On Jan 4, 2018, Attorney General Jeff Sessions issued a memorandum rescinding the prior policy of the Department of Justice (DOJ). This prior policy, spelled out inward the so-called Cole memo, instructed “federal prosecutors to de-prioritize marijuana-related prosecutions inward those states — except inward for certain cases, such every bit when at that spot were sales to children, gang-related activity, or diversions of the production to states where it remained exclusively illegal?” (NY Times article) The novel policy emphasizes that DOJ prosecutors should pursue marijuana prosecutions exactly every bit it pursues every other criminal activity.
The implication of the novel policy is that activeness involving the cultivation, distribution in addition to fifty-fifty possession of pot—activity that was legal nether nation law, in addition to that people thought, relying on the Cole memo, was non going to the footing of a prosecution nether federal law—can forthwith shape the footing of a federal prosecution. The enquiry I desire to enhance is: would such prosecutions hold upward constitutional?
In favor of prosecution, i tin tell that it’s ever been obvious that the federal constabulary was out at that spot in addition to that it is non negated yesteryear whatsoever nation constabulary to the contrary.
On the other hand, the Cole memo gave people ground to rely on the idea that the federal constabulary was effectively nullified every bit long every bit they operated inside for certain limits. To prosecute them forthwith is to “spring a trap” on them. (quoting Posner, dissenting inward United States of America v. Wilson, 159 F.3d 280,289 (7th Cir. 1998)).
The constitutional claw for the defense forcefulness is the due procedure clause. It is good known that the due procedure correct non to hold upward prosecuted based on the difficulty of knowing the constabulary is a real express right. Lambert v. CA, 355 United States of America 225 (1957) held that at that spot was a due procedure correct against conviction when the offense was “wholly passive,” the constabulary was but “for the convenience of constabulary enforcement agencies,” in addition to at that spot was naught most the circumstances to “alert the doer to the consequences of his deed.” But every bit Justice Frankfurter foretold inward his dissent, the determination turned out to hold upward “a derelict on the waters of the law.”
On the other side, at that spot are a number of decisions rejecting the defense forcefulness that a accused could non convey predicted that his lead would hold upward against the law. I could get upward many, but I’ll become amongst exactly i gear upward of cases, the Albertini cases in addition to the S.Ct. determination inward United States of America v Rodgers, 466 United States of America 475, 484 (1984). In the former, the 9th circuit held that a accused could non hold upward prosecuted for trespass when he lived inward nation inward the 9th circuit in addition to relied on 9th circuit precedent that held that he had a First Amendment correct to protestation on a military machine installation, fifty-fifty if the Supreme Court afterward overruled the 9th Circuit’s belongings on his correct to protestation on a military machine base. But inward the Rodgers case, the Supreme Court rejected that defense, belongings that “the being of conflicting cases from other Court of Appeals made review of that number yesteryear this Court in addition to against the seat of the respondent reasonably foreseeable.” In other words, nether the Rodgers decision, Albertini would convey had no defense.
One could easily imagine a prosecutor arguing that it was ever reasonably foreseeable that a novel sheriff would come upward to town in addition to determine to enforce the federal marijuana law, in addition to that those who purchase or sell pot had no correct to rely on their nation constabulary permitting it in addition to the federal policy non to enforce the federal law.
The enquiry is: could the defense forcefulness mountain a compelling instance that such a motion would violate due process? It could become inward 2 ways:
- Distinguish Rodgers. Perhaps it should hold upward argued that at that spot was no contemporaneous warning that the federal constabulary mightiness hold upward enforced, in addition to struggle that people should convey a correct to rely on a policy disputation from the United States of America subdivision of jurist most what volition non hold upward prosecuted.
- Revisit Rodgers.
Both strands could hold upward reinforced amongst the idea that primal fairness, the regulation of legality, in addition to the regulation behind the ex post facto law, all quest that a determination to kickoff enforcing federal law, constabulary that the DOJ had publicly stated would non hold upward enforced, tin only outcome inward prosecutions for activeness that violates that constabulary going forward, non retroactively.
If I were to bet on this, I’d bet heavily that the due procedure clause would non hold upward constitute to protect those who relied on nation constabulary in addition to federal policy. But every bit a affair of justice, it is clear to me that this would hold upward a failure of fairness, legality in addition to truthful due procedure norms.
Alec Walen is Professor of Law at Rutgers-Camden School of Law. You tin make him yesteryear electronic mail at at awalen at camden.rutgers.edu.
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