Criminal Law & Process – Page 56 – Marquette University Law School Faculty Blog

Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

Post author:Scott C. Idleman
Post published:April 9, 2013
Post category:Congress & Congressional Power Constitutional Law Criminal Law & Process Federalism Public Speakers at Marquette

The Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however.

Tale of Three States: Minnesota’s Surprisingly Large Supervised Population

Post author:Michael M. O'Hear
Post published:April 8, 2013
Post category:Criminal Law & Process Public

As noted here a few weeks ago, my forthcoming article comparing imprisonment trends in Indiana, Minnesota, and Wisconsin in now available on-line. Due to space constraints, I was unable to include in the article all of the interesting data I have collected on the three states. I’ll present some of that additional material in an occasional series of posts here.

Today, let’s take a look at the supervised populations of the three states. The supervised population is comprised of four subgroups: those in prisons, those in jails, those on probation, and those out on post-imprisonment supervised release (a status that goes by different names in different jurisdictions, but which I will call parole). As is well known, Minnesota has a remarkably low imprisonment rate (at least by U.S. standards), although all three states have experienced an imprisonment boom since the 1970s. Here are the imprisonment numbers, reflecting the number of prisoners per 100,000 state residents:

As the graph indicates, Minnesota has maintained a consistently lower imprisonment rate than the other two states since the mid-1960s. Indeed, the Minnesota advantage has tended to widen over time. By contrast, Indiana has generally had the highest imprisonment rate, although Wisconsin has been close at times, and even took the lead for a few years.

The story is quite different, however, if you consider the supervision numbers more broadly.

Treatment, Education Programs Needed in National Drug Fight, Drug Czar Says

Post author:Alan J. Borsuk
Post published:March 6, 2013
Post category:Criminal Law & Process Public Speakers at Marquette

“Bumper sticker” approaches are politically appealing and popular, but they aren’t the right ways to deal with complex major issues connected to drugs and the toll they take, the nation’s drug czar said Wednesday during an appearance in Eckstein Hall.

Neither calling for a war on drugs nor calling for legalization of drugs are effective paths, said, Gil Kerlikowske, whose actual title is director of the White House Office of National Drug Control Policy. Smart, well-structured approaches that combine law enforcement, treatment options, and prevention efforts create a third path that can yield good results, Kerlikowske said.

The “drug war” of the 1980s and ‘90s was “a totally inadequate answer to what is really a very complex problem,” he said. Using law enforcement alone, “we’re not capable of solving drug problems.” But using multiple approaches can show genuine and positive results.

Kerlikowske cited a nationwide decline in cocaine use – he estimated the decline at 40% — as an example of multiple factors coming together to help reduce a problem. He said the factors include reduced cocaine production in Columbia, better interdiction of drug shipments by law enforcement, and widespread recognition among potential users in the US of the dangers and risks of the drug.