Are drug defense attorneys legally blind or legally blond?
Nearly a thousand of America's leading drug and criminal defense attorneys have directly received my several emails proclaiming drugs to be regulated, and thus legal. I have told them 1) that, between our republics' two police powers, drugs are at most regulated and not criminally prohibited, and 2) that drugs are criminally prohibited only in the federal areas where Congress may legislate as a non-republic.
If drugs are not criminally prohibited within America's fifty state republics, then what is? The answer is one of two things. First, criminal law prohibits injurious behavior that we (almost) all naturally agree is bad, which is called malum in se. I think of it as behavior that is per se bad. Whenever we either negligently or intentionally injure others, or their interests, which is to violate their natural right not to be harmed, it is malum in se.
In general, malum in se which is negligent is tortious. That which is intentional is criminal. Both violations of natural rights are adjudicated in the law jurisdiction of the judicial branch, which has civil and criminal powers over injury.
In contrast with malum in se is that unwanted behavior which the legislature prohibits, such as drug dealing, which is called malum prohibita. Malum prohibita is behavior that does not directly injure other people and that we all naturally do not agree is bad. As we shall see below, it is commercial behavior that – with one exception – is to be regulated in the executive branch of government and is not criminally prohibited in the judicial branch.
The second type of behavior that is criminally prohibited via the judicial branch is the exception to malum in se, noted above. It is malum prohibita (legislative prohibitions) that a constitutional amendment process has placed into the law jurisdiction of judicial courts, where it can be treated criminally.
The 18th Amendment is an example of such an amendment. It took the unwanted commerce of alcohol (malum prohibita) out of regulation under equity by the executive branch, and placed it into the law jurisdiction in the judicial branch where it could be treated criminally. The 21st Amendment returned such malum prohibita to non-criminal regulation, where all malum prohibita today is properly enforced.
Drug defense attorneys in America have been deaf, dumb and legally blind to these distinctions. They do not understand that crime is malum in se and that, absent a constitutional amendment, malum prohibita applies only to commercial entities that governments regulate within the states, such as all commercial enterprises that manufacture, distribute and dispense drugs.
Ironically, America's drug laws are best characterized by a single statement of Sarah in the movie Legally Blonde (2001), played by Reese Witherspoon. In her first Criminal Law class at Harvard Law School, Sarah's professor asks her whether she would “rather have a client who has committed a malum in se crime or malum prohibita?” (Note that the professor did not call malum prohibita criminal.)
In answer to her professor's question, Sarah responds: “Malum prohibita. Because the client would've committed a regulatory infraction as opposed to a dangerous crime.”
Touche, Sarah! You just summed up how drug dealing (malum prohibita) is to be treated, absent a constitutional amendment. It is to be regulated. Infractions are regulatory violations, subject to the equitable remedies of forfeiture and injunction, and not subject to criminal law.
This is also what the U.S. Supreme Court told us in Ohio v. Helvering (1934): that government's police power with regard to business is regulatory, not prohibitory.
Now, if only we can get America's legally blind drug defense attorneys to understand this information! Given that they all apparently missed the first lesson in Criminal Law class, i.e., about the differences between a regulatory violation and a crime, every single one of them should buy my book today. Click here.
If drugs are not criminally prohibited within America's fifty state republics, then what is? The answer is one of two things. First, criminal law prohibits injurious behavior that we (almost) all naturally agree is bad, which is called malum in se. I think of it as behavior that is per se bad. Whenever we either negligently or intentionally injure others, or their interests, which is to violate their natural right not to be harmed, it is malum in se.
In general, malum in se which is negligent is tortious. That which is intentional is criminal. Both violations of natural rights are adjudicated in the law jurisdiction of the judicial branch, which has civil and criminal powers over injury.
In contrast with malum in se is that unwanted behavior which the legislature prohibits, such as drug dealing, which is called malum prohibita. Malum prohibita is behavior that does not directly injure other people and that we all naturally do not agree is bad. As we shall see below, it is commercial behavior that – with one exception – is to be regulated in the executive branch of government and is not criminally prohibited in the judicial branch.
The second type of behavior that is criminally prohibited via the judicial branch is the exception to malum in se, noted above. It is malum prohibita (legislative prohibitions) that a constitutional amendment process has placed into the law jurisdiction of judicial courts, where it can be treated criminally.
The 18th Amendment is an example of such an amendment. It took the unwanted commerce of alcohol (malum prohibita) out of regulation under equity by the executive branch, and placed it into the law jurisdiction in the judicial branch where it could be treated criminally. The 21st Amendment returned such malum prohibita to non-criminal regulation, where all malum prohibita today is properly enforced.
Drug defense attorneys in America have been deaf, dumb and legally blind to these distinctions. They do not understand that crime is malum in se and that, absent a constitutional amendment, malum prohibita applies only to commercial entities that governments regulate within the states, such as all commercial enterprises that manufacture, distribute and dispense drugs.
Ironically, America's drug laws are best characterized by a single statement of Sarah in the movie Legally Blonde (2001), played by Reese Witherspoon. In her first Criminal Law class at Harvard Law School, Sarah's professor asks her whether she would “rather have a client who has committed a malum in se crime or malum prohibita?” (Note that the professor did not call malum prohibita criminal.)
In answer to her professor's question, Sarah responds: “Malum prohibita. Because the client would've committed a regulatory infraction as opposed to a dangerous crime.”
Touche, Sarah! You just summed up how drug dealing (malum prohibita) is to be treated, absent a constitutional amendment. It is to be regulated. Infractions are regulatory violations, subject to the equitable remedies of forfeiture and injunction, and not subject to criminal law.
This is also what the U.S. Supreme Court told us in Ohio v. Helvering (1934): that government's police power with regard to business is regulatory, not prohibitory.
Now, if only we can get America's legally blind drug defense attorneys to understand this information! Given that they all apparently missed the first lesson in Criminal Law class, i.e., about the differences between a regulatory violation and a crime, every single one of them should buy my book today. Click here.