Are drug defense attorneys committing legal malpractice? My new book BUSTED – A Whistleblower's Guide to the War on Drugs says that most of them are. They commit malpractice by defending drug possession and dealing matters in the wrong courts, both at the state and federal levels. You can't get more wrong than that.
Drug possession is a natural right which is not subject to any court. (see Article I, Section 1 of the Indiana constitution (1816) and Beebe v. State of Indiana, 6 Ind 501 (1855)). As you will see below, it is also a statutory, legal right. In contrast, drug dealing is subject to regulation and its equitable, non-criminal due process and state remedies.
Essentially, drug defense attorneys have been defending regulatory matters in judicial courts, in the wrong branch of government. All persons that manufacture, distribute or dispense drugs – as a commercial class – are regulated by the state and federal governments, not criminally prohibited. Nationally, regulation is accomplished under Congress' interstate commerce authority at Article I, Section 8, Clause 3 of the U.S. constitution, which does not include the power to criminally prohibit any kind of commerce.
This rule is easily verifiable by reading 21 USC 822 in the U.S. Controlled Substances Act. As my book shows, this section is republican legislation that operates within the fifty state republics. Section (a) says that all persons who intend to manufacture, distribute or dispense drugs are to get registered with the U.S. Attorney General (via the DEA). Those manufacturers, distributors and dispensers who do not get registered are subject to the equitable remedies of confiscation, civil forfeiture and injunction, the latter which is enforceable under courts' powers of contempt.
Because Congress regulates all drug commerce within the states, the criminal penalty provisions of the U.S. Controlled Substances Act, e.g., 21 USC 841 – 844A, operate only within the federal areas and within Article I courts – not Article III courts. Congress can only prohibit and make unlawful that which is under its plenary legislative jurisdiction at Article I, Section 8, Clause 17 of the U.S. Constitution. Otherwise, all crimes within Article III courts are defined by the criminal standards of U.S. constitution – not Congress.
Thus, the federal government's criminal jurisdiction 1) is largely territorial – confined to the federal areas, and 2) confined to Congress' several enumerated powers within the states, which do not include prohibiting any commerce. See Bond v. United States, 134 S.Ct. 2077, 2086 (2014). Ultimately, what is criminal throughout all of the United States is malum in se (evil), which definition is secured by the states' and U.S. constitutions. When American constitutions refer to crimes or offenses, they refer to behavior that violates other people's natural rights - not the edicts of legislatures.
The criminal penalty provisions of the states' CSAs do not prohibit or make unlawful either drug possession or dealing, but merely call such behavior “misdemeanors” or “felonies.” (Legislatures could call exercising a “felony,” but that wouldn't make it so.) Such malum prohibita is not justiciable because such “crimes” do not meet the definition of real misdemeanors and felonies as referred to in America's constitutions, which determine judicial criminal jurisdiction.
Likewise, read section (c) of 21 USC 822, along with its definition section at 21 USC 802(27). These provisions say 1) that drug users need not register with the Attorney General (DEA) and 2) that drug users may “lawfully possess” drugs for their own use and for the use of their households. This is Congress' codification and admission of people's natural right of drug possession within America's fifty state republics. Without this provision in both the states' and U.S. CSAs, the acts would misstate the law and be unconstitutional. (I say the acts are constitutional, but falsely enforced.)
The states' Uniform Controlled Substances Acts treat drug possession and drug dealing the same as does the U.S. CSA within the states. In states such as Indiana, 1) drug possession is both a natural and statutory (legal) right (see IC 35-48-3-3(e) and IC 35-48-1-27), 2) drug dealing is regulated by the Indiana pharmacy board (see IC 35-48-3-3(a) and (b)), and 3) real drug crimes, such as getting ripped off, are to be tried in criminal courts.
In Indiana, once the pharmacy board exhausts its administrative remedies against disfavored drug dealers, the state may judicially enjoin their unwanted commerce (see IC 35-48-3-3(i)). Due to the Supremacy Clause in Article IV, Paragraph 2 of the U.S. constitution, the similar power of federal regulators supersedes that of state regulators. This is not to lose the main point – that all of these state and federal regulators only regulate drug commerce within the states, because no adult commerce (except slavery) is criminally prohibited.
So, in less than a handful of paragraphs I have shown you (and all drug defense and legal malpractice attorneys reading this): 1) that drug possession is a natural and statutory right, 2) that drug dealing is regulated within America's fifty states, subject to injunction – not incarceration, and 3) that disfavored drug commerce is criminally prohibited only in the federal areas where Congress has special legislative powers.
Beginning with the book's unveiling this week, the standards of all American criminal defense attorneys (not just drug attorneys) will necessarily rise. This is because all of them will learn the meaning of crime, and will thus learn the criminal subject matter jurisdiction of criminal courts, which their and my legal educations failed to teach. In hindsight, most of their prior defense work will constitutes legal malpractice in the future. This is because most of their work has been in the wrong courts, in the wrong branch of government.
Until drug defense attorneys come to this realization, people who are incarcerated for or charged with nonviolent drug offenses need to purchase this book for their attorneys. This is how the market will cause drug defense attorneys to step up their game. Their game falls short because they have inadequately read, if at all, not only America's constitutions, but also its Controlled Substances Acts. This is easily demonstrated by the above information which has always been available to them.
I've just shared thousands of dollars of legal content with you, which you can only find here and which only scratches the surface of the valuable information in BUSTED - A Whistleblower's Guide to the War on Drugs. Just imagine what $29.95 more will buy.
Perhaps it will buy the freedom of all mere regulatory violators. Perhaps also an education in legislative and subject matter jurisdiction, not to mention an introduction to the natural law basis of the U.S. constitution.