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.
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