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“But I thought Pot Was Legal Now?”– Marijuana Cases in Federal Court

Kish Law LLC

I have several federal criminal cases in Atlanta and other parts of Georgia involving allegations that my clients dealt in marijuana.  Some folks in other parts of the country also have contacted me recently about federal criminal prosecutions in states where the local laws permit personal use and state-sponsored sale of marijuana.  In virtually all of these cases, someone always asks: “But I thought Pot was legal? How can the federal government prosecute me (or my loved one) if the state where the federal court is in lets people use this drug?”

One of the less well-known parts of our wonderful Constitution is called the “supremacy clause.”  If you are interested, you can find it in Article VI, the second paragraph.  Here is what it says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The supremacy clause makes a lot of sense for many aspects of life in a democracy.  For example, things would be a bit untidy if the law on how to build and maintain a highway changed at the state line separating Alabama from Georgia.  Keeping some level of uniformity means that our people can expect the same basic guidelines and laws as we move from place to place in this enormous and beautiful land.

However, we also need to think about the interplay between the Supremacy Clause and the Tenth Amendment, which says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  The Tenth Amendment partially defines who we sometimes call “federalism”, which is the relationship between Federal and state governments. As the country has grown and activity and regulation by the central government has increased, we keep butting into the problem of reconciling state and national interests applicable to taxes, police power and the like.

So, back to our Pot Problem: what to do when a State (such as Colorado), says it is OK to use it, but the feds say it is illegal to both use, and to sell.  The bottom line is that the Supremacy Clause generally rules this debate, and the feds can prosecute a marijuana case in on one of its courts even if that court sits in a state that otherwise says the drug is legal.  However, the story is not quite so simple.

Another wonderful aspect of the Constitution is the Sixth Amendment right to a jury trial, a place where (supposedly) average men and woman are called on to render verdicts in trials.  I have a federal marijuana case now that, when the Feds announced the raid and prosecution, the responses to the local paper basically all said something to the effect of “why are we wasting money on going after this stuff when there are more important crimes to prosecute?”  Jurors are supposed to only base their verdicts on the facts and the law, but in reality all of us bring some preconceived notions into court.  Some jurors let those notions overcome the law, from time to time (we have a fancy name for this, “jury nullification.”)  So, while the lawyers are all obligated to keep their arguments well inside the confines of the law (such as the federal law outlawing marijuana), nothing can stop a juror who wants to acquit a Defendant charged in a marijuana case if the juror feels the federal law is a waste of time and resources.

I hope to post more about all of this as these cases move through the courts.  Stay tuned!

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