Wednesday, May 03, 2006

Criminalizing conduct overseas

Orin Kerr has this post about the legalization of drugs in Mexico:

Mexico to Legalize Possession of Small Amounts of Cocaine, Heroin, Marijuana and Other Drugs
by Orin Kerr

According to the Associated Press, President Vincente Fox of Mexico is set to sign a bill that will legalize the possession of ‘personal use’ amounts of marijuana, cocaine, heroin, and unnamed “other drugs.”
Millions of Americans live near the U.S-Mexico border. In light of that, the Mexico law raises an interesting question: Is it legal for an American citizen to travel to a foreign country where drugs are legal, to take the drugs in that country, and then to return to the United States? I don’t know, but I’m sure some readers do (purely out of academic interest, of course).

This issue is being litigated in this District in another forum -- sex with minors overseas. In some countries, the age of consent is 16 (in some it's less than that). And in many of these countries, prostitution is legal. Congress, however, has criminalized the act of intending to go overseas to engage in prostitution with a minor (as defined by the U.S.). The Federal Defender's Office has an appeal pending questioning whether Congress has the power to criminalize such an act (thought) where if the person carried out the act, he would be violating no law in the other country. Thoughts?


Anonymous said...

The overseas issue is fascinating. Reminds me a bit of the famous 1L "impossibility" case regarding Lady Eldon's lace. I'm guessing the Govt's basic argument is that even if the act would be legal elsewhere, there is still harm to the USA if people are planning the offense here, thus creating (or enhancing) the market for the unwanted industries. Or is it something else? Somebody educate me here...

Anonymous said...

that sounds right, but can congress do that? if someone wanted to smoke marijuana in amsterdam (or now mexico), why should the us be able to say no?

Anonymous said...

As to whether the US should criminalize activity abroad - that is a policy question worth bringing up around election time.

As to whether Congress has the power to criminalize such activity ... they have the power to regulate foreign commerce. That is a broad power
that is not limited by federalism-like restraints (as Congress's interstate commerce clause power is). The only two laws (both upheld by the federal courts so far) to criminalize local acts outside the country that I know of are 1) the Cuban Cigar Smoking statute and 2) the provision of the Protect Act that criminalizes sex with children under the age of 16 outside the country. Both of which have plenty of jurisdictional tags - making it harder to strike down. The "commerce" aspects of buying drugs or sex in other countries can be stretched quite effectively. (Pretend you are a creative prosecuter - the money used was drawn on a US bank, they arrived through instramentalities of commerce, etc.) Unfortunetly, our case law suggests Congress could criminalize activities by American citizens and residents abroad - even when those acts are legal abroad. Either way, should such a law pass - there will be plenty of opportunities for defense attorneys to challenge the constitutionality in the Southern District of California.

Anonymous said...

People go to Amsterdam all the time to smoke weed. What is the difference?

Anonymous said...

end of conversation?