We Promise to Leave You Alone 

Frankly I find this post by Orin Kerr over at the Volokh Conspiracy shocking... and frightening:

The idea of the federal government going after very ill people who are growing marijuana for medical purposes strikes many (including me) as an obvious misuse of power, if not an outrageous one. But the reality is that prosecutions, while not nonexistent, are rare. Giving the feds the power to bring cases doesn't mean that they actually will, and history suggests that they usually don't. As a result, Raich doesn't mean the difference between a world with home-grown medical marijuana for the very ill and a world without it. Rather, it means a world in which home-grown medical marijuana is advertised and public versus a world in which the practice is more quiet and the feds mostly look the other way.

This from someone who's profession is the law... who is supposedly supposed to respect the rule of law. He's saying that it's ok that the Supreme Court ruled that way because people can still disobey the federal law and they won't get caught. They'll have to fear prosecution every day of their lives, and some my opt not to use a medical treatment that can save them pain and suffering because they'll fear going to jail, but that's ok. We have the governments promise not to go after those people.

I'm sorry, but I don't accept that as a solution. Why not? Because it is at the whim and discretion of someone else. What if a new federal prosecutor comes into the area and decides to get tougher on this law? His discretion. His choice. The law supports him, and now people go to jail. I don't support any law that makes people into criminals who shouldn't be, and are merely free because of "prosecutorial discretion". Anyone who makes law their career shouldn't either. If you don't intend someone to go to jail for doing something, make sure the law actually makes that crystal clear.

Update: Orin has since back tracked a little saying that he doesn't like the concept of prosecutorial discretion either... but that it's just a reality, and that in fact the sky isn't falling because of this ruling. <sarcasm>He says something about pragmatism too. Doesn't he know that blogging has nothing to do with pragmatism? Sheesh... you're supposed to talk about what things are supposed to be like in your ideal world!</sarcasm>