Kevin Sali: Marijuana and Prosecutorial Discretion
Wednesday, June 24, 2015
It’s arguably misleading to call what Oregon has done “legalization.” As long as marijuana remains illegal under federal law, Oregon doesn’t have the power to “legalize” it—that is, to make it legal for someone in Oregon to make, sell or use it. The most Oregon can do is decide that certain marijuana offenses will no longer be crimes under Oregon law – that is, that the State of Oregon won’t prosecute those offenses anymore.
Federal prosecutors are unaffected by the change in Oregon law, and can continue to prosecute Oregonians for marijuana-related offenses in federal courts as they see fit. These prosecutors have the power not only to send people to prison, but also to seize money, cars, homes, and other property connected to marijuana distribution. And this is where things get complicated and—for those concerned with the rule of law—disturbing.
The United States Department of Justice has signaled that it’s not going to focus on ordinary marijuana offenses where the conduct complies with state law in a legalizing state. These signals, however, are extremely vague, peppered with caveats stating that prosecutions in such states may indeed be appropriate in certain cases. They’re also entirely non-binding. They have no legal effect whatsoever, and the Department or any individual prosecutor could change course in an instant and decide to prosecute an Oregonian citizen or company in the marijuana business.
This type of policy is considered to be a type of “prosecutorial discretion,” which refers to a law enforcement body’s ability to decide which legal violations it will actually prosecute. That discretion has been a part of every law enforcement system, and is not in itself objectionable. The way it has evolved in the American system, however, has led to a troubling change in the relationship between the government and its citizens.
There are two basic ways to structure a criminal justice system in a democracy. One is for the citizens, through their legislators, to define criminal offenses in clear terms, with the expectation that those who are caught crossing the resulting lines will be prosecuted. This has the advantages of clarity and predictability. The downside of this approach, admittedly, is that it leaves openings for the crafty to come up with strategies—the proverbial “loopholes” and “technicalities”—to avoid prosecution by staying just inside the legal lines, while still causing many of the problems the laws attempt to address.
For those who find this unacceptable, the response is the second model of criminal law enforcement. In this model—which increasingly describes the American system—laws are drawn much more broadly to ensure that anyone who is doing something that “seems” or “ought to be” illegal can in fact be prosecuted. Here, the risk is that that breadth will necessarily sweep in people and cases that we don’t really want to target. The supposed safeguard is “prosecutorial discretion”—the idea that fair-minded prosecutors will use their own judgment to decide who, out of the vast class of potential defendants, really should be targeted.
However that second model may sound in theory, in practice it has proven to be deeply troublesome. First, of course, this vast discretionary power offers opportunities for unscrupulous prosecutors to target people for inappropriate reasons. It’s widely acknowledged in the legal community that a prosecutor who really wants to charge someone will always be able to find something within the vast array of broad criminal statutes that can “stick.”
But even where prosecutors do their best to be fair, the discretion-heavy system is troublesome. It largely transfers to prosecutors the determination of what’s “really” criminal—a determination that in a democracy should be the responsibility of elected legislators.
And it fundamentally transforms the relationship between the individual citizen and the government. In a system with clear, consistently enforced laws, citizens can decide whether or not to abide by their society’s rules. If they don’t, they accept the risks they’re taking; if they do, they can hope to be left alone by the authorities, however those authorities might “feel” about their conduct.
By contrast, in a discretion-based enforcement regime, citizens know they have to stay on government officials’ “good sides,” and the fear of arbitrary or targeted enforcement can lead to attitudes of servility and submissiveness that are out of place in a free society. (Imagine a stopped driver groveling before a police officer to avoid a ticket—now expand that image to cover all of the areas in which laws govern our conduct.)
The heavy use of prosecutorial discretion shows up in several areas besides marijuana—for example, in immigration law, where there are deep divisions regarding whether we want to see existing federal law enforced, and in the area of white collar crime, where the applicable statutes provide virtually no guidance and prosecutions are often based on individual prosecutors’ distaste for certain practices. However one might feel about any one of these issues, it seems vastly preferable to have the “real rules” set forth in written laws that all citizens can understand and (if they choose) obey.
So, back to the topic we started with—if you’re an Oregonian planning on taking advantage of the new marijuana “legalization,” here’s the version of prosecutorial discretion you’ll be relying on. The United States Department of Justice—the most formidable law enforcement body in the world, which in a drug case has the power to imprison you for decades and confiscate everything you own—has said, in an entirely non-binding way, that it probably won’t decide to exercise this power if you follow Oregon law. Unless, of course, the Department decides to change this policy (which it could legally do retroactively), or an individual prosecutor decides not to follow it, or something about you or your case makes prosecution seem appropriate.
Sleep tight.
Related Slideshow: 7 Things Oregon Can Learn from Legal Marijuana in Washington
In the wake of what many business owners, lobbyists and advocates call a rocky implementation of recreational marijuana in Washington, Oregon regulators have the opportunity to learn from their neighbor to the north.
Follow us on Pinterest Google + Facebook Twitter See It Read It