by Jacob Sullum
Gawker, citing a report on the blog of Massachusetts Lawyer's Weekly, notes that blogger/journalist Andrew Sullivan was cited for pot possession in July at the the Cape Cod National Seashore. The U.S. Attorney's Office later sought to drop the charge, arousing objections from a judge who suspected Sullivan was receiving special treatment. At a hearing last week, U.S. Magistrate Judge Robert B. Collings noted that people caught with pot at the Cape Cod National Seashore are "routinely" prosecuted. When he asked why an exception was being made in this case, Assistant U.S. Attorney James Lang said his office did not want to adversely affect Sullivan's application for "a certain immigration status" (possibly a visa renewal; Sullivan is a British citizen). Dissastisfied by this explanation, Collings worried in a memorandum (PDF) issued yesterday that:
"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." He said "it is quite clear that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances."
Collings nevertheless granted the prosecution's request to dismiss the charge against Sullivan, saying he felt constrained to do so by his limited discretion in such decisions.
Sullivan is an outspoken critic of the war on drugs, so he can hardly be accused of hypocrisy for smoking pot or seeking to avoid punishment for it. At the same time, Collings' concerns about unequal treatment, whether or not they are justified in this particular case, are valid in general, especially in drug cases. Because there is no victim demanding justice, it is much easier to make such cases disappear, and it is inevitable that well-connected people who can afford good lawyers (such as politicians' children) will have more success at avoiding charges, or minimizing penalties, than the average Joe Pothead. This kind of inequality is not unique to drug cases, but the victimless nature of the "crime" makes it more likely. With 873,000 or so marijuana arrests each year, nine out of 10 for simple possession, there's plenty of opportunity for favoritism.
Another point illustrated by this case is that the collateral penalties associated with pot busts—which can include suspension of driver's licenses, loss of student aid, disqualification from various professions, and bars on adoption, voting, and jury service—are often the most serious outcome. Evidently the idea that Sullivan might not be allowed to live in this country anymore because he was caught with a little dried plant matter struck the U.S. Attorney's Office as so manifestly unjust that it decided to drop the case.
Notably, Massachusetts, where Sullivan was busted, recently decriminalized possession of up to an ounce of marijuana, making it a civil offense subject to a $100 fine (plus confiscation of the pot) and eliminating all collateral sanctions. But because Sullivan happened to be on federal property, his marijuana possession was a Class B misdemeanor punishable by up to six months in jail and a $5,000 fine.