On November 4, 2008, the voters of Massachusetts approved an initiative to decriminalize possession of a small amount of marijuana. In some districts, the voters favored the initiative by 65%. This progressive proposition is consistent with legislation enacted in California quite some time ago.
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
Wednesday, November 26, 2008
Criminal Negligent Homicide?
Recently legislation has been sponsored that seems to create the crime of negligent homicide.
Historically the law has maintained a natural reluctance to impose criminal liability on the basis of negligent conduct. New Jersey's criminal code however, has created criminal offenses based on an actor's negligence. Currently, the law defines negligent criminal conduct to require a gross disregard for the risks associated with the actor's conduct. This new proposed legislation seems to clarify decisional law that authorizes a homicide conviction on the basis of gross negligence.
The rub with this new form of the statute is that, although a conviction would require third degree penalties with a sentencing range of three to five years, it will also authorize an eighteen month minimum mandatory period of incarceration. This term of parole ineligibility is consistent with the unfortunate and inexplicable penchant of some of our legislators to continue to maintain a blood-thirsty philosophy of punishment in the criminal justice system. Indeed, when it is recognized that the legislature has now prohibited punitive damages to be assessed against arrogant industrialists who create devastating loss because of their gross negligence, the current form of the statute blinks at reason.
Historically the law has maintained a natural reluctance to impose criminal liability on the basis of negligent conduct. New Jersey's criminal code however, has created criminal offenses based on an actor's negligence. Currently, the law defines negligent criminal conduct to require a gross disregard for the risks associated with the actor's conduct. This new proposed legislation seems to clarify decisional law that authorizes a homicide conviction on the basis of gross negligence.
The rub with this new form of the statute is that, although a conviction would require third degree penalties with a sentencing range of three to five years, it will also authorize an eighteen month minimum mandatory period of incarceration. This term of parole ineligibility is consistent with the unfortunate and inexplicable penchant of some of our legislators to continue to maintain a blood-thirsty philosophy of punishment in the criminal justice system. Indeed, when it is recognized that the legislature has now prohibited punitive damages to be assessed against arrogant industrialists who create devastating loss because of their gross negligence, the current form of the statute blinks at reason.
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