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February 24, 2012

Does everyone agree that feds ought not bother prosecuting "ordinary drug crimes"?

The question in the title of this post is prompted by this recent piece appearing in The National Law Journal authored by Vikrant P. Reddy and titled "10th Amendment applies to criminal justice, too."  Here are some excerpts:

When the current U.S. Supreme Court term began, Justice Antonin Scalia made headlines by appearing before the Senate Judiciary Committee and testifying that "[i]t was a great mistake to put routine drug offenses into the federal courts."

Scalia was not arguing that drugs should be legal, but rather that there is a limit to what the federal government is competent, and constitutionally, permitted to do.  Ordinary drug crimes are better left to state and local governments.

Essentially, Scalia was calling for a revival of 10th Amendment principles.  The 10th Amendment to the U.S. Constitution reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Many Americans argue that this provision is being ignored by a federal government that seizes an ever-larger role in health care, environmental regulation, and other economic matters.  Less remarked upon, but equally troubling, is the federal government's increased jurisdiction over routine matters of criminal law....

In Federalist No. 17, Alexander Hamilton observed that "[t]here is one transcendent advantage belonging to the province of the state governments…the ordinary administration of criminal and civil justice."  Most drug offenses require only the ordinary administration of criminal justice.  Federal agencies such as the FBI have limited resources, and priorities like terrorism and espionage should take precedence.

As Scalia pointed out, the glut of drug offenses has also overwhelmed the federal judiciary. Federal judges, who are supposed to be devoting their attention to complex constitutional problems, find their dockets increasingly clogged with minor drug crimes....

Although a greater percentage of federal cases involve trafficking drugs rather than simple possession, most of those are not international kingpins or gang leaders but rather "mules" or street dealers selling to support a habit.  Though these are serious cases often inappropriate for diversions, they are prosecuted successfully every day in all 50 state court systems....

Returning routine drug laws to state and local government is both sound policy and would be faithful to the U.S. Constitution.  It should be an area where all Americans can find consensus.

I share the view that many benefits could flow from the feds getting out of the business of prosecuting nearly all local drug crimes except when very large quantities or significant violence is involved in this offense.  But I suspect some readers of this blog might contend that rarely now do the feds bother with truly "ordinary" drug crimes and/or that what might be deemed an "ordinary" drug crime in New York City or Los Angeles is in fact extraordinary drug crime (and justifies federal involvement) when committed in, say, Manhattan, Kansas or Los Lunas, New Mexico.

February 24, 2012 at 04:25 PM | Permalink


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the feds bother with ordinary drug crime all the time. i have had clients over my 20+years in my district who had as little as a gram. many, many crack cases in my district to this day involve 5 or 7 grams. federal prosecution of these crimes is a welfare program for states that don't want to prosecute, or more importantly, penalize their citizens. many of the tiny, tiny cases were guys who had twice gotten probation from state courts for similar amounts. the feds picked up their third sale and called it prosecuting career offenders. absurd. career pests, absolutely, but guys deserving 14 or 17 years in federal prison, i don't think so.

i'm not for legalizing all drugs. i think we should legalize marijuana immediately and make it a public health issue like tobacco. why we insist on creating a lucrative market in marijuana that can bankroll other cartel-delivered drugs is beyond my comprehension. why we think the violence that goes along with the illicit marijuana trade is more dangerous than the risk of some people being stoners is beyond me. maybe it's cause marijuana is bulky and thus is the easiest thing to interdict and fills up more space in the photos waved around in court and everyone loves being a winner.

Posted by: big bad wolf | Feb 24, 2012 7:04:01 PM

big bad wolf --

Wouldn't you think that a guy who got caught twice and was given a break twice would wise up and not try for Number 3? It's a little odd for a defendant to complain about what happens at the back end when, with the most minimal self-restraint, there never would have been a front end.

Posted by: Bill Otis | Feb 24, 2012 7:32:21 PM

true bill. BUT it still doesn't rise to the lvl of a FEDERAL crime!

That should be reserved for REAL big boys! You know the ones running the stuff in from OUTSIDE the country or running MULTI STATE GANGS!

the local shit should be LOCAL!

Posted by: rodsmith | Feb 25, 2012 1:32:59 AM

bill, i acknowledge that he should have wised up and i am not willing to go so far as rod and say it cannot be a federal crime (i really don't see that limitation once interstate commerce gives us the hook to criminalize drugs). but i do see such prosecutions as failures of prosecutorial discretion---both in bringing the cases and in advocating for 14 or 17 years in prison. i really don't know how the ausas in my district convinced themselves that was just or even a wise use of resources. and it does bother me that the state can ignore its responsibilities cause maybe it can get the other 49 to pay for locking the guy up. maybe if we locked him up for 2 years, i'd be more understanding. sending him away as a career offender reflects poorly, i think, on both the state and the feds. the problem, i think, is not that he was given a break twice, but that the state gave itself a break twice because probation is cheaper than prison or treatment.

Posted by: big bad wolf | Feb 25, 2012 3:00:36 AM

Past a certain age, people have trouble changing their minds. So we have to wait for them to die before change can come. That is another advantage of the periodic arrest, trial and execution of the entire lawyer hierarchy. The sclerotic effect of the lifetime appointment would also end. Every 20 years, eradicate them, and replace them with younger people, to refresh and reboot the thinking in the law, get rid of obsolete and false thinking. There should be aero tolerance for Church based, supernatural legal utterances. There should be zero tolerance for anti-family, feminist utterances or statistically proven bias in appellate decisions. If someone's jurisdiction is undergoing increases in crimes, or decreases in economic prosperity, offer the choice of resignation or eradication at that time. Do not wait 20 years for the standard clean sweep. The appellate bench should be seen as expendable cult criminal rabble, a type of toxic pestilence, worthless human beings, whose removal can only help the public, by ending their rent seeking, a criminal enterprise, itself.

Posted by: Supremacy Claus | Feb 25, 2012 6:20:57 AM

i agree big bad wolf!

"and it does bother me that the state can ignore its responsibilities cause maybe it can get the other 49 to pay for locking the guy up"

Until he starts moving and dealing drugs ACROSS state lines he is a LOCAL and STATE problem. They need to deal with it. Now if they continue to refuse to do so. Then instead of the fed's reaching down and dealing with him. They would do better to deal with the STATE GOVT that refuses to handle it's responsibilites.

I deal with the same thing day in and day out in industrial plants around the country. Takes me forever to get it into some managements. You cannot wander the plant and just give orders to anyone you please. Yes you may be the boss of the whole place. BUT you have a very detailed setup of who gives orders to who. It's not your job to give orders to the line workers! They have a boss. If you think they need to be doing something they are not doing! Tell THEIR BOSS to deal with it!

Posted by: rodsmith | Feb 25, 2012 11:55:08 AM

Scalia is probably right from a theoretical standpoint. But the reality is that federal prosecutions make streets safer. A lot of times you can get some serious time for hardened criminals with federal prosecutions, and that takes a serious bite out of crime.

Posted by: federalist | Feb 25, 2012 12:07:12 PM

My district typically declines all prosecutions and defers to the state if the quantities don't meet these thressholds, and that includes distributions:

50 grams crack cocaine
500 grams (½ kilo) powder cocaine
100 grams heroin
300 kilograms marijuana
50 grams methamphetamine
1000 tablets ecstasy/MDMA

If a gun was used to further the drug offenses, then we sometimes we'll accept cases below these amounts, but it depends on how closely you can tie the drugs to the guns.

Posted by: domino | Feb 25, 2012 12:50:47 PM

big bad wolf --

Were I back in the USAO, I doubt I would have gone for a career offender sentence for the piddling amount you describe. The agents might have thought he was a dealer but was clever enough never to get caught dealing -- obviously I don't know.

In the EDVA when I was there, I never heard of anyone's getting career offender for amounts like that, although the judges would go up quite a bit for the third time.

Just as an aside, I truly do not understand why people think they have to have pot.

Posted by: Bill Otis | Feb 25, 2012 1:12:34 PM

This is just a question. Does the jurisdiction have a relationship to the ease of forfeiture or the size of forfeiture? I speaking about an unspoken relationship.

Posted by: beth | Feb 25, 2012 2:02:39 PM


Whether or not to charge a person with trafficking is up to the USAO. Whether or not a person is a career offender is not up to the USAO. Career offender status is a function of the offender's record and how that record is treated by the USSG. Maybe you are thinking about a 21:851 notice that doubles the mandatory minimum or maybe ACCA. In any event, these "piddingly amounts" as you call them were the bread and butter for the 30 or so ATF cases I have handled for over 20 years in my district. Until the recent change, five grams of crack & gun got the offender 10 years.

Posted by: ? | Feb 25, 2012 5:40:20 PM

There's a lot of confusion going on, in the quoted article, in the comments.

The article is wrong to suggest that Scalia believes the federal government is not "constitutionally permitted" to punish drug transactions. His vote and opinion in the Raich medical-marijuana case make clear that he doesn't see federal drug prosecutions as a constitutional problem. He may see them as unwise -- although it seems his concern has more to do with the effect on district court dockets than on a deep-seated constitutional principle.

Interesting that nobody's saying that there are sometimes benefits to bringing cases in federal court instead of state court. For one thing, the defense lawyering will often be better, for the simple reason that FPD and federal CJA lawyers are better resourced and better paid than most state PDs and appointed counsel. In addition, criminal-defense types who bemoan the lack of independence in elected state judiciaries may want to think about whether (putting aside complaints about the sentence) the process is more fair in federal courts, and leads to more reliable determinations of guilt or innocence. (In addition, federal prisons are usually a lot safer and more comfortable than state prisons.)

Without speaking to the exact quantities involved, I can say that my sense is that domino's examples are instructive as to how federal prosecution decisions are made in most of the country's larger districts (which, after all, are responsible for a large proportion of the country's overall federal prosecutions.) No USAO in any major metropolitan area takes every case over 5g of crack, or anything even close. They typically have written guidelines that require much larger amounts of drugs, or a substantial record of violent crime, or the presence of significant weapons or gang ties before federal prosecution will be considered.

Indeed, the last comment before mine shows how misleading some of the complaints are. After all the complaining that the feds simply take any small-quantity drug dealer, the commenter admits that the prosecutions he's talking about have all involved guns as well. (Anyone have any doubt about what drug dealers and guns leads to? It ain't pretty...)

Posted by: What?? | Feb 25, 2012 7:13:14 PM

I'm seeing that the feds take users that had a minimal role as a mule and give them guideline sentencee...Happens all the time around here...The feds accept most anything, no matter how small..

Garden variety drug cases are now part of the daily load of the feds..

They just don't get it. Oh well its just a small part of the grotest fat that the feds waste...They have no clue what a job is all about...

Posted by: Josh2 | Feb 25, 2012 9:52:29 PM

May I say the unspeakable? They will take small cases to keep their jobs and budgets.

Posted by: Supremacy Claus | Feb 25, 2012 10:51:40 PM

Just wondering....if the USAO has a discussion about whether or not to charge some cases and if that discussion is documented??

Posted by: Curious | Feb 26, 2012 1:12:04 AM

Hi Dianne. Wally here in Rochester. Interesting issue that you bring up here. Do you have access to Federal Law? I'd like you to take a look at our Federal Drug Laws for a second. You go to Title 21 U.S.C. Section 801. It is the scope of all the drug laws presently holding most of us captive. It is in actuality the law passed by Congress to legitimize the Federal Government to nose its way into crimes that would otherwise and should be "State" offenses. As you know; when a crime is committed by crossing State lines, it becomes an offense under Federal jurisdiction. But think about this for a moment! John Doe is standing on a corner and he sells John Smith a quantity of drugs. Federal offense or State offense? Any person with common sense would say State offense. Right? Wrong! When you read Section 801 you will see how Congress opened the door for this. What they basically say is that; since it is virtually impossible to distinguish "interstate" drugs from "intrastate" drugs; for the purpose of this entire Chapter, "all drugs" will be considered "interstate". Have you ever heard of anything like that in your life? The crime was not interstate! John Doe was standing in one state, committed an offense, and never left the state. But the Federal Government, in its need to fill its courtrooms and prisons, decides to utilize the interstate commerce ticket by merely alleging, without out having so much as the burden of proof, that "all" drugs are interstate. In actuality then; "all crime" is interstate. "All crime". If your in a car committing the offense; the car was manufactured in another State. It crossed State lines. If someone is shot with a firearm; it is a Federal offense. The weapon was made in another State. If the crime involved cash. The cash crossed State lines. And so on and so on and so on. Our Congress is a Ponzi Game Dianne. Nothing less! Congress could end this madness that we perpetually kick around year after year, in a single session. They have no intentions of doing so. They no longer write Law Dianne. They write "Guidelines" that are subject to the discretion of various Government Agencies. Laws were meant to be "clear" and "specific". Congress writes laws that are "vague" and "ambiguous". Scalia is no better. The Supreme Court is a fluke itself. It too could have cleared most of the problem up with rulings in cases that address every issue conceivable. Yet; our illustrious Supreme Court chooses to skirt and avoid doing so with terminology in their opinions such as, "We leave for another day the issue of..."! Why? Why for another day? They could have cleared it up but choose instead to write volumes of rhetoric that dances around the purpose of the case being before them in the first place. Justice Thomas, in a case named Torres, admittingly stated that he made the wrong decision. (His was the deciding vote). He stated that given the chance in another case to correct it; he would do so. He's a liar Dianne. He has had many many opportunities to do so and has not! (The case dealt with "prior offenses" and how they are used to enhance sentences. Torres is the reason that Apprendi and Booker do not apply to all of us; and there are a lot of us; that have had sentences tripled because of "prior" crimes). The Federal Government wanted to create a huge prison system and it has. Congress made that happen with Section 801. And you know what else Dianne? In any criminal proceedings; the Government is "supposed" to have the "BURDEN OF PROOF"! Why is it that no attorney in any action before the Courts; forces the Government to fulfill its obligation before the trial even starts? Should they not have to prove "jurisdiction" by showing that an interstate violation has in fact taken place? You will never see a Federal Judge in this country allow such a challenge. The reason? If successful; they would have to overturn every Federal drug conviction on the books. :-} What a thought! Huh? :-} Get a Congressman to change Section 801 and require a Burden of Proof Diane. That would return the jurisdiction to its rightful owners. Thanks again. Wally P.
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Posted by: dianne | Feb 26, 2012 1:39:58 PM

Bill Otis: "Wouldn't you think that a guy who got caught twice and was given a break twice would wise up and not try for Number 3?"

Wouldn't you think that a guy who got caught twice and was given a break twice had a drug problem which resulted in getting caught 3 times?

Posted by: Huh? | Feb 26, 2012 2:38:35 PM

I recall a case where a young woman had twice been convicted in state court for relatively minor marijuana delivery felonies, and got probation both times. Later, she made a terrible choice of boyfriends, and got caught up in his meth distribution business. One thing led to another, and she found herself named as a defendant in federal court for conspiracy to traffic in meth. Because of her two prior convictions, and the quantity of meth involved in the new offense, she was facing a mandatory life sentence. Because she eventually pleaded guilty and cooperated, she ended up with "only" a 17 yr sentence.

The case made me wonder whether, if she had only received a more meaningful sentence her second time around....say 2 or 3 years (along with some meaningful substance abuse treatment)....she might have disliked that experience enough so that she might have been more careful about re-offending. That may be totally fanciful, too. But I just wonder whether too lenient sentencing for young, first and second time offenders doesn't unfortunately reinforce in them the notion that drug crime is obviously no big deal...which may be true until they draw the short straw and find themselves in federal court, with its truly canabalistic penalty possibilities.

Posted by: rick | Feb 26, 2012 4:40:54 PM

We elect people to pass and amend criminal laws they do not understand to regulate behavior they do not understand that achieves results they do not understand.

It is easy to understand why they get contradictory complaints.

The normal response to contradictory complaints is to do nothing. They are very good at that.

Posted by: John Neff | Feb 26, 2012 5:24:44 PM

Huh? --

"Wouldn't you think that a guy who got caught twice and was given a break twice had a drug problem which resulted in getting caught 3 times?"

I'd think that the central mission of adult life is learning to solve your "problems" without breaking the law.

I'd also think that wanting to get high is less a "problem" than a self-indulgent desire.

Posted by: Bill Otis | Feb 26, 2012 7:20:25 PM

"May I say the unspeakable? They will take small cases to keep their jobs and budgets."

The Truth in so few words. Well done, Mr. Supremacy Claus.

Posted by: Jay | Feb 27, 2012 9:59:39 AM

Jay --

Then let the complaining cease when they take the big cases.

Think that will happen?

Of course we all know it's not going to happen, because the real gripe is that they take ANY cases rather than just turn their backs on (unpopular, on this site) drug laws.

Posted by: Bill Otis | Feb 27, 2012 1:51:40 PM

Perhaps, I can tell you of my story to shed some light. 22yrs old. arrested for aiding and abetting distribution of some 80mg of attributable weight of lsd and approx. 12 gms of "mixture of substance" of the same. I had a prior offense of marijuana. I plead guilty then for possession with intent dist. at age 18. I was young and did not know the meaning of this offense and thought it was a great deal since I would get but couple yrs summary probation. shortly thereafter like literally 2 weeks I was arrested for carry an unregistered firearm a misdemeanor offense.
When I was finally indicted I was facing career offender. 365 months to life for having aided and abetted. I was 22 yrs old. Do you think a kid should spend his entire life in prison because he was young and dumb? I beat the career offender by pure luck. I have two degrees and am working on number three am gainfully employed.
I still spent 10 yrs of my life in prison but I can tell you this career offender, or even the mandatory minimums are absolutely absurd. I was transferred from prison to prison. 8 in all. for a few hits of LSD? come on. Save tax payers money for something more serious. I am not violent. I have never even been in a fight. the amount of resources it took to do this to me would allow most people to retire comfortably. I can assure you I am not the only one with a story like this. its sickening the waste of resources these indictments. I make good money and I give nearly half to the IRS for this? The 5k1.1 totally eliminates any chance of locking up the "big fish" Our judicial system has become one big joke. Screw the defendant!!! do you have any idea how much it costs to lock that low life crack addict up for some 20-30 years???? excuse me but #$** that!!!

Posted by: previous defendant | Jul 21, 2013 9:02:12 PM

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