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.