The day before Thanksgiving, President Trump pardoned his former national security adviser, Michael Flynn, who had pleaded guilty to lying to the FBI.
According to Article 2, Section 2, Clause 1 of the Constitution, the president “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” According to the case of Ex parte Garland (1867), the scope of the president’s pardon power is quite broad. And according to United States v. Klein (1871), Congress cannot limit the president’s grant of an amnesty or pardon.
But Flynn wasn’t the only one that the president pardoned last week.
Carrying on a tradition formalized by President George H. W. Bush, President Trump pardoned two turkeys — Corn and Cob — at a Rose Garden ceremony on Nov. 24. The pardoned Iowa birds, which were raised by Ron Kardel, chairman of the National Turkey Federation, will live out the rest of their days at Iowa State University.
Pardoning the turkeys was all in good fun, but there is a more serious pardon that Trump should have considered. Hundreds of pardons actually. Trump should have pardoned all those serving time in federal prison for the non-crime of being on the wrong side of federal drug laws — and this includes marijuana.
Although 35 states have legalized the medical use of marijuana, and 15 states have legalized the recreational use of marijuana, it should not be forgotten that the federal government still considers the growing, distributing, buying, selling, possessing, or smoking of marijuana to be a violation of federal law. Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act (21 U.S.C. 801). As a Schedule I drug, marijuana is said to meet the following criteria:
- The drug has a high potential for abuse.
- The drug has no currently accepted medical use in treatment in the United States.
- There is a lack of accepted safety for use of the drug under medical supervision.
The Supreme Court has ruled that the federal government has the authority to prohibit marijuana possession and use for any and all purposes.
Under federal law, “possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction. For a second conviction, the penalties increase to a 15-day mandatory minimum sentence with a maximum of two years in prison and a fine of up to $2,500. Subsequent convictions carry a 90-day mandatory minimum sentence and a maximum of up to three years in prison and a fine of up to $5,000.” Fines and terms of imprisonment for “distribution” are much higher. And this is just marijuana. Penalties for getting caught with other drugs are even worse.
According to the Federal Bureau of Prisons, there are currently 67,076 inmates, or 46.2 percent, in federal prison for drug offenses. And yet, conservative Ann Coulter says that “whenever you read about a guy in prison for a ‘nonviolent drug-related crime,’ they’re lying.”
Why should President Trump pardon those convicted of violating federal drug laws?
The war on drugs is unconstitutional on the federal level. Nothing has changed, as far as the Constitution is concerned, since James Madison wrote in Federalist No. 45: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” This is why when, about a hundred years ago, the Progressives wanted the U.S. government to ban alcohol, they first had to get the Constitution amended. If there are to be drug prohibition laws, they should all be made on the state level.
It is not the proper role of government to concern itself with the nature of any substance that its citizens want to eat, drink, smoke, inject, absorb, snort, sniff, inhale, swallow, or otherwise ingest into their bodies. It is illegitimate for government to be concerned with the medical or recreational activities of any of its citizens.
Vices are not crimes. Every crime should have a tangible and identifiable victim with real harm and measurable damages. As Lysander Spooner put it in his work Vices Are Not Crimes (1875): “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another.”
The war on drugs is a monstrous evil that has ruined more lives than drugs themselves. It has failed to prevent or reduce drug use, its costs far exceed any of its supposed benefits, it violates individual liberty and property rights, it criminalizes peaceful activity, and it is incompatible with a free society.
No one should ever under any circumstances be locked in a cage merely for possessing a substance the government doesn’t approve of. Mr. President, get your pen ready.
Laurence M. Vance is a policy advisor for the Future of Freedom Foundation. He is the author of more than a dozen books, including “The Revolution That Wasn’t.” Republished from the Tenth Amendment Center.
