A woman hand rolls joints in San Francisco for a medical cannabis cooperative
Editor's note: Mark
Osler is a professor of law at the University of St. Thomas Law School
in Minnesota and is a former federal prosecutor. He is the author of
"Jesus on Death Row," a book about capital punishment.
(CNN) -- The residents of Colorado and Washington
state have voted to legalize the recreational use of marijuana, and all
hell is about to break loose -- at least ideologically. The problem is
that pot is still very much illegal under federal law, and the Obama
administration must decide whether to enforce federal law in a state
that has rejected the substance of that law.
What makes this
development fascinating is that it brings into conflict two important
strains of political thought in America: federalism and moralism.
Federalists, who seek to
limit the power of the federal government relative to the states and
individuals, will urge a hands-off approach. Moralists, on the other
hand, strongly believe in the maintenance of an established social order
and will argue for continuing enforcement of federal narcotics laws.
Mark Osler
The new laws will pit
those who want a small federal government that leaves businesses and
individuals alone against those who want the government to actively
enforce a traditional sense of public morality in areas such as
narcotics, abortion and limitations on gay marriage.
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One aspect of this conundrum is the near-total overlap between federal and state narcotics laws.
Simple possession of
marijuana is made into a federal criminal case under 21 U.S.C. Section
844, and federal law oddly categorizes marijuana as a Schedule I
narcotic, along with heroin and mescaline -- even as cocaine and opium
remain on the less-serious Schedule II. While federal law typically
won't provide jurisdiction over a street robbery or even a murder, it
does allow federal courts to imprison someone for carrying a small bag
of marijuana, even when state law says otherwise.
Federal and state efforts to curb marijuana use through prosecution simply haven't worked.
Future of pot in Colorado hazy
Legalized marijuana: A good idea?
In 2010, four out of five
of the 1.64 million people arrested for drug violations were accused of
possession, and half of those arrests were for carrying what were often
very small amounts of marijuana. Those hundreds of thousands of drug
cases corresponded with an increase in marijuana use. If federal policy
were about problem-solving, Colorado would not pose a dilemma, because
prosecuting marijuana cases hasn't solved the problem of marijuana use.
Federal drug policy, though, is very much driven by moralism rather than problem-solving.
After all, we have spent billions of dollars --
about $20 billion to $25 billion a year during the past decade -- and
incarcerated tens of thousands of people to punish drug possession and
trafficking without ever successfully restricting the flow of marijuana
or cocaine.
If we think tough drug
laws solve the problem of drug use, we are deluding ourselves. Rather,
what sustains the effort is the bedrock belief that drugs are bad, and
we must punish those who sell them or use them. Mass incarceration is
justified by the belief that those we lock up simply deserve it. That
sense of retributive morality does not stop at state borders.
Federalism, though, demands that individual and state rights be honored above all but the most important federal imperatives.
We are not a unitary
state like many European nations, and part of the genius of the American
experience is the delicate balance between federal and state powers
desired by those wise men who crafted the mechanics of our government.
The difference between
federalism and the kind of moralism driving national narcotics policy is
simply this: Federalism is a central principle built into the structure
of our government through the Constitution. Abhorrence of marijuana use
is not such a defining principle. To be true to our best values,
federalism should win out.
No doubt, the moralists
will consider the regulations on marijuana "too important" to bow to
federalism concerns, but their sway is limited. Our recent elections
show the moralists to be in decline, as those who fought limits on gay
marriage won across the board at the same time that marijuana was
legalized.
As a federal prosecutor,
I had the privilege of representing the United States and a role in
employing the singular power of prosecutorial discretion. The Obama
administration should employ that discretionary power in line with our
oldest and best principles and step back from continuing marijuana
prosecutions in Colorado and Washington.
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