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April 29, 2008

This is why your brain, after being on drugs, cannot go to college

This post at How Appealing lead me to this post at the School Law Blog providing this report on a new Eighth Circuit ruling:

A federal appeals court has rejected a constitutional challenge to a federal law that restricts, and in some cases bars, students with drug convictions from participation in federal college aid programs.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in Students for Sensible Drug Policy Foundation v. Spellings that the controversial sanctions do not violate the double-jeopardy clause of the 5th Amendment.

The student group argued that the primary purpose of the law is deterrence of criminal action, so the secondary sanction on those convicted of drug crimes is form of double jeopardy. But the court noted that, under the law, a student may restore his or her eligibility for federal student aid by completing a drug-rehabilitation program.

The relatively brief ruling from the Eigth Circuit is available at this link.

April 29, 2008 at 07:30 PM | Permalink


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Tracked on May 1, 2008 4:46:21 AM


This law is irrational. All irrational laws violate due process. And I contend the Constitution does not authorize Congress to make irrational laws under any enumerated power. Implicit in the enumerated powers granted Congress is that its' legislature will be rational. I'm not talking about rational basis tests, I'm talking about rational. I contend Congress does not have the authority, for example, to require hamburgers sold on wednesdays in or affecting interstate commerce to be served on sesame seed buns. I contend Congress does not have the authority to pass a "Pi Bill" declaring the value of pi is equal to 3.20. Likewise, I contend Congress does not have the authority to deny an education to people based on drug convictions. Of course, I also contend drug prohibition has proved to be irrational (some things are irrational on their face, some things are irrational in practice/as applied). A law may have to be passed before it can be determined to be irrational.

All irrational laws and regulations are unconstitutional as ultra vires actions on the part of Congress, and to the extent they affect individual citizens, they violate due process. And all citizens should have standing to challenge irrational laws. Moreover, to allow the state to defeat a provable claim of irrationality by asserting a pretextual "interest" would allow all irrational laws. Laws should stand on their own, the "interest" of the government should be absolutely irrelevant.

Posted by: bruce | Apr 29, 2008 9:09:50 PM

Well unlike many laws that are being passed today, that laws has a way to make amends and be eligible for said programs.

If the law didn't have a way out then i'd consider it irrational too.

Posted by: Mark | Apr 29, 2008 9:25:20 PM

Interesting to contrast these two citations:

“[A]ll civil penalties have some deterrent effect. . . . If a sanction must be ‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.” Hudson, 522 U.S.at 102;

“The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” Smith, 538 U.S. at 102, quoting Ursery, 518 U.S. at 290.

If the deterrent effect of a civil penalty is dismissed as basis for qualifying a penalty as punitive because to do otherwise would subject all such penalties to the risk of criminal classification, it doesn't seem to comport to hold that any "rational connection to a nonpunitive purpose" can, seemingly on its own, classify an action as nonpunitive. The latter logic seems to equally exclude all such penalties from the risk of criminal classification.

Posted by: | Apr 29, 2008 11:24:00 PM

And that's exactly how it should be. "Civil penalty" is an oxymoron. There should be no such thing as a civil penalty. A penalty, whether $100 fine or execution by firing squad, is a criminal matter. "Civil" is about damages and preserving or restoring the status quo. "Criminal" is about punishment for a wrongful act. We've created this legal fiction of "civil" punishments that we now literally keep people locked up, indefinately, in "civil" commitments. Similarly, the notion that juvenile justice cases, where kids are kept in detention and come to court in handcuffs, are somehow "civil" cases is nauseating.

Posted by: bruce | Apr 30, 2008 11:02:57 AM

Are punitive damages not a form of penalty? What about late fees?

Posted by: S.cotus | Apr 30, 2008 2:29:15 PM

I've always had a problem with punitive damages. Either an action is a civil wrong or a criminal wrong - it's a matter of unreasonableness. There is usually something called "criminal negligence" in most jurisdictions and that's where punitive damages (i.e. a fine) should be handed out - in the course of a criminal proceeding. If someone was so grossly negligent that they deserve to pay a fine, it should be dealt with in a criminal court with criminal procedures and protections.

Late fees. Of course, between private individuals per contract not a problem (i.e. late fee for video rental). Between you and the government, however, I'd say it's a form of plea bargain. You failed to, say, file your taxes. Crime. You file them late and the government waives a "failure to file" prosecution againstyou in exchange for your payment of a "late fee"... at least that's how I'd categorize it consistent with my previous post. It's a predetermined plea bargain. Ultimately not doing what you did late would be punishable by prison time. So, a late fee is no different than a "speeding fee" or a "securities fraud fee" except, most likely, in amount.

Posted by: bruce | Apr 30, 2008 5:41:36 PM

It sounds like Bruce would prefer admiralty rules when it comes to damages. I think that Bruce's plan to get rid of punitive damages in favor of criminal prosecution for criminal negligence would greatly backfire - first, tort law was designed to be a substitute for the criminal justice system. Second, once the criminal justice system gets involved in the U.S., it seems that prison terms follow. Third is once the criminal justice system gets involved it seems inevitable that state and local governments start seeing it as a potential revenue stream. Hardly seems beneficial to society to sent people to jail or prison based on negligent acts (of course, one could argue we already do that for DUI or reckless driving).

For better or worse, punitive damages are necessary for a couple of reasons - one is to provide damages for people who may suffer an injury that is non-economic (such as the death of a child) and to provide a substitute for putting people in jail for mere negligent actions.

Posted by: Zack | May 1, 2008 11:53:46 AM

Zack, while capped in many jurisdictions (blame right-wing legislatures) noneconomic damages are still recoverable by plaintiffs. I disagree with your other points. How can a fine-only offense end up with a jail/prison term? There might be less cases brought if punative damages were not permitted. Less cases is a good thing.

Or, allow punative damages, just require proof beyond a reasonable doubt, and other criminal procedural protections. The trial could be bifurcated if necessary.

Posted by: bruce | May 1, 2008 4:48:20 PM

Well, it has always seemed weird to me that those on the political right and who claim to support less government regulations are the ones who want to cap punitive and non-economic damages in civil lawsuits since tort law is the small government alternative. For someone who constantly rails against big government it seems rather odd to wish to expand the government's reach through the criminal justice system. Instead, it seems more like a finacial grab by the government. Putting negligence actions in the hands of the government will mean that rather than going to the victims of negligence the government will get that money. It is also clear that in the case of individuals (obviously corporations cannot be imprisoned) once the idea that something is a crime deserving punishment that people will soon be calling for imprisonment.

It also seems likely that if there is a weakened tort system, there will be expanded government in the form of more criminal, in your proposed system, regulations. Also showing that your proposal would result in much larger government interference. There is just too much danger there - especially given the experience of the regulatory state shows that governments will often accept a fine which has no relation to the actual financial damages that the act caused. What you are proposing would put way more hands in unelected government bureaucrats enforcing an expanded level of regulations.

Besides, the Supreme Court has already (unconstitutionally, I might add) capped punitive damages.

Posted by: Zack | May 1, 2008 5:40:49 PM

All I'm saying is that punishments handed out should be done with the protections afforded criminal defendants under the constitution. I'm not proposing any expansion of government, only an expansion of the rights of people subjected to punitive monetary sanctions.

Posted by: bruce | May 2, 2008 5:28:04 AM

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