Monday, August 13, 2012

Doesn’t Anybody Read Anymore? (Or Even Think?)


There’s been a lot of talk recently about state and local employees who administer medical marijuana programs being subject to federal prosecution under the Controlled Substances Act (CSA).  For example, Governor Christie used this as one of his reasons for delaying the medical marijuana program in New Jersey.  More recently, the state Attorney General for Arizona has tried to put a stop to their program in part because of this “concern.”

Before we even get to the part about not reading, let’s consider these people’s apparent inability to even give some serious thought to this issue.  Their alleged concern is that the CSA, a federal law, makes it illegal for anyone to be involved with controlled substances in any way whatsoever.  State laws in this case are irrelevant.  Marijuana is illegal at the federal level, and that’s that.  On the surface, it would appear that this is a valid concern.  State and local employees would indeed be involved in a program that the federal government views as illegal.  Sounds simple enough, obvious even.  Until you think about it.

But what about other state and local officials that are involved with controlled substances, and have been since those substances first became controlled?  I’m talking about state and local police.  These people are often in possession of a controlled substance, in clear violation of federal law.  When a cop takes a joint from a kid on the street, when a warehouse full of cocaine is seized, they are in violation of federal law.  The police are also involved in trafficking as well.  When they set up a sting to buy or sell drugs, that could be considered trafficking in a controlled substance under federal law.  Even planning the sting could be considered conspiracy.

Yet state and local law enforcement officers are not arrested and charged with federal crimes for their involvement with controlled substances.  How can that be?  Isn’t that exactly what Governor Christie and the AZ Attorney General are so concerned about?  Don’t they see the inconsistency in their argument?

The answer to why these people are not prosecuted of course can be found by simply reading the CSA.  In particular, Section 885. Burden of proof; liabilities, which states in section d:

(d) Immunity of Federal, State, local and other officials
Except as provided in sections 2234 and 2235 of title 18, no civil or criminal liability shall be imposed by virtue of this subchapter upon any duly authorized Federal officer lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.

If anybody bothered to first think about the issue, then follow up with reading the relevant piece of legislation, this “concern” would have never arisen.  As you can see, state and local authorities are immune from prosecution for performing their duties under state and local law.  Period.  End of discussion.  It’s a non issue.

Unfortunately, this seems to be an effective scare tactic, as federal officials can count on no one actually reading the CSA.  Even the ACLU seems to be unaware of this provision of the CSA. They are challenging this threat in California with some court cases that supposedly set a precedent for not prosecuting local authorities, when all they really need to do is refer to the immunity clearly provided by the CSA.  We can only hope that someday, somewhere, somehow, someone will read the CSA and call these bullies on their lies and empty threats.

1 comment:

Jennifer Bernsdorff said...

I'm confused. This section of the CSA is stating that no criminal liability will be imposed upon Federal officers lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any State (territory,..etc)...lawfully engaged in the enforcement of any law...relating to controlled substances.

But at the beginning of your article, you spoke of "state and local employees". Employee is different than a duly authorized officer, yes? Not only that, but according to this Section 885, being a duly authorized officer doesn't protect that person against being imposed with criminal liability if they are doing anything OTHER than engaging in the enforcement of this subchapter, when dealing with controlled substances.

Are the state and local employees engaged in the enforcement of the subchapter? If not, then not only are they not duly authorized officers of the Federal or State governments, but they aren't fulfilling the requirements that allow for protection from criminal liability.