Tuesday, October 20, 2009

Criminalization and Jurisdiction: Thoughts on the Federal-State Divide

Yesterday's news about the policy to refrain from federal raids on medical marijuana dispensaries raise an interesting issue. One of the criteria, which according to the Department of Justice memo should be taken into account, is whether state dispensaries are violating state law. The implication, theoretically, is that prosecutors that examine dispensaries on a case-by-case basis will have to pay attention to CA procedures and potentially raid CA dispensaries when these violate CA law.

This tidbit has a few interesting implications. First, if the message is, as the memo implies, that prosecutors need to use limited resources wisely, it is unclear whether encouraging the feds to spend time and money inquiring on the (dubious and unclear) status of CA dispensary regulation is an effective use of those resources. The status of dispensaries varies from county to county and from city to city. Are the feds really expected to keep up with this?

Second, is this a message to state prosecutors to "shape up" and enforce state laws in lieu of the feds? If so, it doesn't seem to be a very effective one.

Third, this memo seems to be in contrast of the Supreme Court's decision in Virginia v. Moore (2008). There, the Supreme Court decided that a search incident to arrest conducted in Virginia was valid, despite the fact that the offense in question (speeding) did not allow for an arrest under Virginia law. In a 9-0 decision, the court said that constitutional review was not concerned, at all, with the prohibitions in state law, only with the question whether there was probable cause for the arrest. So, do we only care about state law when it works against the defendant?

And finally, what are the practical implications of the memo's austere tone? Is it just to assure prosecutors that the Obama administration has no plans to legalize marijuana? Perhaps the concerns about future enforcement are unwarranted, and federal prosecutors will just get the general message, which is to back off from dispensary raids.

Click here to hear what my fabulous colleague Rory Little had to say about this this morning on KQED.


Rory Little said...

Thanks Hadar. As for the memo's austere tone, I think it was directed squarely to the more conservative members of Congress who will use any liberalization of policy in this area against the Obama Administration in the 2010, and 2012, elections. But the change in tone from the previous Administration is very clear.

Hadar Aviram said...

That's a good point. And part of it just may be Jonathan Simon's assertion from Governing Through Crime, namely, that no politician, regardless of party affiliation, can afford to be elected on a "soft on crime" platform in the U.S.