Saturday, September 12, 2009


From Mike over at Crime and Federalism comes the two-part saga (here and here) of the almost-prosecution of Andrew Sullivan for possession of marijuana on federal property at Cape Cod.

On July 13, the ever-vigilant park ranger G. Felling, dressed in civvies and on daunting foot-patrol in the beach and dunes at the Cape Code National Seashore spied Sullivan smoking a joint. Felling approached Sullivan, learned that he had a second J in his wallet, and issued a
notice of violation. The notice required, in essence that Sullivan either pay a fine of $125 or show up in federal court on September 2.

You'd have paid the fine. I'd have paid the fine. Lots of people pay the fine. Others show up in court (mostly, I suspect, those who don't have $125) show up in court where they hope not to get hammered with the maximum penalty: a fine of $5,000, six months in the hoosegow, a $25 processing fee and a $10 special assessment.

In fact, on September 2, along with Sullivan, there were three other defendants in court on the same charge. But Sullivan wasn't there to contest the charge or hope to get the $125 reduced to something he could afford.
He was there (along with his attorney) because of this rather unlikely document filed August 26 by James F. Lang, Acting Deputy Chief of the Criminal Division of the office of the U.S. Attorney for the District of Massachusetts:
Pursuant to FRCP 48(a), the Acting United Slates Attorney for the District of Massachusetts, Michael K. Loucks. hereby dismisses the above-numbered violation, which was issued on July 13. 2009 and which charges the defendant Andrew M. Sullivan with possession of a controlled substance (marijuana) on federal property, in violation of 36 C.F.R. § 2.35(b)(2). In support of this dismissal, the government states that further prosecution of the violation would not be in the interests of justice.
Just how is it, you might wonder, that the interests of justice militate against prosecuting Sullivan for blowing a joint but not against fining or prosecuting those other people for doing the same thing? Magistrate Judge Robert Collings also wondered, and he was in a position to try and get some answers, so he ordered Sullivan and the Deputy Chief to appear before him. They told Collings that if Sullivan paid the $125, there would be some unspecified collateral consequence having to do with Sullivan's immigration status. (Sullivan is a British citizen.)

In response to further probing, neither the Deputy Chief nor Sullivan's counsel could offer any further explanation. The Deputy Chief said that the magistrate had no right even to ask.
Collings granted the dismissal. He really did have no choice. But he did it in this remarkable "Memorandum and Order on Government's Request for Leave to File a Dismissal of Violation Notice" which I'm quoting at some length (I'm omitting a footnote):
In the Court’s view, in seeking leave to dismiss the charge against Mr. Sullivan, the United States Attorney is not being faithful to a cardinal principle of our legal system, i.e., that all persons stand equal before the law and are to be treated equally in a Court of justice once judicial processes are invoked. It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances.

If there were a legitimate reason for the disparate treatment, the Court would view the matter differently. But the United States Attorney refused to allow the Court to inquire into why, in the circumstances of this case where Mr. Sullivan had already been charged with the crime, either a forfeiture of collateral or an adjudication would make a difference in the immigration application.

But there is more. If, in fact, a determination that Mr. Sullivan had possessed marijuana is a factor which, under immigration law, the immigration authorities are legally charged with taking into account when deciding Mr. Sullivan’s application, why should the United States Attorney make a judgment that, despite the immigration law, the charge should be dismissed because it would “adversely affect” his application? If other applicants for a certain immigration status have had their applications “adversely affected” by a conviction or a forfeiture of collateral for possession of marijuana, then why should Mr. Sullivan, who is in the same position, not have to deal with the same consequences?

In short, the Court sees no legitimate reason why Mr. Sullivan should be treated differently, or why the Violation Notice issued to him should be dismissed. The only reasons given for the dismissal flout the bedrock principle of our legal system that all persons stand equal before the law.
And you know, he's exactly right.

On a bronze plaque inside the Statue of Liberty there's the text of "The New Colossus," the poem read at the monument's dedication. These are the famous words:
. . . . Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me . . . .
It says, in Washington, on the facade of the Supreme Court building.
After the civil war, that principle was enshrined in the Fourteenth Amendment as a promise that we will not discriminate.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It's about those folks Emma Lazarus invited to our shores. Those who don't get the breaks and desperately need them. Those we're supposed to welcome.

And yet, and yet.
So we protect the white guys, and the guys who can afford dream team counsel, and the Andrew Sullivans. Others we throw to the dogs because, after all,
[t]he law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets and to steal bread.
Except that, in the last analysis, the law is willing to forgive the rich who do those things.
The sign on Animal Farm was changed, you'll recall, to "All animals are equal, but some are more equal than others." Power corrupts, they say. They're right.

1 comment:

  1. Immigration LawyerOctober 27, 2009 at 7:24 PM

    Just came across your post and the story about Sullivan. The INA is incredibly harsh with regard to controlled substance violations and, having had far too many clients either removed or denied residency due to minor drug convictions, it shocks me to see how cavilier the US Attorney was in this case. Quite frankly, I've seen far too many "whites" be deported to believe it is based on race but do believe that Sullivan's position was the basis for this decision.
    Nice post and thanks for letting me comment