is where jury nullification can have its biggest impact.  If jury’s begin returning not guilty verdicts for African American defendants in non-violent drug cases,. prosecutors will be less likely to continue charging people for these offenses.

Jury nullification is not without its drawbacks.  The principle of nullification is that the jury should ignore the facts and the law and judge the case based on its own moral perceptions.  This is a dangerous precedent.  Imagine a situation where the evidence clearly indicates that a man beat his wife but the jury decides to find him not guilty because his wife stayed in the marriage with him.  I do not think anyone would find this to be a desirable result.  “Morality” is a subjective standard which is impossible to apply to every situation.  Nullification encourages jurors to apply the law as they see fit or ignore it altogether.  This undermines the political system.  Laws are put through a complex vetting process in the legislature before they are passed.  Ignoring these laws and instead judging a case based on personal beliefs subverts the power entrusted to the legislature.  Inviting people to ignore the law in favor of their own judgement and opinion opens up the justice system to chaos.  Cases will no longer be decided based upon facts and the law, they will be decided based on people’s personal beliefs and prejudices.

My Take
Both sides of the debate over jury nullification make valid points.  However, I believe that juries should be informed of their right to judge cases based not only on the law but also by using their own common sense.  I would not advocate for nullification in serious, violent, criminal cases.  However, for non-violent drug offenses jury nullification offers the common man a direct voice with which he can endorse or criticize the the laws policies passed by the legislature.  The statistics regarding drug arrests have become impossible to ignore.  Drug laws are not enforced equally.  African Americans are charged with, and convicted of, drug offenses at a much higher rate than members of other races.  Jury nullification offers a the public a direct way to impact the way drug offenses are enforced.  I do not think people opposed to the idea of jury nullification give jurors enough credit.  Juries are not going to be finding murderers or rapists not guilty.  Jury nullification has existed since the creation of the criminal justice system.  Applying it to non-violent drug offenses offers the public a way to impact the way drug crimes in this country are prosecuted.  By finding young, African Americans not guilty the public may be able to right the ship and end the inequality of drug enforcement in America.

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Retaliation and Worker

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Understanding Court Cases

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