In Lieu of Attorney General Eric Holder's Statement on California Prop. 19

[Xicano]

For what its worth I wish to post a rant. Of course what I cite below, albeit the way I see it is academically correct, isn't a get out of jail free card if one is arrested on a victimless crime charge because ultimately the justice system has all the power and all the guns and will do what they want despite what the law says.

First off allow me to distinguish the difference between crime and tort. Some acts can be considered either a crime or a tort but the distinction between crimes vs torts is based on the public nature of the criminal act itself and how the remedy is pursued. If a wrongful act is pursued by, and is at the discretion of, the victim. That is a tort. On the other hand if a wrongful act is pursued by the state for remedy (punishment). That is a crime. In other words a tort is a wrongful act against the civil rights of individuals and considered by law as something between individuals. On the other hand a crime is a wrongful act where the law considers an act against an individual as an act against the public and of course to be pursued by the public (the state) for remedy.

Now there are numerous cases cited in American Jurisprudence regarding "standing", "subject matter jurisdiction" and "corpus-delicti". This is central to my point because in every case cited in American Jurisprudence, and we're not talking dicta here. We are talking actual rulings. In every case the courts have pointed out that in every criminal case there must exist all the elements of a corpus-delicti. They also cite as to what those elements are, and, they are: The violation of an individual's rights -and- cause of damage or injury as a result of that violation. Usually the way the courts cite it is like this example: 1) the fact of injury, loss, or harm, and 2) the existence of a criminal agency as its cause.

So in other words for the court to have jurisdiction, prosecution must prove standing. For prosecution to prove standing, prosecution must prove three things. That the two elements of a corpus-delicti exist and that the court has redressability (i.e. is there an actual law for remedy). Without conforming to this standard of law, prosecution has not shown it has filed a "valid cause of action" thus hasn't acquired standing. All it has done up to this point is filed a complaint and a complaint is NOT the same thing as a case.

Now lets examine two different hypothetical scenarios. Say Yosemite Same punched Bugs Bunny in the nose. Is there a valid criminal case to be made here? Yes. First, Bugs Bunny certainly has the individual right not to be punched in the nose, so Yosemite Same has indeed violated Bugs Bunny's individual right. Secondly, damage or injury is a result from this violation. Therefore Yosemite Sam's actions satisfies the law's definition of a corpus-delicti. Also since there are laws for remedy concerning assault, therefore in this case, law enforcement can indeed file a valid cause of action and prosecution can indeed prove standing.

Now lets say Porky Pig has marijuana growing in his backyard and a garage storing 100 tons of pot. Where's the corpus-delicti? 1) Where is the injury, loss, or harm? 2) Who is claiming Porky Pig injured them or their property? Remember you must have both elements, not just one or the other.

So you see every single last person sitting in jail because they were arrested on possession of a substance listed on schedule I of Nixon's Controlled Substance Act is sitting in jail based on a "complaint" where it is impossible if you are following black-letter-law for prosecution to prove standing. The law against possession is horseshit because you cannot truly prove standing.

As I mentioned above, this is academically correct, but, in reality we live in a world where the rule makers and enforcers don't necessarily abide by the rules, and so here we are. Anyway, that's the way I read the law and that's my rant on this issue.


:rant:


Peace,
Xicano

[thunder rising]

1. The drug cartels will be tipping off the FBI.

[RainDog]

2. very interesting rant! thanks

and the distinction seems to be the very definition of a "victimless" crime - except the victims are those who are treated as criminals for growing cannabis.

[nashville_brook]

3. i think the nut of the argument is that "harm" is missing -- we disagree with the state's

defining pot as a "harmful" substance. and there's TONS of evidence that reality trends in our direction.

the strict libertarian argument would be that there's no difference btwn 100 pound of pot in Porky Pig's shed, and 100 pounds of heroin. this is a net positive for pot reform, b/c reasonable people looking at the potential harm btwn the two substances would say that there's a clear line btwn the two. making pot reform an easy argument to make on the basis of a reasonable person's definition of "harm."

[DCKit]

5. Very Nice!!! n/t

[HERVEPA]

4. By the way, you meant "in light of". "In lieu of" means "in place of."

[Xicano]

6. Thanks HERVEPA for the correction, but, actually I did mean "in place of."

I mean for my point-of-view to be in place of Eric Holder's point-of-view with respect to what the laws say.


Peace,
Xicano

[DirkGently]

7. Disagree in part. What you're on to is the notion of harm. Works for pot, not for everything.

I don't doubt the notions you're describing exist in some jurisprudence somewhere, but you probably also know that standing of the government to prosecute crimes is not a part of current American criminal jurisprudence, which presumes the standing of the government to enforce any not un-Constitutional law on the books, and requires only mens rea (guilty mind) and acts reus (criminal act) to constitute a crime.

But I think the heart of what you're on about is the notion that government shouldn't punish actions that don't cause harm. The question then becomes "How direct must the harm be to be punishable?" When it comes to banned substances, I think deciding you can't punish someone for growing non-toxic, non-addictive, sometimes medically beneficial pot is an easy call, but it would be oversimplifying things to suppose someone cooking up a pile of crank to distribute at the local elementary falls in the same category. Who is "harmed" by *making* the drug? No one, immediately, but few besides hardcore Libertarians would agree there's no basis to ban the activity. Someone will be harmed, without a doubt.

The same logic is applied to punishing the pot grower; it just happens to be based on a false belief that pot and crank cause comparable harm.



Editted for speling.

[Xicano]

8. Thanks for your input DirkGently, but, I have to disagree.

I base my point-of-view on numerous cases and I mean the list is almost endless. Here let me cite a few examples.



People v. Sapp, 73 P.3d 433, 467. Cal

"In every criminal trial, the prosecution must prove the corpus delecti, or the body of the crime itself-i.e., the fact of injury, loss or harm, and the existence of a criminal agency as its cause."



Kid's Care, Inc. v. Ala. Dept' of Hum. Res

"Standing requires an injury in fact...When a party without standing puports to commence an action, the trial court acquires no subject matter jurisdiction...If a named plaintiff has not been injured by the wrong alleged in the complaint, then no case or controversy is presented...A party's injury must be "tangible,"...



People v. Lopez, 62 Ca. 47, 254 C.A.2d 185

"In every prosecution for crime it is necessary to establish the “corpus delecti”, i.e., the body or elements of the crime.”



People of the State of Colorado v. Smith, 510 P.2d 893

"the corpus delecti of a crime minimally requires two elements: (1) An injury which is penally proscribed...and (2) The unlawfulness of some person's conduct in causing that injury"



Missionary Soc. v. Bd. of Pardons & Paroles, 896 A.2d 809, 812. Conn

"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause…(A) court lacks discretion to consider the merits of a case over which it is without jurisdiction"




State v. Allen, 335 So. 2d 823,825. Fla

"It is a fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed. The state therefore must show that a harm has been suffered of the type contemplated by the charges (for example, a death in the case of a murder charge or a loss of property in the case of a theft charge), and that such harm was incurred due to the criminal agency of another. Thus, it is sufficient if the elements of the underlying crime are proven rather than those of the particular degree or variation of that crime which may be charged."



People v Jennings, 53 Cal 3d 334, 279 Cal

The corpus delecti rule requires that the corpus delecti or the body or substance of the crime charged be proved independent from the accused’s extrajudicial confession or admissions. The corpus delecti of a crime consists of two elements: (1) the fact of the injury or loss or harm, and (2) the existence of a criminal agency as its cause.

"…there must be sufficient proof of both elements of the corpus delecti beyond a reasonable doubt. 29A American Jurisprudence Second Ed., Evidence § 1476."




Peace,
Xicano

[DirkGently]

9. You're mixing and matching a bit to arrive at an inapplicable conclusion.

"Corpus Delecti" means proof a crime occurred; classically, the body in a murder case. "Standing" is the right of the party in question to bring the case at hand. The two don't combine to mean the state is barred from bringing an action based on the level or type of harm involved. That type of "standing" is presumed. Or, more specifically, it is granted by a Constitution. States and the United States have standing to enforce their respective laws.

The "corpus delecti" for prosecuting a pot grower would just be proof that pot growing, a crime under present law, occurred. You couldn't be prosecuted as a pot grower absent evidence pot was grown. But the prosecution does not, under any present theory, have to prove the grower harmed a specific person. That is not an "element" of the crime. Think about what an analysis like that would do to, for example, a counterfeiting case.

If one of the cases you've cited goes a step further and holds that the state or federal government can't prosecute a crime on the books if an analysis of the criminal statute does't contemplate enough direct harm to an individual, I would love to see that language.

In a civil case, a plaintiff will lack standing to sue if the act complained of does not affect that particular person. Can't sue your neighbor for trampling your other neighbor's field. That doesn't apply to criminal statutes, where the the only "standing" issue is whether the authority in question is authorized to enforce the law at hand. The harm is presumed in the creation of the criminal statute. Under the logic you're suggesting, the state or federal authorities couldn't prosecute a theft unless state property was stolen, for example.

Again, I think there's a better analysis at the level of what activities can be made illegal in the first place, based on the level of actual harm the activity causes. The harm analysis you want occurs at the legislative, not enforcement level.

Editted for speling