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Old December 15, 2012, 12:30 PM   #1
Don H
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Fifth Amendment Due Process

President Obama has recently stated: "... as it is, the federal government has a lot to do when it comes to criminal prosecutions," Obama said. "It does not make sense, from a prioritization point of view, for us to focus on recreational drug users in a state that has already said that under state law, that's legal."

If the federal government did in fact choose not to prosecute recreational marijuana users in states that have legalized the recreational use of marijuana, would subsequent federal prosecution of recreational users in states which have not legalized it be a violation of Due Process under the Fifth Amendment? Is selective enforcement of a law based on geographic location constitutional; that is, "we're going to enforce this law in this state but not that state"?
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Old December 15, 2012, 01:28 PM   #2
iraiam
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In my view the government in general has been picking and choosing which laws it wants to enforce for decades.

To keep this thread firearm related I'll go back to the 1999 Columbine high school shooting.

There was a young woman who legally purchased two of the long guns used in the crime at a gun show here in Colorado, she then illegally transferred the weapons to the the underage shooter(s).

There was another man who illegally transferred handguns to the under age shooters.

The man who illegally transferred the handguns to the shooters was prosecuted.

The young woman who illegally transferred the long guns to the the shooters was not prosecuted, instead she was paraded in front of the Colorado state legislature during the gun law debates after the massacre, where she spoke on how she was able to do it (even though already illegal). This was specifically done as a tactic to enact laws to close the "gunshow loophole".
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Old December 15, 2012, 02:19 PM   #3
Don H
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There's no need to keep the thread gun-related. Other topics are acceptable in this sub-forum:
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Discussions may range from the Second Amendment to other equally important civil rights and the Laws that affect them. General political issues are off-topic.
As to why Robyn Anderson wasn't prosecuted, that's a thread in and of itself as to whether she committed any illegal acts for which to be prosecuted.
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Old December 15, 2012, 03:03 PM   #4
Frank Ettin
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In any case, it's well established in the law that prosecutors have very broad discretion to decide who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources.
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Old December 15, 2012, 03:30 PM   #5
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It isn't fair or equitable to do this on a state by state level, no good will come from this, it will only build resentment. If this can be done with this issue then this will open the door to other regional issues, whatever they might be.
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Old December 15, 2012, 03:38 PM   #6
Don H
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What about when not even arrests are being made in certain states?

Would a clear pattern over time of never prosecuting for recreational use in certain states and almost always prosecuting in other states provide grounds for an appeal based on uneven application of the law? It seems like that would transcend mere prosecutorial discretion.

I guess what I'm really asking is how unevenly can a federal law be enforced among the citizens of the various states before it becomes a constitutional issue?
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Old December 15, 2012, 04:44 PM   #7
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All I know is that my great-grandfather was a professor of law, and I was brought up to the philosophy that laws which are enforced sporadically or arbitrarily and capriciously are worse than no laws at all, because unequal enforcement generates disrespect and disdain for laws in general.

I have seen nothing in my nearly seven decades on this planet to suggest that my great-grandfather was incorrect in this assessment.
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Old December 15, 2012, 08:45 PM   #8
Frank Ettin
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Quote:
Originally Posted by Aguila Blanca
...I was brought up to the philosophy that laws which are enforced sporadically or arbitrarily and capriciously are worse than no laws at all...
Arbitrary and capricious is one thing, but not every exercise of discretion is arbitrary and capricious.

It might be arbitrary and capricious to pull names out of a hat to decide who to charge and prosecute. It would be an abuse of discretion to systematically prosecute only persons of a certain race or religion. But it is another thing, for example, for federal prosecutorial authority to decide not to use available, limited resources to prosecute relatively benign misconduct that is legal under state law.
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Old December 15, 2012, 09:02 PM   #9
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Its human nature to want to receive equal treatment. I understand the prosecutor has discretion but for whatever reason this somehow seems different. I guess I will have to ponder it some more.

This does seem to set a dangerous precedent. A state can ignore a federal law and the feds publicly accept it... Don't have any idea how it will all work out in the courts.. Popcorn Time!!!

Certainly some lawyer somewhere will eventually leverage this situation to the hilt. It also may give states like Arizona encouragement to do the same with other issues they disagree with the fed on... I may have to leave the tundra for desert...
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Old December 15, 2012, 09:13 PM   #10
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Aguila Blanca,

Your great-grandfather was a very wise man.

And sadly, there does not appear to be many people left these days in power positions with the same thoughts as your great-grandfather.

Some years ago I was standing in the court house in Cols., Ohio with a very prominent Ohio defense attorney and our conversation was about certain past cases in which it was puzzling that either the defendant walked when they were obviously guilty or visa versa, found guilty with very little evidence.

I'll never forget the statement he made nor the, more or less, smirk on his face when he said this:

" Do you know who sits in the top floor of this building?"

My response: "NO"

His answer:

" Monty Hall.... This place is like 'Lets Make a Deal'. If you've got the money, I can get you out of it".

The sad reality is, this has been the general attitude for years. And seeing some of the more 'high rolling' crime figures do business right in front of LE eye's, go to court time after time and walk time after time, there must be something to what my attorney acquaintance said.

Too, I know another fella that has had 5 DUI's, still has drivers license, still drinks/drives and basically laughs about his situation. He'll be the first to tell ya what has gotten him off thus far. Money, and a lot of it.
The last time (about 1 1/2 yrs. ago)he walked into his counselors office facing DUI charges, his attorney wouldn't even take the case for under $20,000. He's used the same attorney over the years and all his DUI's have occurred within the same county.

What's wrong with this picture???

Have the laws been enforced and prosecuted equally for everyone???...IMO, it would take a very,very naive person to think so.
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Old December 16, 2012, 12:56 AM   #11
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Frank, backing up what Shortwave and Aguila said:

I feel like what they are getting at is not necessarily arbitrary enforcement, but more so a lack of objective laws that are very simple to follow and enforce.
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Old December 16, 2012, 01:25 AM   #12
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This is from a brief I wrote in 2005. I don't think the law has changed:
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A claim of selective prosecution is rooted in the Fifth Amendment right of equal protection made applicable to states through the Fourteenth Amendment. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); 21A Am.Jur.2d Criminal Law § 983 (1998). The prosecutor has broad discretion in deciding whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985); United States v. White, 972 F.2d 16, 18 (2nd Cir.1992). This discretion is subject to constitutional restrictions on prosecutions on the basis of race, religion, or some other arbitrary classification such as the exercise of protected rights. Wayte, 470 U.S. at 608, 105 S.Ct. at 1531; Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); see also 21A Am.Jur.2d Criminal Law § 983 (1998).

A person claiming selective prosecution must show both discriminatory effect and discriminatory purpose on behalf of the prosecutor. United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 1487, 134 L.Ed.2d 687 (1996). There is a presumption of regularity given prosecutorial decisions which must be overcome by clear and convincing evidence of both discriminatory effect and discriminatory purpose. Armstrong, 517 U.S. at 465, 116 S.Ct. at 1487.

In order to show discriminatory effect, Appellant must show that similarly situated individuals of a different classification were not prosecuted. Armstrong, 517 U.S. at 465, 116 S.Ct. at 1487; United States v. Jones, 159 F.3d 969, 977 (6th Cir.1998). In proving discriminatory purpose, it is not enough to show a prosecutor was aware of the consequences. One must prove the decision to prosecute was made “because of,” and not just “in spite of,” adverse consequences on an identifiable group. Wayte, 470 U.S. at 610, 105 S.Ct. at 1531-1532.
Summed up, prosecutors have a great deal of discretion as to what to prosecute so long as the decision is not arbitrary (that's what Frank said). I doubt there are that many federal prosecutions of recreational pot smoking outside of national parks.
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Old December 16, 2012, 09:21 AM   #13
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Discretion to prosecute begins with the officer in the field. And that's all I have to say about that.
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Old December 16, 2012, 09:53 AM   #14
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All administrations have to some degree "prioritized" enforcement. This is the first administration which has used "prioritization" for political purposes. A careful review of the Gunrunner thread supports this point.

For those of us who live on the southern border, we see this on a daily basis.

Eric Holder "gave the National Counterterrorism Center sweeping new powers to store dossiers on U.S. citizens, even if they are not suspected of a crime,"

http://www.wired.com/threatlevel/201...n-us-citizens/

Given this administrations anti gun position, it would appear, based on the article, that we as members of this forum can be investigated simply for our association with a subject they oppose.

This would appear to violate our 1st amendment rights. Both speech and association.
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