There is general misunderstanding in this country regarding pot. Though many have struggled to keep the record straight, misstatements and poor word choices can lead to confusion and untoward legal outcomes.
A fundamental premise of our Constitutional Republic is that the people have various fundamental rights. We believe their existence to be "self evident." One of these is the right to be able to be informed of criminal prohibitions; to comprehend the law. The "vagueness doctrine" thus requires that people of reasonable intelligence must be able to understand what a statute prohibits. If a law lacks clarity, if it is too vague, then the law violates our fundamental rights with which we are endowed by our creator; rights which are protected by our constitution.
This protection is founded in the constitutional precept of due process under the law, which is in both the 5th and 14th Amendments to the U.S. Constitution. The Florida Supreme Court has stated this thus: "the standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Brown v. State, 629 So.2d 841 (Fla. 1994). We are entitled as people to understand what our government has criminally forbidden.
A fundamental premise of our Constitutional Republic is that the people have various fundamental rights. We believe their existence to be "self evident." One of these is the right to be able to be informed of criminal prohibitions; to comprehend the law. The "vagueness doctrine" thus requires that people of reasonable intelligence must be able to understand what a statute prohibits. If a law lacks clarity, if it is too vague, then the law violates our fundamental rights with which we are endowed by our creator; rights which are protected by our constitution.
This protection is founded in the constitutional precept of due process under the law, which is in both the 5th and 14th Amendments to the U.S. Constitution. The Florida Supreme Court has stated this thus: "the standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Brown v. State, 629 So.2d 841 (Fla. 1994). We are entitled as people to understand what our government has criminally forbidden.
This is an issue with the current state of pot regulation in America. That is in part due to legislative action (state), inaction (federal) and the media. A fair number of people are continuing to use incorrect and misleading vocabulary. Whether through inadvertence or intent, those word choices have the potential to detrimentally affect Americans. Even a room full of very bright lawyers might struggle with the confusion created, as I recently experienced at a yet another seminar presentation on American pot and the law (though the proponents are careful in choosing their nouns, and it is not "weed," "marijuana," or "pot," it is always "cannabis").
There are a great many instances in which speakers and writers refer to "legal" marijuana. Recently, a headline announced: Bill To Legalize Marijuana In Minnesota Will Be Best ‘In The Country,’ Top Lawmaker Says. Another read: Lawmaker hopes Wisconsin could be close to legalizing marijuana. Yet another proclaimed: Missouri petition trying to legalize marijuana. Even the seemingly academically expert American Bar Association says: Despite statewide legalization, some counties ban probationers from using medical marijuana. The use of "legal" and "legalize" is as rampant as it is incorrect. No state can render marijuana "legal." That is a fundamental truth. In an excellent illustration, a speaker at that recent program compared this to a state "legalizing child pornography." Passing such a state law would still leave pornography illegal under federal law. A state cannot change federal law.
There is a precept in American law that holds federal law superior to any conflicting state law. The idea is almost as old as our very republic, ensconced in Article VI of the Constitution:
"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."
In the law, we call this the "Supremacy Clause," and it is not new to these pages. See Kansas Cannot Prosecute Identity Theft (September 2017); Learn from the Past or Repeat it (May 2016); Constitutional Challenge Recap and Overview (March 2016); What would you do for $2 billion? (April 2017). Federal law is superior to state law. Our founders believed it, they ensconced it in the U.S. Constitution, and our forebears ratified it.
The subject of marijuana is not new to these pages either. See Marijuana May Be a Problem, You Think? (January 2016); Measuring Marijuana Intoxication (July 2015); So Federal Law Matters in Colorado (June 2015); Federal Law Matters in Maine Also (June 2018); 2019 Marijuana Statute in Florida (2019). Pot has been a challenge on the horizon of workers' compensation for a decade and the discussions of it are building in both tenor and frequency.
The specifics of our Supremacy Clause and state regulation of medicine is found in Zohydro or Pot, A study in Federalism (April 2014). There are instances in which federal law is enforced, to the detriment of states striving to address drug issues. But, with marijuana, the federal government is deferential and detached. Under federal law, marijuana is illegal, but the federal government as yet declined to enforce the law. Thoughts on the oxymoron "Medical Marijuana" were published in January 2015. The progress of state-sanctioned or empowered use of illegal drugs has been seemingly unrelenting in recent years.
Suffice it to say that I have spent a fair amount of time thinking about the avalanche of pot rolling over our American landscape. The fact is, as mentioned above, that this subject is difficult even for lawyers to comprehend, in the current state. Our trip to the present began when federal officials began minimizing marijuana possession prosecutions. Without changing the characterization of this drug ("illegal"), the government evolved to less strict enforcement, allowing possession of small quantities. This was a recognition that our prison populations were expanding with (largely) non-violent offenders guilty of drug possession.
More recently, the federal ambivalence grew. Under the Obama administration, the Department of Justice flatly said that it would not prosecute marijuana violations. CNN reported that there were three memoranda "that had adopted a policy of non-interference with marijuana-friendly state laws." This was essentially a federal "hands-off" policy toward certain possession of such drugs. The memo announced that the executive branch would not enforce the federal law prohibiting this drug. In what context is it appropriate for a police agency to announce it will not carry out the will of the legislative, representative, branch?
In 2018, Attorney General Jeffrey Sessions issued a contrary memo:
"unleashing federal prosecutors across the country to decide individually how to prioritize resources to crack down on pot possession, distribution and cultivation of the drug in states where it is legal." (Emphasis added).
Notice again the press' misguided reference to the characterization "legal." But, despite that announcement by Attorney General Sessions, there has not been a return to federal prosecution of the many people actively engaged in drug dealing across America.
There is some suggestion that Congress drives this very process. Congress has not acted to decriminalize or legalize marijuana. Clearly, as our federal representatives, it could change the federal law that makes pot illegal. To date, it has been unwilling to do so. To pass such a law would require Congress to own the consequences of the drug use, and potential abuse, that could flow therefrom.
But Congress has dabbled in this discussion nonetheless. In 2018, Congress included language "to bar the DOJ from enforcing the federal marijuana ban in some circumstances." Most recently in 2019, Congress discussed the need to ease banking regulations to allow (illegal) drug merchants to utilize banking institutions. They were not an open legalization of pot, but attachments to federal spending bills. The efforts to facilitate the illegal drug industry were largely unsuccessful. Some see a hypocrisy. Congress holds true to pot being illegal but actively precludes the federal government from enforcing that law.
There is some suggestion that Congress drives this very process. Congress has not acted to decriminalize or legalize marijuana. Clearly, as our federal representatives, it could change the federal law that makes pot illegal. To date, it has been unwilling to do so. To pass such a law would require Congress to own the consequences of the drug use, and potential abuse, that could flow therefrom.
But Congress has dabbled in this discussion nonetheless. In 2018, Congress included language "to bar the DOJ from enforcing the federal marijuana ban in some circumstances." Most recently in 2019, Congress discussed the need to ease banking regulations to allow (illegal) drug merchants to utilize banking institutions. They were not an open legalization of pot, but attachments to federal spending bills. The efforts to facilitate the illegal drug industry were largely unsuccessful. Some see a hypocrisy. Congress holds true to pot being illegal but actively precludes the federal government from enforcing that law.
Another poor word choice is "prescription" for marijuana. There are many in the press who insist that those people choosing to use marijuana are doing so with a "prescription" from their physician. Recently this has been stated in Indiana ("a valid medical marijuana prescription"), Massachusetts ("obtained a medical marijuana prescription"), and New Jersey ("In 2016, his doctor prescribed marijuana"). Even experts in workers' compensation have used that term ("for the cost of medical marijuana prescribed"). The news is rampant with such examples.
But, as MarijuanaDoctors.com notes:
"you can not get a prescription for Medical Cannabis. Since it is still illegal at the federal level, technically doctors can not write a prescription for Medical Cannabis. However, they are able to write a recommendation for Medical Cannabis."
The press coverage, with repetition of "prescription," "legal," and "medical" creates an air of legitimacy that is unfortunate for the debate and potentially dangerous for ordinary people. How might it be unfortunate? The decision in Coates v. Dish Network is an example. So Federal Law Matters in Colorado (June 2015).
Mr. Coates was terminated from his employment for testing positive for this illegal substance. However, he held "a Colorado state license to use marijuana for medical purposes." In his mind, he was using a legal substance because his state government passed a law that said it would not prosecute the possession or use of pot. His state's decision not to prosecute, in his mind, equated to legality. He said he believed he was acting legally when he consumed the pot. Whether that was his spontaneous conclusion, or whether he was influenced by the poor media word choices is not clear.
But, Mr. Coates lost his wrongful discharge lawsuit against his employer (So Federal Law Matters in Colorado)(June 015). He lost because, as the Colorado Supreme Court noted, his use of marijuana was in fact not legal. It was illegal under federal law. The Supremacy Clause is the authority that federal law matters. Thus, this Colorado worker was lulled into a belief that his actions were legal, perhaps through the misstatements and mischaracterizations of the press who insist on promoting "legal marijuana." He was perhaps fooled by a state law withholding its prosecution for marijuana. Perhaps lulled by a federal practice or policy of not prosecuting the use of pot. Perhaps he was lulled by characterizations that it was therefore "prescribed" or "legal" or "medicinal." But, in the end, the marijuana was and is simply "illegal." Ordinary people need to be able to understand that, and its consequences.
The press and the states are creating and enabling confusion with phraseology. There are speakers in seminar after seminar that pontificate about "legalized marijuana." This creates no illusion for those who are growing and marketing the pot. I recently attended a seminar in which an all-star panel discussed the legality of marijuana. It is apparent that those who advise the producers and marketers of pot are careful in their word choice, parsing the law in advising their clients. It is clear that there is top-flight legal service being delivered to these grower/marketers.
But what of the everyday American who decides to partake? S/he may find that what they were led to believe is "prescribed" or "legal" is in fact grounds for discharge from their job. It is as possible that such a person might find it difficult thereafter to locate work within that, or even other professions. They might lose professional licenses or certifications that could impact the finding of their next job. While the decisions of the legislative leaders are within their powers and discretion, it would be of benefit to the everyday Americans if everyone would stop using the "legal" and "prescription" labels. If Congress is convinced that enforcing the law is inappropriate, would it not benefit society to then change the law, rather than quietly instructing the police not to enforce it?
Before a doctor "recommends" pot, the physician should explain that use remains illegal and subject to consequences. The doctor should make clear that they are not "prescribing" this illegal substance. Failure to do so may be seen by some as creating liability for the doctor if untoward consequences follow.
The press would do Americans a great service by striving for clarity on the "decriminalized under state law" and "recommended" by a physician distinction, followed by a warning that pot remains "illegal" in this entire country. The failure to do so is a disservice to those who are encouraged or lulled into use of something that may present serious consequences.
Employers should be frank and blunt with employees. If the use of pot could result in the loss of employment, the employer should clearly and unequivocally say so. That message should be repetitive. Employees should have no doubt that their illegal activity could result in loss of a job. Employers in today's environment cannot count on employees to understand that pot is illegal in the face of the multitude of misstatements and mischaracterizations that flood the environment.
We are entitled to know what is forbidden by law. It is our fundamental right. Not given by the government, but endowed by our creator. In this, we ordinary people are dependent upon our leaders and the fourth estate for clarity and accurate communication. As speakers, writers, and leaders in our workers' compensation community, we all should strive to be accurate in our vocabulary. We should decry the use of "legal," "prescribed," and other misnomers. We owe it to the debate, and to the people whose lives may be affected by misstatements.
The press would do Americans a great service by striving for clarity on the "decriminalized under state law" and "recommended" by a physician distinction, followed by a warning that pot remains "illegal" in this entire country. The failure to do so is a disservice to those who are encouraged or lulled into use of something that may present serious consequences.
Employers should be frank and blunt with employees. If the use of pot could result in the loss of employment, the employer should clearly and unequivocally say so. That message should be repetitive. Employees should have no doubt that their illegal activity could result in loss of a job. Employers in today's environment cannot count on employees to understand that pot is illegal in the face of the multitude of misstatements and mischaracterizations that flood the environment.
We are entitled to know what is forbidden by law. It is our fundamental right. Not given by the government, but endowed by our creator. In this, we ordinary people are dependent upon our leaders and the fourth estate for clarity and accurate communication. As speakers, writers, and leaders in our workers' compensation community, we all should strive to be accurate in our vocabulary. We should decry the use of "legal," "prescribed," and other misnomers. We owe it to the debate, and to the people whose lives may be affected by misstatements.
