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Univ. of San Diego School of Law

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Tuesday, November 21, 2006

Khat Fights and Cultural Clashes

When should culture be taken into account in criminal prosecutions and to what extent?   Though used sparingly, carving out cultural exceptions in drug laws is far from a novel concept.  Not that long ago, SCOTUS allowed a small Brazil-based church in New Mexico to continue the use of hallucinogenic tea, which contains the illegal drug DMT.  The Utah Supreme Court dealt with the question fairly recently, too, when it decided that a couple that started a religion using peyote for ritual shouldn't face federal drug charges

This past week, in Wisconsin, Liban Moalin, 37, an Ethiopian-born Canadian citizen was convicted of possession of a controlled substance with intent to deliver, in what some people are calling a "culturally insensitive drug case."  Moalin's conviction was based on his possession of khat, an evergreen shrub grown in East Africa and the Arabian peninsula and prized for its stimulating properties.  For millennia, East Africans and Arabs have chewed the plant's leaves and stems as a stimulant.  The Village Voice explains that khat is used the same way as the leafy version of chewing tobacco, balled into a side of a cheek. But the chewing lasts for hours and hours (usually some liquid— water, tea, or soda—is needed to ward off dry mouth) and the juice is swallowed, not spit out. 

Moalin was arrested in January after he took delivery of a shipment of the plants from a friend in Italy. But the shipment had been intercepted by U.S. Customs agents, then was delivered to Moalin by a Madison police detective posing as a Federal Express employee. The jury rejected claims by Moalin's attorneys that he didn't know khat was an illegal drug because it is the active ingredient in khat--cathinone, and not the plant itself--that is listed as a controlled substance in state law.  Assistant District Attorney Kenneth Farmer countered that marijuana itself isn't mentioned in statutes either, only its active ingredient, tetrahydrocannabinol is listed.  But everyone still knows it's illegal to use or possess.

Increasingly, police are cracking down on khat in cities where there are concentrations of East African immigrants.  These crack downs lead some to think that khat prosecutions represent a clash of cultures, aimed at targetting Muslims and finding legitimate, albeit pretextual, bases for deportations.  Still, others ask, what's wrong with enforcing the laws of the land, regardless of the offender's cultural background?  More on Khat from the Village Voice and the Moalin conviction from the Wisconsin State Journal  [Michele Berry]

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