How much of law enforcement is discretionary? When I look at the Cannabis situation in the US, I find that Cannabis is still a Schedule 1 drug under federal law. However, such a law is not enforced. So I wonder, how much of law enforcement is discretionary? On the other hand, the IRS of the US is notorious around the world for heavy handed enforcement of US federal tax laws. I see so many complaints online by US expats, as well as domestic US tax persons, of how onerous and punitive US tax enforcement is, relative to other countries. So when I see comments like &quot;Congress writes the law, IRS merely enforces the law. So blame congress, do not blame the IRS&quot; I know that this is not true. Case in point would be the enforcement of Cannabis laws. So what causes the heavy handed enforcement of US tax laws, but near-total non-enforcement of Cannabis as a Schedule 1 Federal drug? Can someone sue the DEA for refusing to enfore Cannabis laws? Similarly, can someone sue the IRS for heavy handed enforcement of tax laws?
So what causes the heavy handed enforcement of US tax laws, but near-total non-enforcement of Cannabis as a Schedule 1 Federal drug? Tax Enforcement In The U.S. Is Not Particularly Heavy Handed First of all, enforcement of U.S. tax laws is not, contrary to your perception, heavy handed. In fact, tax law non-enforcement is one of the most well quantified circumstances in which there are good estimates of how often tax laws aren't enforced. For example, as of 2001, the federal income tax tax gap (i.e. the difference between taxes paid and taxes owed) was summarized as follows: About 44% of [the tax gap] ($148 billion a year) comes from income and self-employment taxes owed by closely held businesses. About 16% comes from understated non-business income (disproportionately from investment income not subject to information return requirements such as capital gains and rental income), and about 9% comes from overstated deductions, exemptions and credits. About 33% comes from other sources (mostly underreporting of corporate income taxes and employment taxes). Non-compliance rates vary greatly by type of income. About 1.2% of potential wage and salary tax revenue are not collected. About 4.5% of potential dividend, interest, pension and taxable Social Security income tax revenue are not collected. About 8.6% of potential tax revenue alimony, partnerships, S-corporations, capital gains, and overstated deductions and exemptions are not collected. And, about 53.9% of potential tax revenues from farms, rents and royalties, and sole proprietorships are not collected. The biggest factor in tax law compliance is the degree to which income appears on information returns. Taxpayers whose income isn't reported by third parties are much more likely to cheat. More than a third of returns with capital gains incorrectly report that amount of the gain. Independent contractors omit on average 17% of income not subject to information returns, but just 3% of income subject to information returns. The I.R.S. is not funded at at level that maximizes compliance. It estimates that for every additional dollar spent on enforcement, it could collect about $14 of additional tax revenues. (Source: Senate Finance Committee testimony in 2005 summarized here) Since 2001 the amount of enforcement done by the IRS has significantly declined due to reduced IRS funding. According to the U.S. Treasury Department (which includes the IRS), in 2019, the tax gap was as follows: Today, the “tax gap”—the difference between taxes that are owed and collected—totals around $600 billion annually and will mean approximately $7 trillion of lost tax revenue over the next decade. The sheer magnitude of lost revenue is striking: it is equal to 3 percent of GDP[.] While there are countries with low tax compliance (e.g. Greece and Italy) those countries have serious public finance problems as a result, and internationally, U.S. tax law enforcement is weak. See, e.g. here (quantifying tax gaps in E.U. countries and in the chart below from this source): (The U.S. estimate of 3% of GDP is not a fair comparison to these figures which include all taxes in a country, not just federal income taxes as in the U.S. figure). U.S. expats are, in part, unhappy, because U.S. citizens are taxed as a matter of substantive U.S. tax law on foreign income that many other countries do not tax their citizens upon. But, expat tax enforcement in the U.S. is hardly comprehensive and is generally speaking, less vigorous and less consistent than tax enforcement in domestic cases. Cannabis Law Enforcement In The U.S. The shorter story of cannabis law enforcement is that historically, most enforcement of marijuana laws has been by state and local governments, since federal, state and local governments had parallel and similar laws on the subject. Some localities and states deprioritized enforcement or legalized it under state or local law. The federal government did not want to spend the money to replace the state and local enforcement that ceased to be present. Several U.S. attorneys (the federal DA for a U.S. District Court District) decided to allow the state legalization experiment to proceed and to not be arbitrary in making cannabis prosecutions. When they did this they issued statements stating that they would not enforce federal cannabis laws in places where it was legalized where the violators were in compliance with state and local law and where the additional conditions imposed by federal prosecutors were met. This also reflected the fact that with state legalization, the risk of jury nullification in federal prosecutions for marijuana offenses that were legal under state law became much greater reducing the value of attempting such prosecutions. This was later rescinded (at least at the national level) but was replaced by Congressional language in appropriations bills deprioritizing such criminal enforcement and not authorizing federal funds to be spent for this purpose. CBD and hemp (which are cannabis products that are not psychoactive) have effectively been legalized nationally, although THC has not and is only tolerated at the federal level where states have legalized it. Is Prosecutorial Discretion Subject To Judicial Review? Can someone sue the DEA for refusing to enforce Cannabis laws? No. Another answer correctly cites the U.S. Supreme Court case of Town of Castle Rock vs. Gonzales as the basis for this realty. In some cases, however, individuals can bring a private cause of action against a cannabis law violator under RICO (the Racketeering And Corrupt Organizations Act) if they can show particularized damages to them from this activity. Similarly, can someone sue the IRS for heavy handed enforcement of tax laws? No. The IRS has to prove that taxes are owed, in every cases where the taxpayer contests the liability, in either tax court (prior to payment of the tax) or in U.S. District Court (after payment of the tax in a refund lawsuit). But, there is no private cause of action related to the level of enforcement of meritorious cases that the IRS can bring. That is a political decision for the Secretary of the Treasury, the President, and Congress in funding the IRS. Claims that equal protection of the laws are violated under the 14th Amendment with discriminatory enforcement choices of prosecutors and law enforcement are almost completely (although not quite entirely) barred. Certainly, such suits are not permitted in the context the question raises.
Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide).
California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion.
england-and-wales Usually, and assuming the smoker is aged 18 or over and there are no aggravating features, an arrest is not always necessary as what's referred to as &quot;simple possession&quot; is dealt with proportionately either by a: Cannabis Warning Which is: a non-statutory disposal. It can be used as a proportionate response to dealing with offenders found in possession of small amounts of cannabis. It is an informal warning, administered by a police officer, to adults found in possession of small amounts of Cannabis, consistent with personal use. ... First offence, no aggravating factors - Cannabis Warning; Second offence, no aggravating factors – PND (see below); Third offence – arrest. Or, a: Penalty Notices for Disorder (PND): You’ll be asked to sign the penalty notice ticket. You won’t get a criminal conviction if you pay the penalty (usually £60, but may be £90) You can ask for a trial if you disagree with the penalty notice. You’ll get a bigger fine if you don’t ask for a trial but don’t pay the fine.
This is called a qui tam action. It's a concept that's been around a long time in the English legal system (predating the US), to encourage people to help the government enforce its laws. The more contemporary system is to give private parties the right to sue on their own behalf for some wrong (known as a "private attorney general" system), which is how things like civil rights claims tend to work; the difference with qui tam is that the government is the plaintiff (source) It's possible when the law says that a claim under some section may be filed by a private person on behalf of the government; at the time the article was written, the false marking statute (35 USC 292) stated that "Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States." In a qui tam action, the government is the plaintiff; it's just that instead of a public attorney handling the case, it's handled by a private party. There were three active qui tam statutes in US federal law as of 2009 (source: CRS): the False Claims Act (31 USC 3730), the patent marking claim, and an Indian protection statute (25 USC 201). The patent marking qui tam provision has been repealed, leaving just the two. For the Indian protection statute, I can't find any reference to any special procedure; for the False Claims Act, there is a special procedure included in the law. In the False Claims Act, when an action is submitted, the government is notified and the complaint kept sealed for 60 days while the US government decides what to do. If the government wants to take over the case itself, it can do that; if it wants the private party to run the case, it can do that too; if it wants to dismiss or settle the case it can do that as well. It can also ask for the time to be extended, or for discovery to be delayed to gather evidence or prosecute a separate criminal or civil case. If the government lets the private party run the case, they can still intervene later if they have a good reason. After the case finishes, the private party gets 15-25% of the judgment or settlement (if the government took over the case) or 25-30% (if the private party ran the case), plus attorney fees. If the facts the case was brought under were publicly known when it was filed, the amount shrinks to 0-10% if the person supplied information to the government that wasn't publicly known when it was supplied, and the case is dismissed if the person just learned about it from public sources. For the false marking statute, a district court actually found it unconstitutional in part because of the lack of the extensive procedure found in the False Claims Act. There, the procedure was just to file the case like normal; the clerk had to tell the Patent Office that a claim had been filed within a month, but one issue was that a settlement could have happened in that time and bound the government. It's possible higher courts would have ruled had that section not been repealed later that year. As for other countries, the idea came to the US from England, but the Common Informers Act 1951 eliminated it there. However, private prosecutions (which do exist in England) are similar in that the case is on behalf of the Crown, but handled by a private party; they're different in that the private party doesn't get any part of the judgment. While it's hard to prove a negative, I can't find any evidence of qui tam provisions outside the US.
It is illegal to break into the house even if you don't steal anything. It is illegal to steal the drugs even though the owner of the drugs possessed them unlawfully. So that's at least two crimes. On top of that, the thief will be committing the crime of illegal possession of a controlled substance after the theft.
In the US, "insider trading" includes both legal and illegal versions. When a corporate employee buys or sells shares of their company, they are insiders and they are trading (there is a requirement to report to the government). The illegal version involves breach of fiduciary duty or confidence. The relevant section of the federal regulations is 17 CFR 240.10b on "Manipulative and Deceptive Devices and Contrivances", and you will note that the section does not rely on the term "insider" in the law part, instead it directly characterizes what acts are illegal. Thus it would not matter, from a legal perspective, if someone considers you an insider. It is illegal to trade in securities using a “manipulative, deceptive, or other fraudulent device or contrivance”. This relates to what is commonly known as insider trading via rule 240.10b5-1, by defining as manipulative and deceptive trading on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information (emphasis added to focus on the core requirements). Whether or not you have a "duty of trust or confidence" is determined by common law standards, that is, it depends on how courts have ruled on similar matters. For instance if the CEO of Apple tells you "Our computers explode and it's gonna be on the news tonight, the stock is gonna tank, but it would be illegal for you to act on that information", then it would be illegal, because you are aware that the CEO has a duty to not use that information (thus you "inherit" the duty). This also holds if he doesn't tell you that acting on the information, since it is expected that you know that the CEO of Apple could not legally act on that information (even if in fact you are unaware of the law -- ignorance of the law doesn't get you anywhere good). However, if you are unaware and could not know that the person making the factual disclosure is divulging information that he has a duty to shut up about, then you might not get prosecuted.
A prosecutor's discretion is almost unassailable. The main reason for this is to prevent prosecutors from having to defend in a legal forum every single decision made. In a civil matter, prosecutors have absolute immunity form being personally sued for their actions (again, to prevent a prosecutor from being sued from every single defendant). https://en.wikipedia.org/wiki/Prosecutorial_immunity Misconduct by prosecutors may be resolved by reversal or retrials of court proceedings. But this is not something that really has criminal penalties. https://en.wikipedia.org/wiki/Prosecutorial_misconduct#:~:text=In%20jurisprudence%2C%20prosecutorial%20misconduct%20is,is%20similar%20to%20selective%20prosecution. Occasionally, a prosecutor may be subject to discipline from the state's Bar. This is rare, and is not much of a deterrent. https://publicintegrity.org/politics/state-politics/harmful-error/misconduct-and-punishment/ Theoretically, a prosecutor who out and out breaks the law can be prosecuted. Examples seem to be rare, and are more about government malfeasance (expense reports, misuse of government equipment, etc.). Due to the above standards, proving criminal conduct around prosecutorial discretion will be extremely difficult, as will finding a fellow prosecutor willing to even go down that road. It is in no prosecutor's interest to set the precedent of prosecutors being jailed for their behavior. So, why has nothing happened? Because in general, prosecutors can get away with almost anything. And I will add, Because America seems to like it this way.