I’ve been tied up in a capital murder trial for the last couple of months, and as a result have not been able to do much else. So I didn’t have time to comment on the criminal justice issues that were involved in the recent election. The most significant of those are the votes in Colorado and Washington to legalize the possession of small amounts of marijuana. As you would guess, it didn’t take the feds long to say they were going to challenge the legislation.
The concept of State’s rights is basically a myth when it comes to criminal law. Almost anything can be turned into a federal crime. Drugs are one of the areas that the feds have basically taken over. They do so through the interstate commerce clause – the theory is that drug trafficking impacts interstate commerce, and it has been consistently upheld. As a result, the feds claim control of drug regulation – which means that the States don’t have the authority to determine what is or is not legal. The issue will be whether that authority applies to simple possession for personal use – which is something an individual does entirely within the State.
I have no idea how this will play out – if I had to guess I would say the federal courts will side with the federal government – imagine that. The more interesting question for me is whether this is an indication of a shift in attitudes about marijuana use. Is it now something that most people view as no different than alcohol use? Only time will tell.