With the vote on California’s Prop 19 inching ever closer, the enforcement plot thickens.  Not surprisingly, Attorney General Eric Holder plans to step up enforcement of federal law against potheads to fill the gap.  After all, with an arch-liberal in the White House, what better way to maintain order than use the federal courts to handle the dime bag dealers.  Federal judges will be thrilled. 

But then, marijuana remains a Schedule 1 substance and a federal crime.  If they don’t like it, the time to argue was when Congress decided to play jurisdictional games with drug laws, assuming the federal courts would be the backstop rather than the catcher.  The idea of having Magistrates doing nightcourt to handle the volume of pot smokers streaming into federal court is, frankly, kinda funny.  They’re going to need bigger arraignment courtrooms.

But as Radley Balko notes, Los Angeles County Sheriff Lee Baca says that he’s going to continue to bust pot smokers too.  The thrust of Radley’s complaint is that Sheriff Baca, should he pursue this course, would be violating the law of California, as determined by its citizens through popular vote, in direct violation of his duty to uphold the law.

It’ll be fascinating to see how this plays out in the courts. Would a California state judge hold Baca liable for deliberately and knowingly breaking California state law? Would Holder’s Justice Department defend him? Let’s say a sheriff like Baca arrests a Californian for an act that’s a violation of federal law, but legal under state law. Seems possible that with the right DA, someone like Baca could be convicted in state court for civil rights violations (or whatever it’s called under California law), while the arrestee could still be convicted for violating federal law. Then, maybe Baca protects himself by always bringing a federal agent along to perform the actual arrest.

The mechanics needed to authorize Baca’s deputies have long been in use.  The feds need only cross-designate the locals, as has long been the case with joint task forces, to enforce federal law.  The defendant will be brought to the federal courthouse rather than the state one, but the law enforcement officers will not be violating California law.  There is no Cali law prohibiting them from arresting for marijuana under valid federal law.

As for the implications of a local official refusing to heed the will of the people, that’s another story.  To the extent malum prohibitum crimes find their moral justification in the social compact, the decision to adhere to the wrongs decided by society even if they aren’t inherent evils, Sheriff Baca has a problem.  Bear in mind that the use of intoxicants, even drugs, wasn’t always a crime.  Indeed, most were over-the-counter cure-alls in their better days, and at minimum good for Victorian parties.  It wasn’t until much later that we decided to put them in the evil category.

Whether Prop 19 passes has yet to be seen, but the whole proposition concept of California is at stake when the guy with a gun decides that he’ll enforce laws in whatever fashion he likes, and ignore the public will as he chooses.  If Sheriff Baca is allowed to do so, then why not everyone else in government?  And if everyone else in government can do so, certainly the people, from whom all authority derives, can do so as well.  There’s no conceptual end to the problem once we decide that laws don’t count.

Regardless of how this plays out, however, Sheriff Baca’s announced position that he will continue to use his authority, not to mention weapons, in the fashion he thinks best already undermines the authority vested in him.  There are plenty of crimes that harm no one, and only give rise to punishment because a bunch of people in suits say so.  Ripping away the claim that there’s meaning to law simply because it is law, as Baca does here, exposes his authority as a sham.  Take something relatively innocuous, like overly tinted windows, and explain to a person he should suffer a penalty when the Sheriff can announce that the law doesn’t matter to him? 

Despite Baca’s bravado, it seems unlikely that federal judges will welcome his arrestees into their house.  They already hate how federal criminal law has turned them into local town justices, deluged with big numbers of defendants alleged to have committed inconsequential crimes.  This isn’t what they signed up for.  They do not want to deal with parking tickets.  Or pot smokers.  Sheriff Baca may have big plans for saving Californians from themselves, but he may find that the rest of he system isn’t as impressed with his efforts as he is.

In the meantime, let’s see how comfortable state judges in Los Angeles County feel as they give morality talks to defendants about the majesty of the law, knowing that Sheriff Baca is the poster boy for laws meaning nothing.