Tuesday, May 31, 2005

Safe Access to Drug Treatment and Child Protection Act

That's H.R. 1528 over at http://thomas.loc.gov/. Big Brass Blog has a discussion of it.

`SEC. 425. (a) It shall be unlawful for any person who witnesses or learns of a violation of sections 416(b)(2), 417, 418, 419, 420, 424, or 426 to fail to report the offense to law enforcement officials within 24 hours of witnessing or learning of the violation and thereafter provide full assistance in the investigation, apprehension, and prosecution of the person violating paragraph (a).

(These offenses all seem to be about dealing/manufacturing drugs in the presence of children.)

Um. I'm not sure this is constitutional. I mean, really. First, making a crime of failing to report certain types of drug offenses overrides a state's right to define crimes in their community, which is generally violative of that state's sovereignty. Dealing with criminals is state's business, and then, second, there's the mandatory sentencing guidelines.

I. Infringing on the State.

There's a two prong test under the 10th Amendment that applies here:

1. does the federal action (in this case creating the federal crime described above) commandeer state government?;
2. does the federal action shift political accountability between fed and state, so that citizens don't know who to hold responsible for legislation or action of which they disapprove?

Naturally (hey, this is law school), you could argue it both ways.

1. You could argue, no, this does not commandeer state government. It's citizens who are being required to report these drug offenses, and the federal government is in fact allowed to tell citizens what to do, within reason, and use federal resources to enforce federal law. (I know you were all worried.)

But, I think the rebuttal to that is quite a bit stronger. State resources will be used enforcing this law, this behavior, because this law will be all tangled up with state drug statutes and their enforcement. How can you disconnect them? Citizens will ring up state cops if they're following the law (or, more to the point, they'll fail to ring up state cops when they're violating this law). State law enforcement officials will be arresting and booking violators, state courts will be using up their time adjudicating these cases. State resources, in short, will be commandeered to enforce this statute.

2. Anytime you have a federal law possibly infringing on the state's power, you can always argue, "hey, it's a federal law, anyone paying attention in court will know it's a federal statute being enforced, so there's no confusion of accountability between fed and state -- how could there be (and this is where you point) it says 'federal' right there!".

Again, here I think the rebuttal is stronger. It's not about whether a statute has the word "fed" stamped on it in red ink. Who will be seen to enforce it? How do you distinguish the time and money used enforcing this federal directive from other activities of the state? What, do you hire some clerk to manage a spreadsheet listing how much $$ the state courts spend prosecuting this crime? Doing so would just take more time and suck up more resources on the state's part in trying to distinguish between what enforcement of this federal statute costs the state -- for which the ire of citizens should be rightly directed at the federal government, and what was actually the state's own missteps, whatever they may be, for which it should be held responsible by those same citizens. That's what accountability is all about. What wankers do we citizens vote out of office today? State? Or federal? Who do we complain to, the governor, or our U.S. Senator? If we don't know who to go after, political accountability has been destroyed.

II. Mandatory sentencing guidelines.

I'm not going to focus on the impact such guidelines may have on incarceration in state prison for federal crimes, because I don't actually know how that works yet.

But. You could argue that mandatory sentencing guidelines remove decision-making from the jury and the judge and put them in the hands of the legislature that passed the statute in question, thus denying a defendant's due process. Essentially, the decision of their punishment was made before they even showed up, or contemplated a crime. If the jury doesn't make this decision, has a defendant really gotten their jury trial? Or were they tried by the legislature on the day the statute was passed?

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