“There’s a tension between what the bare record of a case would show and what the police or prosecutors believed could have been proven,” said Sam Kamin, a professor of criminal law and procedure at the University of Denver.
September 21, 2015
"Oregon is one of the first states to really grapple with the issue of what do you do with a record of something that used to be a crime and no longer is."
"Clearing a record of past convictions, even in states where recreational marijuana has been legalized, remains controversial."
Subscribe to:
Post Comments (Atom)
Posts
35 comments:
And to really confound the situation, it's STILL a felony under federal law to possess, use, sell, or convey it. So I don't know where they get off thinking they're not scofflaws.
"One of the first" is better than "one of the only," but it is still annoying.
Why would you need to do anything with such a record. It is still useful information to know who broke the law. How is that information any less useful just because the act would now be legal?
Revising history.
It is not "legal." The laws is just no longer being enforced.
What did they do with convictions related to Prohibition?
I'm torn. Strictly speaking, I agree with Ignorance--asking what to do with past convictions for crimes that are no longer crimes is no different than asking what to do with past actions for things that were legal at the time but illegal now. The state's concern is not the act, but the act of lawbreaking.
However, in my opinion, the state lacks the authority to criminalize drugs. All past drug use, possession, and sales (to adults) convictions are simply human rights violations. The records should be wiped clean not because they are now (for the purposes of this question) legal, but because they were never legitimately illegal.
However, in my opinion, the state lacks the authority to criminalize drugs. All past drug use, possession, and sales (to adults) convictions are simply human rights violations.
As the church lady used to say "How conveeeenient!"
Wow. I suppose it is a human rights violation of one human to have 15 cents more wealth than another too! There is no end of things we can declare a "human rights violation" if we want. Free speech, democratic elections, what have you. All can be framed as "human rights violations" with the proper language.
These people were lawbreakers. End of story.
I agree with Ignorance; those convicted of marijuana crimes were still breaking the law. Just as we can't convict someone of breaking ex post facto laws, why pretend they weren't breaking the law as it was written at the time?
And what if the state legislatures in WA and CO subsequently change their minds and re-criminalize marijuana possession? This isn't a constitutional right we're discussing, i.e., an activity that was in theory legal all along, but an activity that's subject to regulation and considered criminal by the federal government and most states.
And to really confound the situation, it's STILL a felony under federal law to possess, use, sell, or convey it. So I don't know where they get off thinking they're not scofflaws.
What other federal laws should we decide to ignore because the majority of citizens think they are immoral or goofy? Maybe so-called supreme court sex-equal-marriage decisions?
tim in Vermont, your post is nonsense. I know you're not that stupid, did ARM break into your blogspot account?
BIDNYC: Yes, use of intoxicants is indeed a constitutional right, in that the citizenry enjoys rights not specifically enumerated in the constitution, and use of intoxicants has a history likely as long as the existence of humanity.
Emanations of penumbras and finding our places in the universe aside, the federal government specifically forbidding use of intoxicants is an over-reaching use of the commerce clause, which only a century ago required a constitutional amendment to be seen as properly allowed in the case of alcohol prohibition.
"which only a century ago required a constitutional amendment to be seen as properly allowed"
What a quaint era, when rights had to be allowed by adding amendments.
Amendments are so 20th century.
They threw open the prison doors and you could snap up an interior decorator for next to nothing after Lawrence v. Texas.
mikee said...
...Yes, use of intoxicants is indeed a constitutional right, in that the citizenry enjoys rights not specifically enumerated in the constitution...
If it's not enumerated in the constitution it is not a constitutional right. It may still be a God-given right. It may be a natural right, or a statutory right. But if it ain't in the constitution then it ain't a constitutional right.
tim maguire said...
However, in my opinion, the state lacks the authority to criminalize drugs. All past drug use, possession, and sales (to adults) convictions are simply human rights violations. The records should be wiped clean not because they are now (for the purposes of this question) legal, but because they were never legitimately illegal.
By "the state" do you mean "the government" or a state (Oregon) of the US?
Federal drug laws are obviously unconstitutional, but US states have the legal right to pass drug or other laws that are, or cause, human rights violations - which the W.O.D. certainly is and does.
To clear up some confusion here, my opinion is based on the logical conclusion that laws regulating what we may possess in our homes and ingest into our bodies can only have as their source of legitimacy the status of the person as the property of the state. I am not the property of the state; therefore, the state cannot control what I own (although, for different reasons, they can control how I acquire it) or what I ingest.
I'm still shaking my head at tim in vermont equating this basic libertarian principal with enforced wage equality.
Whatever they do it is a legal transaction that should employ thousands of novice attorneys thus lowering welfare costs for all. A win-win.
Only legalists will see a downside.
tim maguire,
laws regulating what we may possess in our homes and ingest into our bodies
I suppose that includes (say) arsenic and strychnine and cyanide? Or is it just heroin and crack and meth? (A genuine question.)
Ann, I'm with those who say that, if it was a crime when you did it, it remains a crime even after the law has changed. The central point is the criminality of the action when undertaken. And also, of course, recreational and medical MJ use remain Federal crimes. That will likely change in a few years, but it hasn't yet, so every purported OR "innocent" who's smoked pot, before or after the new law, is still a Federal criminal.
My point is that anybody can climb on their personal hobby horse and claim that it is a "universal human right" and their claim would be equally logical.
Yours happens to be libertarianism. I am not a libertarian. I believe that the state has some role in regulating human behavior on account of the fact that we are not all fictional Vulcans, plus what does a libertarian say when somebody uses drugs, loses the ambition to feed himself, let alone any family he might have? "Too bad, you go die in the gutter" but in the real world where most of us live, that man or woman becomes a burden of some kind, a criminal, an inmate, or a ward of the state, whatever. To suggest that the nation as a whole has no right to regulate affairs that affect it is fantasy.
What about the folks who sold it? While it may be a "basic human right" to smoke pot or shoot heroin (I find this questionable), the distribution of said substances was still a crime at the state level when these people were arrested, and remains a crime at the federal level. Personally, I think these convictions should remain on the books. And I'm speaking as someone who was arrested and charged with a "violation" (parking ticket level offense) for possession of marijuana back when I was a teenager. I knew it was illegal to buy or own, and I did it anyway.
Take it off their record but don't give 'em back the time they served. Win win!
I think every state has process to purge criminal records to some degree. So creating special dispensation just because the laws have changed (in some respects) evades the central fact that an individual chose to violate existing statute at the time of arrest and conviction, and has to accept responsibility for that choice. There is no need to make the process to expunge records any easier or any harder than it is now.
Asserting that possessing chemical substances are a human right outside of legitimate government interests, when referring to hallucinogens, nervous system suppressants or stimulants, etc, is beyond stupid and unworthy of further comment. This is not to say that the WOD is working or even worthwhile. Prohibition regimes for substances desired or used by a large minority of the population are probably doomed to failure. We should have learned the lesson of the 18A.
I'm not eager to get into "human rights" bit I don't see why quiet enjoyment of heroin or arsenic is anyone's affair but the victim's. No victim, no problem. (Victim, problem, of course.)
And nobody has an interest but the gummint? Mmm, sticks in my craw, that does.
How about enjoyment of, say, meth, which can and often does cause serious uncontrolled anti-social behavior with implications for other, innocent people?
Let's say for the sake of argument that the behavior in question becomes unlawful again at some point in the future. Should not the record of past behavior be available st a sentencing?
I'm not eager to get into "human rights" bit I don't see why quiet enjoyment of heroin or arsenic is anyone's affair but the victim's. No victim, no problem. (Victim, problem, of course.)
And nobody has an interest but the gummint? Mmm, sticks in my craw, that does.
Who pays the hospital bills?
What is the libertarian doctrine on the man who incapacitates himself using some drug or other. Shoot him in the gutter? What?
I know that, to paraphrase a quote attributed to Mark Twain, outlawing drug use is like "outlawing steak because a baby can't chew it." But the "babies" don't disappear.
Drugs kill the weak. So, there's that. Social hygiene is served.
If you can handle your shizznit you can have it. If not, not.
Who would smoke even Heisenberg Black Label meth if they could get pharma grade amphetamines at a reasonable price? Think of all the tweaking and optimization Upjohn could do to make it more consumer friendly. Flavors. Dispensers. Blends.
I happen to be (somewhat) OK with shooting (some) people, so, yeah, that would seem best. I think the social emphasis on everybody living forever is misguided. Yes, yes, me first to be sure, zzz.
But I do think optimax harm reduction, and cost allocation, is probably served by legalizing it.
But also you said the government. Explain please a scenario, 24-episode-level plausibility or not, where the government makes it okay for you to, say, snort cocaine, but you can't decide for yourself.
@ Nothing -
Without giving it much thought, how about government owned drug stores, where you get your drugs at cost - minimal fee at best - so there is no need to resort to criminality to find funds to buy. However, you have to, for instance, consume the drugs on site, surrender your driving license when you buy, and only get it back only when you can pass a sobriety test. Get caught driving with your license still at the drug store? Whatever car you're driving is immediately taken to a demo yard and crushed into a coffee table, and you get 90 days in jail. No probation, no suspended sentence.
No private possession of drugs away from government owned facilities, but while you're there, take as much as you want of whatever you want. Feel free to kill your self quickly or slowly. Leave whenever you want. On foot. Drug related medical emergencies go to clinics staffed by medical practitioners licensed to the same standards as current medical marijuana sellers in California.
Anyone caught giving drugs to minors receives a 5 year minimum mandatory sentence, no probation, no suspended sentence. Anyone caught in private possession of drugs away from the official drug store gets the same 90 day min man sentence. repeat offenders get their official drug store privileges suspended for a time. Those arrested for creating disturbances, etc while under the influence, same 90 days, etc.
So, take the profit motive out, make the drugs essentially free, penalize driving under the influence and criminal acts deriving from being the influence. Remove drug possession from the private sector, so access by juveniles is controlled, and crush any adult who supplies juveniles. Maybe remove all control completely from grass. I don't know, this is rushed.
It has to work better than the WOD. It's a start. The biggst thing is to remove the profit from drug sales. Only way I see to do that is to make then free, or nearly so.
Drugs are cheap. The stuff that everybody takes has been around for a hundred years, or ten thousand years. I don't see any reason why a pound of marijuana, cultivated with modern agricultural methods, should cost very much more than a pound of tobacco. Amphetamines are cheap as dirt. Opioids are cheap as dirt. Coca, cheap as dirt.
The attraction for the business is the colossal markups and the colossal markups are because people get shot doing this, or their families are torn apart, or they go to jail for years to be raped in the ass every night until they swallow drain cleaner. Because you moved a pound of something your boyfriend said was 'no problem, trust him'.
You could rack up a 10x profit on Bayer Heroin or Pall Mall Greens and still make everybody happy because they're not paying for a thousand x profit to go to Colombian macheteros and Afghan boy rapists.
Without meaning to be offensive, I think your solutions are a little contrived and frankly too much work. For the benefit, that is. I'm not seeing an enormous problem with people driving under the influence of narcotics opposed to that of driving drunk. I'd be much more inclined to ban alcohol than at least some of the friendlier recreational pharmaceuticals. And I wouldn't really be inclined to ban alcohol at all, whether I like it or not.
I also wouldn't enjoy taking drugs in a government cage, I would want to do it in the comfort of my own home or other congenial environments. You seem wrapped around the idea that every drug user is some born to lose underclass denizen, hooked through the bag, who you're only not shooting because you can't think of a sufficiently good excuse or you lack the guts.
Half of, say, Hollywood is probably doing drugs and while for their politics they might deserve it, most of them probably don't need to be locked up to protect granny from a mugging. Would you be surprised if I told you that Steve Jobs was on drug X, Y, or Z? (I know no such thing.) Does a Steve Jobs need to be locked in a hard plastic room until he isn't high anymore? Maybe the fat cigar thieving idiot who died in Missouri of suicide by cop, what's his name, maybe that guy does, but not some other guy.
...
Professor Althouse, I have a very serious question for you, which I hope that you will answer. Do you see a problem with a foolish consistency in law? I guess that everybody holds as a high ideal the notion that all laws should apply to all people equally. Maybe that isn't such a good idea. Some people need to be restrained, and some people don't. But I suppose it would boil down to fairness and what people would stand for. "All men are created equal" and all that rot, which in all honesty, it is.
Ultimately, then, it seems to me there should be as few laws as possible.
Of those killed in traffic accidents and subject to post mortem examinations, which is not to say all of the many killed in accidents, about 50% have marijuana in their blood. And yes, alcohol is implicated in fatal accidents too. But that's just one example of drugs and their social cost to everyone, not just limited to the end user. Another: meth and other stimulants can cause - in effect - overheating of the CNS and consequent violent behavior. And it doesn't matter if those inflicting their drug use on the rest of us are a minority, and Steve Jobs or Hollywood never caused me any pain. The DUI's crowding the road are enough.
The illegality of drugs and the effectiveness of the controls give rise to the criminals who import and sell the same, and also lead to corruption within and without the government. But we all know this. So, some form of legalization is the first step. But after that, how will you prevent those under the influence from affecting the rest of us? I don't claim to have an answer.
But just saying "What the hell? Do what you will." That's no plan. What's your idea?
I thought you said the same thing. Punish misbehavior. Drunk/stoned in public. Drunk/stoned driving. If they're NOT doing you harm, why go after them? If they OD, problem solved.
Post a Comment