What feds might do to counter states legalizing pot

We are now in the position where marijuana legalization has been discussed in state legislatures, and California is seriously likely to be voting on legalization this year.

And the federal government, with all it has invested in the drug war, can do little about it. California has the full and absolute right to eliminate any of its criminal laws or penalties that it wishes, as does every other state. Sure, federal law trumps state law, but that only means that the separate federal prohibition against marijuana remains — a prohibition that the state is in no way obligated to enforce.

Sure, the federal government could, in this day of massive federal police power (something anathema to our founders), enforce federal marijuana laws on their own, but such an act would be extraordinarily costly (financially and politically) and quite futile.

So if states start falling to legalization and the feds want to sabotage it, what are they likely to do?

Let’s take a look back in history.

In 1984, the federal government wanted to institute a 21-year-old minimum drinking age, despite the fact that states were all over the place on the minimum age. They couldn’t require the states to do it. So they bribed them.

The National Minimum Drinking Age Act of 1984 used a tricky little device: “a state not enforcing the minimum age would be subjected to a ten percent decrease in its annual federal highway apportionment.”

By the way, the Supreme Court upheld the power of the feds to bribe states this way in South Dakota v. Dole.

And it wasn’t the first time this was done.

10 years earlier, Congress passed the Emergency Highway Energy Conservation Act requiring a national 55 mile per hour speed limit. Again, they didn’t have the power to do it, so the way the pulled it off was to make it a requirement for a state to receive highway funds (that was later repealed).

And in 1998, the exact same technique was used to make .08 blood alcohol a national standard for determining drunk driving.

So what might we see in the future? My guess is an attempt to pass a national Per Se Drugged Driving Standard and enforce it through (you guessed it), withholding highway funds to states who don’t play along.

What is a “Per Se” drugged driving standard?

“Per se” is a latin phrase meaning “by itself” or “inherently.” In drugged driving law, it means that any detectable amount of a controlled substance is automatically evidence of “drugged driving,” which can result in fines, loss of driver’s license or prison. It is a despicable, dishonest law, particularly as it relates to marijuana, since detectable amounts of marijuana remain in your system for quite some time.

You end up punishing people for non-existent offenses, and create a perverse system of incentives. For example, if someone smoked pot yesterday and wants to drive today, from a legal perspective they might as well toke up right before driving. Either way, if caught, it’s considered drugged driving. The people most likely to be deterred by “per se” standards are those who would have been responsible anyway. It’s touted as a way to increase driving safety, but it does no such thing.

Current drug czar Kerlikowske has jumped on the drugged driving bandwagon big time, particularly with his repeated dishonest use of National Highway Traffic Safety Administration (NHTSA) data. He’s willing to buck his administration’s own scientists in order to promote the idea that drugged driving is some kind of epidemic.

And in December, Kerlikowske gave a special Guest Blog spot to Robert DuPont. DuPont is a long-time prohibitionist who has made a fortune off drug testing. He is also, through his Orwellian-named Institute for Behavior and Health, one of the primary advocates of “per se” drugged driving laws, touted at his StopDruggedDriving.org website [Side note: that site was originally DruggedDriving.org, but they must have decided that might be misinterpreted, so they added the StopDruggedDriving url and pointed it to the original site.]

Their description of the advantages of “per se” is priceless.

The benefit of a per se standard is that prosecutors do not have to meet more complex standards of guilt.

Yeah, don’t you hate it when you actually have to prove a crime in order to jail someone. It’s so much easier when you can just per se so that everyone’s automatically guilty. There must be some other creative ways we can help prosecutors out. Maybe we could make it so that if you’re black, you’re per se guilty of murder. Think of all the work we could save!

In addition, with the per se standard drivers know that they must abstain from use of illegal drugs before getting behind the wheel of a car or face the risk of a Driving While Intoxicated (DWI) conviction.

No. With the per se standard drivers have no idea how long they must have abstained from marijuana use prior to driving, and since the time is likely to be longer than any normal person could go without driving, the law will be ignored by most, leading to the outcome of being able to selectively prosecute certain “types” of people using per se laws to pile on charges.

So what is the likelihood of a nationally persuaded “per se” drugged driving law? Hard to say. The Drug War Chronicle in 2004 noted an attempt to do so then in Congress, but it got some significant opposition (states can be unhappy when given mandates like this). Maybe it wouldn’t fly, and yet DuPont’s website claims that almost 1/3 of states have already adopted such laws on their own.

But if some states start legalizing pot, this could easily come up again. The feds wouldn’t be able to use the bribery approach to stop the states from legalizing pot, because potential tax revenue from legal pot would likely be more than any lost highway funds. But with states legalizing pot, the feds could easily raise the fear of a sudden epidemic of drugged drivers. (When raising the minimum drinking age to 21, all the arguments were about road safety, even though non-drivers under 21 were prohibited from drinking as well.)

All they’d need is some poster child — little Timmy and his mother, on their way to see Timmy’s father returning from Afghanistan, are killed in an auto accident and the driver of the other car tests positive for drugs (it won’t matter that the driver was also drunk). From that point on, facts, statistics, and science will no longer matter.

This is why it is important for us to counter drugged driving stories whenever we can (especially including the lazy, incompetent reporting of the Ashley III Halseys out there), and point out the dishonesty and lack of practical value inherent in “per se” laws.

And if all else fails, we’ll just have to join them.

Perhaps we can push for the introduction of per se cellphone driving laws. Makes as much sense. It’s tough now for law enforcement to know if the driver was actually talking on their cellphone when driving through that school zone, or if they were texting while driving. Let’s make it easy. Possession or ownership of a cellphone is per se evidence of driving while texting (enhanced penalties for possession of a Blackberry).

See how that flies.