medical marijuana

[Cindy]

My comment on question #69532 has been pending for a while, so I'll just explain myself here.

A lot of people don't get the fact that, in our federalist system of government, the federal government and the states are separate sovereigns who can each define and punish criminal behavior. There are lots of things, like burglary, that are just state crimes. There are other things, like immigration offenses, that are just federal crimes. And there are other offenses, like many drug and gun offenses, that are crimes under both sets of laws. If you do something that violates both federal and state law, you can be prosecuted under both. See Abbate v. United States, 359 U.S. 187 (1959) (holding that successive state and federal prosecutions for the same act do not violate the Double Jeopardy Clause).

Often, if states know the feds are going to prosecute someone for an act like drug possession, they won't bother with their own prosecution. I think a big reason for this is that states are more concerned about the costs of incarcerating someone than the federal government is, so they won't bother using their own funds for prosecution and imprisonment when the federal government is already doing something. (This is also, in my opinion, a big part of the reason why federal sentences are often much longer than state sentences for the same conduct.)

Under federal law, marijuana is defined as a Schedule I controlled substance, meaning that the federal government recognizes no accepted medical uses, and thus any manufacture, distribution, or possession of marijuana is a violation of federal law, "with the sole exception being use of the drug as part of a food and Drug Administration pre-approved research study." Gonzales v. Raich, 541 U.S. 1, 14 (2005).

This federal law is not affected by what states choose to do with their own criminal codes. When Colorado "legalized" medical marijuana, it simply made the use of medical marijuana legal under state law, but it did not affect the illegality of all marijuana possession under federal law. In fact, this was mentioned in the 60 Minutes report referred to in the board question, although the asker didn't seem to understand it.

As was also mentioned in the 60 Minutes report, the federal government isn't currently going after medical marijuana users or prescribers, partly because juries in places like Denver often refuse to find anyone guilty in marijuana offenses. However, the federal government's current policy of not prosecuting these crimes does not make them any less criminal. So, the question is premised on the false notion that medical marijuana usage is now legal, but this is incorrect as a matter of federal law. Of course, the writers' answers may be applicable to the hypothetical question of what would happen if the federal government legalized marijuana use as well, but I thought it might be good to clarify that this isn't currently the case.

Disclaimer: Nothing in this comment is to be taken as legal advice.

[Digit]

Not related to drugs and TRs, but I knew one illegal alien missionary who of course was in possession of a current temple recommend despite being in violation of federal immigration laws by being in the US. I assume their situation was fully known as they told me they were sure this is why they stayed state-side. This was about 12 years ago, so I'm not sure if getting on an airplane was easier for illegal aliens then. But they told me themselves in confidence that they were an illegal alien. As it happens, I never had a mind to snitch on them. But I just mention it as a definite case of breaking federal law (not drugs, but federal law nonetheless) not preventing issuance of a TR.

[Cindy]

True, and basically everyone who drives a vehicle in Utah would lose their temple recommends if all kinds of illegal behavior prevented you from having a recommend.

In the old common law, the law distinguished between offenses that were malum in se (bad in themselves) and those that were malum prohibitum (bad only because they were prohibited). Something like burglary or murder is malum in se; things like speeding or illegal immigration are generally considered to be malum prohibitum. In general, I think most people would probably think that violations of malum in se offenses would affect your temple worthiness, while many malum prohibitum offenses would not. Where you come out on the medical marijuana issue probably depends on which kind of offense you think it is.

[Portia]

True, and basically everyone who drives a vehicle in Utah would lose their temple recommends if all kinds of illegal behavior prevented you from having a recommend.

In the old common law, the law distinguished between offenses that were malum in se (bad in themselves) and those that were malum prohibitum (bad only because they were prohibited). Something like burglary or murder is malum in se; things like speeding or illegal immigration are generally considered to be malum prohibitum. In general, I think most people would probably think that violations of malum in se offenses would affect your temple worthiness, while many malum prohibitum offenses would not. Where you come out on the medical marijuana issue probably depends on which kind of offense you think it is.

Driving offenses aren't breaking federal law, and sometimes aren't even a criminal (rather than a civil) offense.

[Marduk]

Because apparently only federal law (or criminal law) are considered "the law of the land."

[Digit]

If it ain't malum in se, then just call it OK