Judge Says Blogger Andrew Sullivan Got Preferential Treatment in Pot Case

A federal judge criticizes the U.S. Attorney's office for not pursuing a pot possession charge against blogger Andrew Sullivan. Sullivan is a British citizen, and the prosecutors didn't want Sully to face immigration consequences.

Sully, who owns a house on Cape Cod, was caught smoking a joint on a federally owned beach, a petty offense under 36 C.F.R. § 2.35(b)(2), which prohibits possession of a controlled substance on National Park Service lands. He was issued a violation notice. The maximum penalty for the offense is a fine of $5,000, six months imprisonment, a $25 processing fee and a $10 special assessment.

Sully, like everyone charged with the offense in MA, had the option of posting $125.00 in collateral and consenting to its forfeiture in lieu of appearing in court. [More...]

He had until Sept. 2 to decide. The week before, the AUSA moved to dismiss the violation, stating in its motion that "further prosecution of the violation would not be in the interest of justice.”.

Three other defendants charged with the same offense had to appear before Collings the same day as Sullivan, the judge noted. But Sullivan’s case was the only one prosecutors did not pursue, out of concern that the $125 fine carried by the relatively minor offense could derail his US immigration application.

“It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances,’’ Collings wrote in the 11-page memorandum, adding that prosecutors’ rationale for the dismissal was inadequate.

My view: It's ridiculous that this charge could have further consequences for anyone. Dismissing it was an appropriate exercise of prosecutorial discretion. As this lawyer says:

Jeanne M. Kempthorne, a Salem defense lawyer and former longtime federal prosecutor, said it was “perfectly legitimate’’ for prosecutors to weigh the potential impact of Sullivan’s case on his immigration status.

“Am I offended by the notion that prosecutors take into account collateral circumstances? No,’’ she said. “They should be doing that. That’s humane.’’

However, the dismissal policy should not just be applied to Sully, but to everyone, or at least all non-citizens caught smoking a joint on federal property in that jurisdiction in the future. That would make it fair.

As the Court noted in its opinion (pdf)criticizing the dismissal:

[T]he Court would not be concerned with any exercise of discretion by the United States Attorney not to prosecute the possession of small amounts of marijuana. The United States Attorney certainly has discretion to determine how best to allocate the resources of his office and could, if he deemed it appropriate, elect to focus those resources on more serious crimes while declining to prosecute the type of violation which Mr. Sullivan faces.

However,from all that appears, the United States Attorney has not taken the position that persons who possess marijuana on federal property will not be prosecuted; rather, those persons are prosecuted routinely.

The court also noted:

[The AUSA] asserted, quite correctly, that the United States Attorney has broad discretion as to when to dismiss a criminal charge and that the power of the Court in these circumstances is limited and able to be exercised only in special circumstances.

So rather than begrudge Sully, let's make something positive out of this: The U.S. Attorney's Office in MA should immediately declare that it will no longer prosecute marijuana petty offenses brought under that statute.

Sully told the cop who busted him he thought it was legal to smoke pot in MA:

Massachusetts voters approved a referendum in November that decriminalized small amounts of marijuana, but the change does not apply to federal property.

I'm pretty sure there are public state (rather than federally owned) beaches on Cape Cod. Had Sully gone to one of those, he wouldn't have faced a violation notice. Let that be a warning to others, stay away from federal beaches.

I also wonder if there was a prominently displayed sign posted on the beach that said "Federal Beach" or "You are now entering a National Park Service Land." If not, considering MA is a state which decriminalized personal use of marijuana, I don't think anyone has adequate notice that such conduct is prohibited.

Bottom line: I support the decision to drop the charges against Sully. I also hope the U.S. Attorney's office enacts a policy in the future declining to prosecute any such cases, or at a minimum, those involving non-citizens.

< Blagojevich Co-Defendant Dies, Was Scheduled to Surrender Next Week | State Sen. Monserrate Trial Begins Monday >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Special treatment is special treatment. (5.00 / 1) (#4)
    by oldpro on Sat Sep 12, 2009 at 11:55:40 PM EST
    Of course Sully IS special so it all makes sense...

    The strongest indicator (none / 0) (#28)
    by Peter G on Sun Sep 13, 2009 at 10:51:34 PM EST
    of special treatment, to my mind, is that the official reason given appears to be bull.  Unless I am much mistaken (please correct me, if someone knows better), a single conviction for simple possession of under 30 grams (i.e., an ounce) of marijuana does not stand in the way of becoming a U.S. citizen by naturalization. So, unless Sullivan has a prior conviction for pot possession, or has plans to incur another, taking the hit on this by forfeiting the $125 collateral would not impair his quest for citizenship.

    I don't think he is applying for citizenship (none / 0) (#29)
    by Jeralyn on Mon Sep 14, 2009 at 01:06:33 AM EST
    he was applying for a special kind of visa, and immigration lawyers told his attorney the pot possession conviction would be taken into consideration in determining whether to grant the visa.

    Does the U.S. Attorney's Office (none / 0) (#30)
    by Peter G on Mon Sep 14, 2009 at 09:26:51 AM EST
    in D.Mass. dismiss possession charges against U.S. college students who are receiving financial aid, on the basis that their eligibility might be affected by a drug conviction? Or registered nurses (to take another example) whose licenses might be questioned for a drug conviction? Which collateral consequences are deemed too unfair under this policy, and is the policy uniformly applied? Can a person without a lawyer find out about the policy and take advantage of it?

    I stand corrected (none / 0) (#31)
    by Peter G on Mon Sep 14, 2009 at 09:49:33 AM EST
    Here's the lowdown from my friend the immigration attorney (and former Asst Federal Public Defender): "Even small amt of marijuana can be an immig problem. If it less than 30 grams for personal use, then no removal (deportation) is permitted on this ground. However, if the person travels out of the USA, or is applying for a lawful perm res status (green card) then the standard flips - even less than 30 grams will bar the application (the article mentions an application to immigration - I am assuming for LPR status).  Sometimes this is a waiveable bar. If the alien already has LPR or US citizen spouse, parent or child who would suffer extreme hardship, then the less than 30 grams of marijuana will be forgiven. If he has no qualifying relatives, he cannot get a waiver and the marijuana conviction is a complete bar. Any drug conviction other than that is a
    complete bar to admission and is a ground of removal. Wonderful and enlightened laws, yes?"

    I am also reminded of the John Lennon case, which occurred when our immigration laws were different in some ways, so it doesn't afford a direct precedent.


    Can we get a twofer (5.00 / 1) (#5)
    by Cream City on Sat Sep 12, 2009 at 11:55:51 PM EST
    and send Christopher Hitchens back to the Brits, too?

    There are so many lovely people from foreign lands, and we get these guys who mock our party principles and trash our process.  

    Wait a minute, I think I just figured out why they had to come here.  The Brits don't want 'em, either.

    Hitchens did become citizen (none / 0) (#13)
    by gyrfalcon on Sun Sep 13, 2009 at 07:46:51 AM EST
    a year or so ago-- alas.

    I have to agree with the Judge. (5.00 / 1) (#10)
    by Gerald USN Ret on Sun Sep 13, 2009 at 12:36:22 AM EST
    Now if Sullivan is willing to "snitch" on his dealer, and work with law enforcement to prevent these kinds of nefarious infractions on Federal lands, I imagine the judge would consider that to be an O.K. type deal, and after commending him for his work, say "go forth and sin no more!"

    Otherwise, I have got to go along with the old adage, "you do the crime, you do the time."

    Note this is all aside from the question whether there should have been a crime in the first case.  That is a separate though important question.

    He Should'Nt Be Prosecuted for Marijuana Posession (none / 0) (#22)
    by msaroff on Sun Sep 13, 2009 at 11:34:54 AM EST
    On the other hand, Andrew Sullivan's endorsement of the racist pseudoscience of the Bell Curve, and his publication of the lies of Betsy McCaughey while editor-in-chief of The New Republic should be grounds for deportation from the United States on moral grounds.

    Our drug laws are screwed up (5.00 / 6) (#16)
    by jimakaPPJ on Sun Sep 13, 2009 at 08:15:04 AM EST
    but enforcing them unequally is wrong. And they aren't going to get changed until the rich, the powerful, and the well connected suffer the same consquences as a black teenager doing drugs.


    I'm the judge, I say (5.00 / 2) (#19)
    by scribe on Sun Sep 13, 2009 at 09:31:37 AM EST
    "OK, AUSA, you don't want to go forward with the case against Sullivan, that's fine with me.  As to the other three (or however many) defendants similarly charged, they get their cases dismissed, too.  Equal justice for all."

    That would end the preferential treatment one way - they stop charging the offense - or ther other - they refuse to dismiss anyone's.

    What the Judge Could (and Should) have Done (5.00 / 1) (#20)
    by kaleidescope on Sun Sep 13, 2009 at 10:27:47 AM EST
    Dismiss the charges against the other pot defendants.

    Ummm (none / 0) (#2)
    by jarober on Sat Sep 12, 2009 at 11:41:51 PM EST
    Either prosecute Sullivan, or don't prosecute anyone (for this particular offense).  In the meantime, it should be interesting to see how often Sullivan disagrees with the administration about anything.

    Speaking from the Land of 4-20 (none / 0) (#21)
    by kaleidescope on Sun Sep 13, 2009 at 10:38:25 AM EST
    I agree with Jeralyn that it is perfectly proper for the prosecutor to take account of the undue consequences to Sullivan's immigration status.  

    I would be all up in arms if the AUSA dismissed Sullivan's case and went forward on similar charges against some Guatemalan roofer.  But in this case, presumably the only consequence the other defendants faced was forfeiting their $125.  

    I'm sure Mr. Sullivan would've been happy to forfeit $125 if that were his only consequence.


    Far be it for me to defend Sully (none / 0) (#3)
    by andgarden on Sat Sep 12, 2009 at 11:43:18 PM EST
    but the collateral scandal is that he can't become a citizen.

    A bad policy applied to a bad person (none / 0) (#9)
    by andgarden on Sun Sep 13, 2009 at 12:22:49 AM EST
    doesn't make me like the policy more.

    Wouldn't have occurrred to me (none / 0) (#14)
    by gyrfalcon on Sun Sep 13, 2009 at 07:50:16 AM EST
    that a state law of that sort wouldn't apply on a federal beach.  Maybe they should add that note to the signage.

    Supremacy Clause (none / 0) (#26)
    by Peter G on Sun Sep 13, 2009 at 10:45:34 PM EST
    U.S. Const., article VI, clause 2:  "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the ... Laws of any State to the Contrary notwithstanding."  Same basic reason the DEA can raid medical marijuana dispensaries in California.

    As it should be IMO (none / 0) (#27)
    by andgarden on Sun Sep 13, 2009 at 10:50:49 PM EST
    Of course, I also think that our patchwork of laws is insane.

    Special treatment for Sully (none / 0) (#24)
    by Abdul Abulbul Amir on Sun Sep 13, 2009 at 04:07:02 PM EST
    Three other defendants charged with the same offense had to appear before Collings the same day as Sullivan, the judge noted.

    There is only one question here.  Why did the DOJ decide to give special treatment to a prominent and almost slavish supporter of Obama?  Maybe that question answers itself.  Apparently this law like the tax laws are only for the little people.

    A non-politicized DOJ was Obama's promise.  Haha.

    subordinate (none / 0) (#33)
    by Abdul Abulbul Amir on Mon Sep 14, 2009 at 06:55:38 PM EST

    What pray tell could cause this subordinate to make what you characterize as a "missstep?"  Lets see, he did it on his own and put his career at risk.  Or more likely he got a call from above.  

    he question as to why Sully got special treatment remains unanswered.  No doubt the investigative reporters at MSNBC and NPR will be on it like white on rice.  Fat chance.


    We have evidence (none / 0) (#35)
    by Abdul Abulbul Amir on Tue Sep 15, 2009 at 09:16:57 AM EST

    1. Sully got special treatment even in face of opposition by the magistrate.

    2. We have evidence that there has been no public rebuke, or firing by his superiors to put others on notice that this kind of special treatment for Obama lickspittles is not to be repeated.   Typical Chicago politics.

    3. We have the evidence of human self preservation.  Clearly the lawyer in question either knew or assumed that the in the culture of the Obama DOJ he would not be out of a job because of his actions.  The alternative is to believe that he took a big chance against department culture and practice and put his job and and perhaps future political career on the line because he thought Sully was such a swell guy.