Monday, October 11, 2010

Prop 19 Week at the Silly Season

This week is Prop 19 week. Polls anticipate a victory at the polls for California's Proposition 19, the ballot initiative which would legalize marijuana for recreational use across the State. Legalizing a drug that is prohibited under the Federal Controlled Substances Act is certainly a novel problem in federal-state power dynamic. In Gonzales v. Raich the Supreme Court announced that the fact that medical marijuana was recognized by California law did not affect Congress's power to regulate the plant under the Commerce Clause or the DEA's power to prosecute Cannabis growers by grant of authority from Congress. Left unanswered in Raich is the question of whether the States have an active duty to enforce federal law.

To answer this question, I turned to some law journal comments from the end of Prohibition. In support of the 18th Amendment's constitutional ban on "intoxicating liquors", the U.S. Congress drew up the Volstead Act, which criminalized the transportation and sale of alcohol. The Volstead Act established criminal penalties and provided for an enforcement agency. States enacted their own mini-Volstead acts to allow their own law enforcement officers to pursue the goal of temperance with local resources. The laws creating state crimes for alcohol allowed perpetrators to be brought to court in state courts. Whereas state judges may take cognizance of federal remedy laws in civil disputes, they cannot impose federal sentences on perpetrators of purely federal crimes. State courts lack the jurisdiction to hear federal criminal cases. This was the case in 1932 before the repeal of prohibition, and it is the case now under U.S. Code Title 18 Part 2 Chapter 211 § 3231.

California Gov. Arnold Schwarzenegger signed a bill into law last week downgrading possession of marijuana from a misdemeanor to an infraction. Despite the light sentence that California law currently holds for marijuana possession ($100 fine for possession of up to 1 ounce), many misdemeanor defendants demanded a jury trial. The costs of these jury trials far outweighed whatever benefits the state found in continuing to charge cannabis possessors with misdemeanors. This bill has already removed the vast majority of state prosecutions of recreational marijuana users from the state courts.

The remaining criminal sanctions which could be heard in state courts in the absence of Prop 19 passage are possession of over one ounce of marijuana, sale, cultivation, and transportation. These acts are also criminalized by federal law. What effect would Prop 19 have on potential defendants for these crimes? Prop 19 allows local governments to design their own regulation schemes for licensing commercial cultivation and any sellers. However, personal cultivation is declared lawful, and cannot be prevented by local power.

The big news for residents of California is that the law enjoins state officers from participating in any seizure or destruction lawfully owned dried cannabis, seeds, or living plants. State law enforcement officials have cooperated with the DEA and other federal agencies in raiding medical marijuana dispensaries and cultivation centers. This provision has the promise of sparking immediate constitutional litigation about whether a state may legalize a controlled substance under the CSA. Officers of the state of California, like those in any other state, swear to uphold the Federal Constitution and the laws of the federal government. Article VI also provides the rule that federal laws reign supreme over state regulations, and this view was an implicit plank of the Raich decision. If a state agent violates the Prop 19 injunction against seizure in pursuit of upholding a federal law, the question will quickly end up before the Supreme Court. I would then predict that the Court will strike down Prop 19, but the reasons that we can expect such a decision require some further analysis. Hence, Welcome to Prop 19 Week!

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