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Title: Neil Gorsuch Sympathizes With Drug Dealers
Source:
Reason
URL Source: https://reason.com/blog/2017/02/06/ ... ch-sympathizes-with-drug-deale
Published: Feb 6, 2017
Author: Jacob Sullum
Post Date: 2017-02-07 07:30:44 by Deckard
Keywords: None
Views: 3237
Comments: 12
In his 2006 book about assisted suicide, Supreme Court nominee Neil Gorsuch takes issue with the "libertarian principle" that requires legalization of the practice. The same principle, Gorsuch argues, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts...duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." That's right: If the government lets people kill themselves, it might also have to let them smoke pot. Despite the horror of taboo intoxicants suggested by that passage, Gorsuch does not seem to be blinded by pharmacological phobia when he hears drug cases. Two opinions he wrote in 2015—one involving mens rea, the other the Fifth Amendment's ban on compelled self-incrimination—demonstrate a sophisticated understanding of drug policy issues and suggest Gorsuch is less eager than some judges to facilitate enforcement of prohibition by compromising civil liberties. In U.S. v. Makkar, a 2015 case involving Oklahoma convenience store owners arrested for selling "incense" containing a synthetic cannabinoid, Gorsuch noted that the merchants, Iqbal Makkar and Gaurav Sehgal, seemed to be concerned about complying with the law: When questions surfaced about the incense they carried on their shelves, the men spoke with state law enforcement officers, offered to have the officers test the incense to determine its legality, and offered as well to stop selling the product until the results came in. But this cooperation with state authorities apparently won the men little admiration from federal investigators: soon enough they found themselves under indictment and convicted for violating the Controlled Substance Analogue Enforcement Act (Analogue Act), conspiracy, and money laundering. Writing for a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, Gorsuch agreed with Makkar and Sehgal that they had been improperly convicted under the Analogue Act, "a curious animal" that is meant to criminalize production and distribution of psychoactive substances that are not explicitly prohibited by the Controlled Substances Act (CSA). To be covered by the Analogue Act, according to the Supreme Court's interpretation, a substance must be substantially similar in chemical structure and effect to a drug listed in Schedule I or II of the CSA. To convict a supplier of violating the Analogue Act, the government must prove he knew the drug had these features or knew the drug was banned by that law or by the CSA. Gorsuch noted in passing that the Supreme Court's construction of the Analogue Act may not adequately address "vagueness concerns," since "it's an open question...what exactly it means for chemicals to have a 'substantially similar' chemical structure—or effect." In any case, he said, prosecutors failed to prove that Makkar and Sehgal met the law's men rea requirements. "The government didn't attempt to show that Mr. Makkar or Mr. Sehgal knew the incense they sold was unlawful under the CSA or Analogue Act," he writes. No did it try to show the defendants knew the incense contained a substance with a chemical structure similar to that of a Schedule I or II drug. "As far as we can tell," Gorsuch said, "at trial the government introduced no evidence suggesting that the defendants knew anything about the chemical structure of the incense they sold." Instead prosecutors convinced the trial judge to approve "an instruction permitting the jury to infer that the defendants knew the incense they sold had a substantially similar chemical structure to JWH–18 [a synthetic cannabinoid] from the fact they knew the incense had a substantially similar effect to marijuana." That inference is "scientifically unsound," Gorsuch noted, because two substances can have similar effects despite having very different chemical structures. In effect, "the government asked for and won the right to collapse its two separate elemental mens rea burdens into one." Not cool: A court may not "issue instructions that effectively relieve the government of proving each essential element specified by Congress." Gorsuch also faulted the trial court for not letting Makkar and Sehgal "introduce evidence showing that they asked state law enforcement agents to test the incense to assure its legality under state law—and that they offered to stop selling the incense until the results came in." In light of these legal errors, Gorsuch said, the convictions cannot stand, and "it's unclear at this point whether the men can be lawfully retried consistent with the law's demands." Gorsuch—like Antonin Scalia, the late justice he would replace—is a stickler when it comes to requiring the prosecution to prove all the elements of a criminal offense, so it is not surprising he objected to the shortcut the government attempted in this case. His comments about the "vagueness concerns" raised by the Analogue Act are also reminiscent of Scalia, who took seriously the government's duty to give people clear warning of which acts constitute crimes, a basic requirement of due process. In fact, Gorsuch likened the Analogue Act to the Armed Career Criminal Act, the vagueness of which offended Scalia. Gorsuch noted that the "residual clause" of that law serves a function similiar to the Analogue Act, since it "extends the statute's punishments to other, unspecified offenses that can claim similarity to listed ones." In another 2015 case, Feinberg v. Commissioner of Internal Revenue, Gorsuch recognized the weird legal predicament of state-licensed marijuana businesses, which are still treated as criminal enterprises under federal law. The case involved Total Health Concepts, a medical marijuana dispensary in Denver owned by Neil Feinberg, Andrea Feinberg, and Kellie McDonald. The Feinbergs and McDonald challenged the federal law that prevents state-legal marijuana suppliers from claiming business expenses on their tax returns. In response to their lawsuit, the IRS demanded information about their business, which they declined to provide, since it would implicate them in federal felonies. The IRS obtained a U.S. Tax Court order compelling Feinberg et al. to produce the evidence, and they asked the 10th Circuit to overturn that order on Fifth Amendment grounds. The 10th Circuit ultimately concluded that it should not intervene before the tax court had issued a final order in the case. But Gorsuch noted the self-contradictory logic employed by the IRS in defense of the order: Officials at the Department of Justice have now twice instructed field prosecutors that they should generally decline to enforce Congress's statutory command when states like Colorado license operations like THC. At the same time and just across 10th Street in Washington, D.C ., officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws. So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will.... The Fifth Amendment normally shields individuals from having to admit to criminal activity. But, the IRS argued, because DOJ's memoranda generally instruct federal prosecutors not to prosecute cases like this one the petitioners should be forced to divulge the requested information anyway. So it is the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law. Gorsuch questioned whether the DOJ's policy of restraint, which was completely discretionary and could be reversed at any point, obviated Feinberg et al.'s concerns about self-incrimination: In light of questions and possibilities like these, you might be forgiven for wondering whether, memos or no memos, any admission by the petitioners about their involvement in the marijuana trade still involves an "authentic danger of self-incrimination." Maybe especially given the fact that the government's defense in this case is wholly premised on the claim that the petitioners are, in fact, violating federal criminal law. And given the fact that counsel for the government in this appeal candidly acknowledged that neither the existence nor the language of the DOJ memoranda can assure the petitioners that they are now, or will continue to be, safe from prosecution. And given the fact that this court has long explained that, once a witness establishes that "the answers requested would tend to incriminate [him]" under the law of the land, the Fifth Amendment may be properly invoked without regard to anyone's "speculat[ion] [about] whether the witness will in fact be prosecuted." Although these ruminations had no practical effect in this case, they suggest a judge who is sensitive to the problems created by the federal government's continued enforcement of a prohibition policy that most states have rejected. Give the next attorney general's objections to marijuana federalism, that conflict could come before the Supreme Court sometime in the next few years. The SCOTUS nominee plumbs the peculiarities of prohibition in cases involving imitation pot and medical marijuana.
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Begin Trace Mode for Comment # 6.
#1. To: Deckard (#0)
It makes sense to me that the Justice Department does not generally prosecute federal marijuana crimes in states that have legalized the substance, but that the IRS does not permit federal deductions for the expenses of engaging in an illegal enterprise. It makes perfect sense, really: the people avoid jail for their federal crime, but they do not get off Scot free and the federal law is not disregarded, it is simply converted into a tax penalty. It's a good, civilized way to handle these federalist disputes. Your state lets you do something illegal under federal law? That's fine - we won't come in and override the state within the state (unless it's something like slavery or killing people), but states don't get to nullify the federal law either, and the tax law applies to everybody.
That's kinda sloppy ain't it? By that token California, Texas, New Mexico and Arizona can approach immigration law in any way they wish. Taking it to another level, state and municipalities can refuse to prosecute felonies and misdemeanors committed by illegal immigrants. . . (oops!) We can be too "civilized." So civilized that we not only ignore conflict of laws, we begin to ignore our laws entirely. Sometimes I wonder just what kind of a shithouse we're running here anyway.
You're missing my point.
I may have. But what I see is this: "Your state lets you do something illegal under federal law? That's fine . . ." It's one thing to say that perhaps federal law has been allowed to intrude too far upon the rights of state and individual citizen of those states, and there are many here that would agree with that proposition for many reasons. But setting that question aside, trading enforcement of controlled substances provision for taxation, which seems to be a neat way of solving some of the problems prohibition has created, leaves code on the books hanging out there. It seems to me that non-enforcement is part of a corrosive tendency that is infecting our system in many of its limbs and organs. 8 USC 212(f) says "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." Shortly we will hear from a FEDERAL COURT that "any aliens or of any class of aliens" does not mean what it says. It means something else entirely. Words are re-legislated by judges or bureaucrats to suit the passing fancy of this or that group. Every day we see that increasingly the federal code does not mean what it says. That breeds disrespect for the federal law. Scrap the code or enforce what is on the books. Doing otherwise is a symptom of a tired system in disrepair. I respect your writings here. You are man who knows what he's talking about. If I've missed the point, please school me.
#7. To: randge (#6)
I respect your writings here. You are man who knows what he's talking about. If I've missed the point, please school me. Thanks for the kind words. By "fine", I didn't really mean that it was ok. I was using the term conversationally, as in "Oh, so you're going to do THAT, are you? And you're going to rely on the fact that I can't dig you out. Ok then, FINE, I'll just do THIS instead. I agree with you that it would be wonderful if we thinned out the statute books. Trump is doing that with regulations, or says he's going to try. In an ideal world, that would happen. But in the real world, it won't, and popular pressure in some states, left wing ones, has simply overridden federal law on drugs and established their own. They're not going to back down, and the President is not going to declare a rebellion and send in the army over it. So we have an impasse: drugs are illegal, but they're legal THERE, with all of the consequences that brings. Politically that can't be undone quickly. What CAN be done, though, is to enforce the part of the law that is still easily enforced: grab the money and don't let the BUSINESSES make anything like the profits they'd like. Force people in states where pot is legal who want to grow it to sell to be disadvantaged relative to legitimate lines of work, by not letting them deduct the costs of doing business. This makes perfect sense in an imperfect world. It takes the joy out of the breaking of federal law for the businessmen engaged in it, puts them at a massive disadvantage relative to legitimate work, exposes them to tax fraud prosecution when they lie, and also leaves them exposed to the fully illegal mafia who want that turf. They can still do it, but they'll pay out the nose and hurt for it. In that way, by going after their wallets and putting them in Catch-22 situations, you punish them quite harshly for trying to profit from a state getting away with flouting Federal law. They don't REALLY get away with it. If you can't take the castle by force, besiege it and throw infected carcasses over the wall so they all get diseases and die inside. Takes longer, is nastier, and in the end might not succeed, but the defiant people who raised the fist of armed rebellion when they should not STILL pay dearly and suffer a lot, even if at the end some of them survive and their cause wins. The British didn't HAVE to burn Washington DC. It served no military purpose at all. It wasn't going to conquer America. It was just plain nasty. But it taught the Americans a lesson: fear. We can't conquer you, but we CAN land forces and burn all of your cities, pretty much at will., AND WE WILL, so don't think you can just keep going to war with us. You're not strong enough. It's like the Cuba embargo. It's sort of being lifted. The Cubans "won", but it cost them 50 years of their development they will never get back. And it didn't hurt us at all. So even if you can't enforce the whole law, when people are defiant you can still hurt them, annoy them, destroy individuals, and teach them to fear, so they are no so hasty to think they can just go break ANOTHER law, and then another. They "win" the point, but they pay for it. Growing marijuana is illegal. A state rebels and protects it. That's fine. But you can't protect the MONEY of the pot growers. So, the broader government can still make its law felt by confiscating the money of the growers, through taxes. And it can essentially imprison the growers in their states as well, because they could be arrested in other places. Make them pay the cost of defiance. They may win in the end, but they'll be crippled for life for having done it. That discourages many other people from trying it. That was my point, really.
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#4. To: Vicomte13 (#1)
Your state lets you do something illegal under federal law
#5. To: randge (#4)
#6. To: Vicomte13 (#5)
You're missing my point.
Replies to Comment # 6. Scrap the code or enforce what is on the books. Doing otherwise is a symptom of a tired system in disrepair.
End Trace Mode for Comment # 6.
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