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June 7, 2008

A notable approach to drug sentencing in Argentina

It appears that reefer madness may be taking over in Argentina, according to this article in today's Washington Post.  The piece is headlined "In Argentine Drug Courts, A Shocker at Sentencing," and here are excerpts:

After getting caught with contraband like ecstasy tablets and marijuana, a few young Argentines have been asked by judges recently to pay an unexpected price for breaking the nation's drug laws: None at all.

That's because separate federal tribunals here have ruled that a law penalizing the personal use of drugs is unconstitutional. Two offenders have been let off the hook in Buenos Aires. And this week another group of judges echoed the ruling after considering the case of a young man arrested with marijuana.  "Criminalization will only apply in cases where the possession of narcotics for personal consumption represents a danger for the public health of others," the judges announced....

Some high-level government officials say the current laws only penalize the victims of drug abuse -- the addicts who need treatment -- and take the focus off the true criminals, namely the traffickers. While a legislative panel works to propose a rewrite of the drug laws with that idea in mind, the judges have chosen not to wait for a new law to be passed.

Those judges, of course, are now the targets of praise and condemnation from social critics who interpret the ruling as either an example of modern enlightenment or an invitation for things to get out of control.

June 7, 2008 at 09:53 AM | Permalink


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I believe federal marijuana convictions have been challenged many times in this country on the same "privacy" and "no-harm-no-foul" grounds the Argentine courts used. I do not believe a single one of those challenges has succeeded. And the Supreme Court's outcome in Raich v. Gonzales, per Justice Stevens, makes it very difficult to believe that this will change anytime soon.

Whether marijuana use should be legalized is a matter for Congress to decide, not the federal courts. The legalization debate reminds me of the death penalty debate: The federal courts, and the Supreme Court in particular, have held for decades that the death penalty is not per se a violation of the Eighth Amendment. If precedent is to be honored -- as we are told repeatedly that it must be when the subject is, for example, Roe v. Wade -- then what happened in Argentina will, as they say, stay in Argentina.

The criminalized status of marijuana having been found not to infringe the Constitution, legalizers' only proper recourse is to win their argument WITH THE PUBLIC. This is likely to involve persuading a majority that marijuana is good for you. Since it isn't, federal law on the subject is probably going to stay as it is.

It's not too much to ask legalizers to win their case either with the judiciary or with the electorate. Having failed to do either despite years of media campaigning must be frustrating to them, I agree. But "elite opinion" does not get to call the shots simply because it has convinced itself that it is More Enlightened Than The Unwashed Masses. Nose-in-the-air certitude is not a sign of correctness. It is a sign of arrogance.

Posted by: Bill Otis | Jun 7, 2008 10:52:30 AM

The Mexican Congress passed a bill dicriminalizing the possession of marijuana for personal use, but under pressure from Bush, the President veto it.

Posted by: EJ | Jun 7, 2008 12:27:20 PM

I am one who thinks that Marijuana should be decriminalized. I don't use it but tired of footing the bill to jail these non violent people. I just read over on the think outside the cage blog some places in Colorado have voted to make marijuana possession the lowest priority for the police. I wonder why they would do that??

Posted by: USMC | Jun 8, 2008 1:47:16 PM

Interestingly enough, Bill, in the 1970s, the ultra conservative state of Virginia came very close to legalizing Marijuana passing one house and falling only a couple of votes short in the General Assembly (or passing both houses and getting vetoed by the governor - it was a while since the article appeared in the Richmond Times Dispatch about Virginia's somewhat legendary marijuana lobbyists who among his more legendary exploits was taking a marijuana plant into a committee hearing and pulling it in the middle of a hearing asking whether it was reasonable for someone to be sent to prison for possessing it). Of course, he (and it was essentially a one man opeation) did succeed in getting the penalty for simple possession of marijuana lowered to a max of 30 days in jail (which under Virginia law means a max of 15 days in jail) and the first offender program assures that first time offenders almost always get off entirely. Heck, even selling marijuana in Virginia is often treated less harshly then simple possession of cocaine.

However, it seems that far from respecting the rights to the people to make the decision for themselves through intiative (such as in California) or through the General Assembly, that the federal government is instead trying to cut off the political process - thus, it appears that as long as the feds are against marijuana that efforts at the state level to decriminalize marijuana could be useless. Don't discount the political movement to legalize marijuana - especially at the state level, but it seems that action in Congress will also be needed (also wonder if like Roe v. Wade if half the states legalize marijuana in a 10 year period (which happened with abortion - in fact, there are some legal historians that believe that had the Supreme Court not intervened, anti-abortion laws would have likely entirely disappeared within a decade since there was a strong movement to legalize abortion mainly on public health grounds) then suddenly there might a privacy right that appears)

Don't discount the political movement to legalize marijuana - marijuana is de facto legal in several states already due to weakening of the anti-marijuana laws.

Posted by: Zack | Jun 9, 2008 12:49:17 PM

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