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The Urge to Criminalize Enters the Twilight Zone

| 10 Comments
The movement against "overcriminalization" covers too much territory to allow me to take a position on it.  To the extent it condemns non-mens rea offenses, or seeks to scale back using criminal law as the cudgel of the nanny state, I'm for it.  To the extent it's just cover for the movement to legalize heroin and other drugs, I'm against.

The following example, however, shows why the campaign against overcriminalization has merit, now more than ever.  When we threaten our fellow citizens with a year in the slammer simply for being boorish, things are out of hand.  

Here's the story:

California can now start jailing people that refuse to use the preferred gender pronouns of nursing home residents after Democratic Gov. Jerry Brown signed the bill Thursday.

The law's effect is limited to nursing homes and other long-term care facilities, but mandates that those who "willfully and repeatedly" refuse "to use a transgender resident's preferred name or pronouns" can be slapped with a $1,000 fine and up to one year in prison, according to the California Health and Safety Code.

Sgt. Manning, freshly living free courtesy of a gigantic commutation for treasonous behavior, must be wearing a big smile just now.

CORRECTION:  It was Pvt. Manning, not Sgt. Manning, at the time of discharge.

10 Comments

I would expect a First Amendment challenge to the government telling people what to do in this regard.

The employer, of course, can tell employees how to address its customers.

"I would expect a First Amendment challenge to the government telling people what to do in this regard."

Yes, but does anyone think a random panel of the Ninth Circuit would protect those First Amendment rights? And that would be cold comfort to someone sitting in a jail cell because the government decided to criminalize normal English language usage.

Isn't criminal law serving as the cudgel of the nanny state when threatening time in federal prison for growing a plant in one's own yard for one's own medical use consistent with state law? See Gonzales v. Raich. Notably, a random panel of the Ninth Circuit did try to protect this freedom, but SCOTUS decided federal power know few limits. And so it goes (and government grows).

Doug,

As you have often pointed out, I live inside the Beltway and thus am prone to deal-making. (When wants to be positive rather than negative about deal-making, it gets called "compromise.").

So I propose this deal: I will support non-prosecution of the use "medical" pot, when such use is prescribed by a legitimate, certified physician (i.e., not an advocate or some undefined "medical professional") for a legitimate and serious medical disorder (not, "Hey doc, like, man, you know I need to feel, like, more groooovy"), if you will support preserving federal prosecutions and existing mandatory minimum sentences for trafficking in the rest of the deadly lot, e.g., smack, fentanyl, Ecstasy, etc.

P.S. Do you support the new California law? Are you planning to join an amicus brief to enjoin its enforcement? That would be a suit where, unlike Raich, you'd have a substantial chance of winning.

Doug in thread 1: " But ignoring judicial decisions that one dislikes often in history is a path toward anarchy. But perhaps that is what you'd prefer to the current rule of law."

Doug in thread 2: "Isn't criminal law serving as the cudgel of the nanny state when threatening time in federal prison for growing a plant in one's own yard for one's own medical use consistent with state law?"

I guess respecting the law is only relevant if you like it?

From what I have found, Manning was a Specialist, not a Sergeant, before being busted back to PFC. The Army's enlisted ranks are explained here.

Tarls: while federalist is calling for state officials to ignore/violate federal court rulings, my comment about Raich advocates no such thing. Indeed, because of my respect for the rule of law, I would be aghast if Gov Jerry Brown threatened to arrest federal officials for trying to enforce federal marijuana law, and I am troubled that federalist has suggested state officials should actively defy federal court rulings. Because I know you are smart enough to see the distinction, I am genuinely puzzled by what you mean by your comment. Do you support federalist's defiance actions by state officials? Do you think respect for the law means you cannot criticize it?

Bill: What do you mean by "support[ing] non-prosecution"? Do you support an actual change in the CSA or do you just support the existing limit on federal funding and the DOJ memos? I appreciate your interest in deal-making, but you are not offering much (and, as you know, I dislike MMs on separation of powers principles).

As for the new Cal law, it seems very silly. But so too does a federal law that threatens time in federal prison for growing a plant in one's own yard for one's own medical use. How about we work together to get both laws repealed?

Let me clarify.

Are you for or against states ignoring "the rule of [Federal] law" when it comes to pot prosecutions?

Pot usage, possession, and cultivation, for whatever purpose and in all 50 states, is still illegal. Of course, there are a million arguments on each side for or against the statute, but that is my point. From my perch, you appear to more than criticize its illegality, you condone the intentional violation of the statute.

Could you direct me to a post on your blog where you were critical of Colorado and other states ignoring/violating federal law? Why is a state official ignoring a federal court decision worse than a state official ignoring a federal statute?

As to your last two questions: 1) No, in almost every circumstance, and 2) No.

"As for the new Cal law, it seems very silly. But so too does a federal law that threatens time in federal prison for growing a plant in one's own yard for one's own medical use. How about we work together to get both laws repealed?"

Contraband can be banned, silly or not, it's allowable---criminalizing speech isn't just silly, it's illegal.

Thanks for your clarification, Tarls, which allows me to better see how you see possible parallels between federalist calling for state official to defy federal court orders and my disaffinity for criticizing state officials when they enact state laws that are in tension with the federal Controlled Substances Act.

The big difference I see hinges largely on the fact that the CSA expressly does not preempt state laws and the critical constitutional anti-commandeering principle (combined as well with recent decisions by DOJ and Congress to show a measure of respect for state legalization of some marijuana-related activity). Because the CSA does not purport to preempt state laws, state officials setting up state marijuana regimes are not quite ignoring a federal statute as much as creating their own sovereign rules for their own jurisdiction. That said, I can now see how you and other might view this as a kind of defiance, and the NJ sports betting case before SCOTUS gets to these issues. Are you rooting for the feds or for the states in that battle and do you see it as raising the same issues that federalist is proposing?

Critically, in the marijuana context, direct parallels to what federalist is talking about requires adding some facts creating a more direct fed/state conflict. So, we might imaging DOJ decided to start raiding marijuana facilities or securing a federal court order that a particular facility must be closed. If/when that happens, I would be very critical of any state actors taking any steps to defy federal officials seeking to directly apply/enforce federal law or a federal court order. But it seems federalist would perhaps be okay with state officials defying/resisting a lawful federal order.

For this reason, federalist, I am still looking to understand the principles and limits of your call for defiance of federal court orders by state officials. If (when?) a federal court were to find unconstitutional this California law, how would you criticize a state official still eager to apply it and inclined to call the ruling just another example of federal judicial arrogance?

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