Marijuana Law in a Nutshell by Mark Osbeck & Howard Bromberg

Author:Mark Osbeck & Howard Bromberg
Language: eng
Format: epub
ISBN: 9781634599351
Publisher: West Academic
Published: 2017-04-08T04:00:00+00:00

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CHAPTER 14

SPECIAL CRIMINAL ISSUES

§ 14–1INTRODUCTION

Despite the trend towards legalization by American states, marijuana in the United States remains largely forbidden. Certainly marijuana activity is a crime under federal law. Likewise, in all 50 states, marijuana cultivation, possession, consumption, and sale remain offences, subject to limited exceptions in states that have set up legalization schemes. And while a majority of states have carved out exceptions for medical use of marijuana, there are precise restrictions for licit medical use, and marijuana activity outside of these limits constitutes a criminal offense. Similarly, criminal penalties remain for such offences as driving while marijuana impaired, possessing marijuana in public view, and possessing a quantity of marijuana beyond authorized amounts, even in jurisdictions that have legalized medical and recreational marijuana.

Marijuana activity is not technically criminalized in its own right, but is rather an illicit use of a controlled substance outside of restricted channels. Because according to the Controlled Substances Act (CSA), marijuana is controlled under Schedule I, for which no use is permitted (except for narrowly granted DEA registration), marijuana activity is by definition an offense against the Act.

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Marijuana crimes fall under the general category of crimes of misuse of controlled substances, that is, drug crimes. Nevertheless, marijuana raises unique evidentiary issues, relating to the law of possession, search and seizure, sentencing, and asset forfeiture, and these have played a significant role in the jurisprudence of criminal law.

Section 14–2 of this chapter situates marijuana within criminal jurisprudence. Section 14–3 addresses issues of search and seizure, especially as to canine forensics and surveillance technology. Section 14–4 addresses constructive possession of marijuana. Section 14–5 addresses punishment for marijuana crimes, specifically as to sentencing and asset seizures. And § 14–6 introduces questions arising from marijuana’s unique status as a substance that is controlled under Schedule I of the CSA and yet may be legal, depending on purpose and jurisdiction.

§ 14–2MARIJUANA CRIMINAL JURISPRUDENCE

Marijuana offenses arise in three ways: 1) marijuana activity violates the federal CSA; 2) marijuana activity violates state and/or local prohibitions against marijuana use; and 3) in states where marijuana prohibitions have been repealed or overridden by legislation or constitutional amendment so as to permit medicinal and/or recreational use, marijuana activity goes beyond permitted limits.

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The “War on Drugs” involves an expansion of federal powers, issues of racial and class discrimination, drug courts, prosecutorial discretion, and exponential increases in incarceration. The strategy to treat drug offenses as serious crimes rather than public health issues is controversial and widely debated. With application of the Bill of Rights to states under the Fourteenth Amendment, most drug prosecutions raise constitutional questions of criminal procedure. While the War on Drugs has implicated the criminal clauses of the Fifth, Sixth, and Eighth Amendments, it has perhaps its most significant impact on questions of probable cause for search and seizure under the Fourth Amendment. These issues include racial profiling, informants, no-knock drug raids, drug testing, plain view rules, exigent circumstances, and warrantless and consensual searches.

As with all crimes, marijuana offenses consist of violating the elements listed in the statute.

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