Federal vs. State Policy Comparison: War on Vice

| January 10, 2011 | 0 Comments

state-vs-fedsUnderstanding the roles of the state and federal government in the current “war on drugs” is important this, of course leading to our ability to decipher the current policies attached. Current policy is based in federal statutes and legal precedence’s from the Racketeering Influenced and Corrupt Organizations act of 1970 to the Drug Abuse Prevention and Control act of 2010, there has been a standard set within the United States regarding personal vice-related crime. One approach in particular is the current legislation in various states concerning medical marijuana use and the federal approach to this. The object of the following article is to look at the federal law enforcement and judiciary as well as local state approaches, Arizona in particular. Addressed within the paper will be policy development and the implementation of the above-mentioned policies, by both state and federal governments.

In 1970 the Racketeering Influenced and Corrupt Organizations (RICO) act was passed, the intent was to allow the prosecution of multiple “arms” of crime with a relatively simple approach categorizing all involved under an umbrella categorization. This act of Congress can and has been applied to common street gangs and global organized crime structures. This act of congress created new types of crime, and brought back the idea of property forfeiture as a punishment for crimes or suspected involvement in crimes. One example of a new type of crime would be that of someone who sold a vehicle to a suspected member of organized crime. Under the RICO act, the person who sold the vehicle could be held to account and have his entire business seized as “evidence” of the crime committed.

The RICO act declares it a crime to (a) use income derived from a pattern of racketeering activity to acquire an interest in an enterprise affecting interstate commerce, (b) acquire or maintain an interest in an enterprise affecting interstate commerce through a pattern of racketeering activity, (c) conduct or participate through a pattern of racketeering activity in the affairs of an enterprise affecting interstate commerce, or (d) conspire to carry out any of the foregoing actions. Understandably absent from RICO is any required mental state: violation of RICO does not require intent, recklessness, willfulness, or even knowledge on the part of the accused. (18 U.S.C. §1961 et seq.)

In 2010, the Drug Abuse Prevention and Control act was passed and as with the RICO act, new types of crime stand to be generated as a direct result.

Congress makes the following declarations:

(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.

(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.

(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. (21 USC CHAPTER 13, 2010)

Federal agencies are committed to prosecuting and stopping what is deemed as illegal behavior and use the RICO act and the Drug Abuse Prevention and Control act to do so. The Drug Enforcement Administration currently employs more than 10,000 persons and has an annual budget of more than two billion dollars annually (DEA Staffing & Budget, 2010); this total budget does not include the amounts spent by the states individually or expenses incurred through lost incomes, and incarceration. Over 5000 of those employees are special agents tasked with the enforcement of the above-mentioned laws. Because federal law enforcement officials are tasked with enforcing federal, state, and local laws jurisdiction is always given to federal agents when necessary.

Legally by using the “supremacy clause” of the Constitution, the Federal government is allowed to enforce federal laws regardless of current state statutes. An example of this follows, “Winslow Norton, 26, of Lafayette, and Abraham Norton, 23, of Oakland, were arrested this morning, after law enforcement served multiple search warrants in relation to the investigation. The indictment was filed on October 25, 2007” (McEnry, 2007 pg. 1) Although these brothers had violated federal law, state law allowed them to both manufacture and sell marijuana to those with a medical license. Not only had these brothers been licensed by the state, they also had followed protocol completely, experiencing regular checks by Almeda County sheriffs and paying their taxes. This is an example of misuse of federal law within a state. Drug related legislation is not specifically designated within the Constitution so the Supremacy clause should have been found null and void in this case. Drug-related federal legislation while being enacted under treasury guidelines does not constitute a willful tax-related violation, though it is technically a tax code violation.

This case could have been successfully argued in favor of the defendant using the Tenth Amendment, and prior case law with regards to states’ rights superseding federal involvement in many cases, most notably the 1997 decision, Printz v. United States (95-1478), 521 U.S. 898. “It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect.” (para. 31) This case was referring to the Brady Law, which at the time was an attempt to impose sanctions against states by the federal government with regard to firearms. However, the decision rests on the idea that state sovereignty is a founding principle of the United States of America.

Within the state of Arizona, drug laws and regulations mimic those of the federal government with varying degrees of punishment existing based on the offense. The RICO act has been used in the state of Arizona as a profitable venture for local law enforcement. According to how the RICO act is set up, local agents and organizations can keep a certain percentage of funds or contraband seized, and after auctions are complete uses that money within the local departments. In 2007 Maricopa County sheriff’s deputies shut down a gambling ring, “The announcement of the bust also came with pronouncements of a potential windfall for the participating law-enforcement agencies. Sheriff’s officials boasted that law-enforcement agencies expected to collect $145 million in confiscated assets before Operation High Stakes was done.” (Hensley, 2009 pg. 1) However, after the case went to trial and charges were dismissed against key persons the money and property was returned. This is one example of the use of the RICO act within state boundaries by state law enforcement versus federal agents.

Current policy regarding drug use in Arizona varies more than many states, “Arizona diverts all its addicted offenders from prisons to probation, in line with the results of a referendum provision called the Drug Medicalization, Prevention and Control Act, which Arizona voters approved by a 65 to 35 percent margin.” (Law.jrank, 2010) This should not be taken to assume that drug related offenses are not punished with incarceration, however, it can be noted that treatment is used more often for those who are currently addicted to illegal or abused legal substances.

Another example of drug related charges being reversed that involve the law enforcement community and our state appellate court follows, “The state appellate court has overturned the cocaine-transportation conviction of a Canadian man passing through Flagstaff after ruling the search of his vehicle was illegal. The reason: The Arizona Department of Public Safety officer who stopped Alvin J. Sweeney, 53, didn’t have reasonable suspicion to search his vehicle.” (Hendricks, 2010 pg. 1)

As can be seen there are differences existing in the state versus federal approach to current legislative approaches with regard to drugs, and vice-related legislation. Many of those differences stem from the desire of the federal government to have complete control over certain aspects of the law, whereas the states in their attempt to curb crime within their borders are at odds with the federal approach in many cases. Policy differences can cause confusion and as has been shown, can allow for potential conflicts within the law enforcement and judicial communities. A potential for loss of states’ rights as outlined in the Tenth Amendment can occur when cases are not argued using that important amendment to the Constitution.

Reference page:

18 U.S.C. §1961 et seq., Initials. (1961). U.s. code title 18,  part I,  chapter 96 ,  § 1961.

Cornell University Law School, RICO. Retrieved from http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001961—-000-.html

21 USC CHAPTER 13, . (2010).

Title 21 – food and drugs chapter 13 – drug abuse prevention and control. U.S. Code, Sec 801. Retrieved from http://uscode.house.gov/download/pls/21C13.txt

DEA Staffing & Budget, . (2010). U.s. drug enforcement administration.

Retrieved from http://www.justice.gov/dea/agency/staffing.htm

Hendricks, L. (2010, April 7). Highway drug conviction tossed.

Retrieved from http://azdailysun.com/news/local/crime-and-courts/article_6ed53536-140a-54fe-a502-464dcc7c95c7.html

Hensley, JJ. (2009, October 5).

Rico law criticized as open to abuse police accused of being zealous in seizing assets. Retrieved from http://www.azcentral.com/news/election/azelections/articles/2009/10/05/20091005ricoseize1005.html

Law.jrank, . (2010). Prisons: problems and prospects –

prisons and the war on drugs prisons: problems and prospects – prisons and the war on drugs – percent, women, prisoners, offenders, addicts, and treatment. Retrieved from http://law.jrank.org/pages/1809/Prisons-Problems-Prospects-Prisons-war-on-drugs.html

McEnry, C. (2007, October). Iras seized as part of marijuana investigation.

Retrieved from http://www.justice.gov/dea/pubs/states/newsrel/sanfran103107.html

Printz v. United States, . (1997). Printz v. united states (95-1478), 521 u.s. 898 (1997).

Retrieved from http://www.law.cornell.edu/supct/html/95-1478.ZO.html

Please understand that I am not supporting the current policy as it is a failure, in fact I am attempting to shed light on that failure. Also understand that as a result of research made I am quite sure at this point in time that the regardless of whether we “follow” the constitution or not the same result will occur. After all the Constitution in effect allows many of these “failures” and encourages them. I would prefer that this country were still under the “guidance” of the Articles of Confederation, of course of that were the case our nation would not be as large, and our military would not be killing innocent people and losing young men and women citizens of this nation to support political and corporate goals that have nothing to do with freedom.

Originally posted at Examiner.com © Jesse Mathewson

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