Have you ever heard of someone getting arrested for marijuana possession and thought, “Wait a minute, isn’t marijuana legal?” Well, that’s both true and not true. There are many laws in the United States that remain on the books and are technically valid, yet they are ignored by law enforcement.
WRITTEN LAW VERSUS PROSECUTED LAW
During my years as a uniformed police officer and detective, one aspect of the criminal justice system always amazed me: the disparity between the written law and the prosecution of the law. In my book, On Call: Case Files from a Career in Homicide, I highlight real-world examples of the variation between the written law and the prosecution of those laws as they relate to homicide cases.
My first experience with this disparity occurred during my second year as a police officer. I was working as a uniformed patrol officer on the graveyard shift, 10 p.m. to 8 a.m.
I received a call for service where the reporting party alleged that her husband was refusing to pay rent and provide money to feed their child. I spoke to the wife, who confirmed that she had been married for two years and had a one-year-old child with her husband. She explained that in the past two weeks her husband’s drinking had increased nights out and had turned into him being gone for multiple days. He was currently staying with a friend.
I met with the husband at his friend’s house. He didn’t deny any of the allegations his wife had made. After being read his Miranda rights, he confirmed that he wasn’t going to pay rent on their apartment or give his wife access to his bank account because he needed money to drink and believed she was cheating on him. He admitted he was the only source of income for his wife and child and that he did not allow his wife to access any money he earned at his job. I informed him there was an Arizona law requiring a spouse to financially provide for their partner. He dismissed this information and told me he would do whatever he wanted with his money.
In 2002, there was an Arizona law 13-3611: Refusal or Neglect to Provide for a Spouse that read as follows:
A married person, having sufficient ability to provide for his or her spouse’s support or who is able to earn the means of such spouse’s support, who knowingly fails or refuses to provide the spouse with necessary food, clothing, shelter or medical attendance, unless by such spouse’s misconduct he or she was justified in so doing, is guilty of a class 1 misdemeanor.
The facts I gathered during my investigation matched the written law. Both parties were married, and the husband had sufficient ability to provide for his spouse and he knowingly refused to provide food and shelter. I had developed probable cause (facts and evidence leading to the conclusion that it was more likely than not that a crime had been committed). I didn’t arrest the husband that night, but I did write a full report and requested charges be filed against him in Mesa City Court for violating statute 13-3611.
The assigned city prosecutor reviewed my report but declined to prosecute, citing that the case had “no jury appeal” and there was “no likelihood of prosecution.” The reality is that a jury of reasonable citizens would not view this as a police matter, but as a family matter. Police officers are not scrutinized for their prosecution rates, but prosecutors are. Most prosecutors will not take a case to trial if they don’t believe they can win even if there is a clear violation of the law.
Even as a young police officer, I wasn’t naïve about the criminal justice system. I knew there was a good chance the city prosecutor wouldn’t take the case, but my job as a police officer wasn’t to decide which laws to enforce, it was to enforce the letter of the law. Police are the executors of the law, not the litigators.
A more current example of the letter of the law versus the prosecution of the law is the possession of marijuana. In the state of Arizona, statute 36-2852 allows a person twenty-one years or older to legally possess less than one ounce of marijuana. Under current federal law, however, marijuana is a Schedule I drug and is prohibited from possession. Under federal law, possession of marijuana is a Class A misdemeanor and is punishable by up to one year in jail and a $1,000 fine.
A state law that violates a federal law contradicts the Supremacy Clause, Article VI, of the U.S. Constitution. In essence, Arizona law directly contradicts the Constitution of the United States and federal law enforcement just overlooks the discrepancy.
In the criminal justice system, police officers are evaluated based on how many arrests they make, not on the successful prosecution or adjudication of those cases. Prosecutors, however, are evaluated on their wins and losses in court. For this reason, most prosecutors are only willing to charge cases they believe they can successfully try and win. Even cases with compelling evidence like DNA forensic evidence might be turned down for prosecution if the prosecutor believes there’s any factor that could reduce the likelihood of success in court.
.Grab your copy today…. On Call