This article was originally written for and posted on StoptheDrugWar.org

If one had to identify two areas of jurisprudence where Constitution often doesn’t seem to apply, the first one would probably be anything related to controlled substances. And, the second? Immigration Law.

For example, children who are brought here by their parents, illegally, across the border, cannot adjust their status to that of a legal one, even if they finished school and college here, are married to U.S. citizens and have U.S. citizen children. Same goes for persons who might have committed a crime in the past, if the government believes they committed an aggravated felony – and, for the purposes of immigration law, even some misdemeanors can be considered aggravated felonies. Illegal immigrants who get detained by Immigration and Customs Enforcement are often moved across the country to various detention facilities (New York detainees are often moved to Texas, for example), which makes their defense and the proper adjudication of their cases very difficult. Many of those facilities are no better than jails; in fact, some of them are jails, rented by the federal government from the States. The procedural due process for immigration detainees gets written entirely by the federal authorities; the Courts accept that immigrants’ rights are severely limited compared to those of U.S. citizens.

Predictably, when these two areas overlap, the results are often shockingly egregious. Roughly put, pretty much every drug offense is sufficient to permanently bar getting a green card or obtaining U.S. citizenship. (I have to mention, though, that there is a narrow exception to the rule: if it’s just an offense of simple possession of 30 grams or less of marijuana, one could ask the government to make an exception and let him or her off the hook.)

Below, I try to summarize the current immigration law, as it pertains to people with drug convictions:

• Any controlled substance conviction is a ground for deportation. (That also applies to green card holders. Many people don’t realize that green card holders can, and often are, easily deported for many crimes, which, under state law, often carry no jail time whatsoever.)
• A conviction or an admitted commission of a controlled substance offense would pretty much bar a person from obtaining a green card, ever. Same goes for when the government has reason to believe an individual is a drug trafficker. In that case, a conviction isn’t even necessary.
• A conviction or an admission of a controlled substance offense makes a person ineligible for citizenship for 5 years.
• Now, if it’s an aggravated felony conviction, then a person is permanently ineligible for citizenship. Since, (remember?) the list of offenses that the government considers aggravated felonies is very expansive, most drug offenses would fall under the category. An example would be any sale or an intent to sale offense or simple possession of more than 5 grams of crack. So, many people who had ever committed a drug offense in the past are permanently unable to obtain U.S. citizenship, no matter how long they had been living here.
• As I mentioned above, these people, in addition to being unable to obtain their citizenship, would also face deportation – and, if the government considers their offense to be an aggravated felony, they could also face prison time, would never be able to enter the U.S. again and would have to remain in detention for the duration of their deportation proceedings, which often takes many months.
• Furthermore, an aggravated felony would make a person ineligible for asylum; if the offense involves drug trafficking, that person would not be able to ask for relief even if there is a good chance that he or she would be killed or tortured in his home country, once deported.

So, if you are not a U.S. citizen and have been arrested for a controlled substance offense, please remember to consult an immigration lawyer in addition to the criminal defender. Our plea bargaining system often allows an easy way out by pleading to a lesser charge, something that often doesn’t carry any prison time – that tactic won’t work for those who are not U.S. citizens. I have been practicing immigration law for a while and I see many people who come to us (or call us from detention) looking for help, only to find that there is not much that can be done for them under the current legal framework. One should take great pains not to end up at the intersection of the Drug War and our clunky immigration system.

The most noteworthy development of 2007, as far as drug policy goes, is the substantive approach to the issues of (some of) the Supreme Court Justices in their opinions. In Kimbrough v. United States (2007), Justice Ginsburg continued to ponder the old issue of the degree of applicability of the Sentencing Commission’s guidelines to courts’ sentencing procedures; however, she was also willing to talk about the actual reasons behind the sentencing revisions:

Although the [Sentencing] Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. In a series of reports, the Commission identified three problems with the crack/powder disparity.

First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.”, see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstates” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence . . . than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96.

Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. […]

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

Previously, the Justices largely avoided discussing the “real-word” ramifications of the legislative approaches to tackling drug use and trafficking. It seems like some of them are actually willing to address the actual issues in drug policy. It comes as a welcome break from the usual formalistic approach that tended to characterize some of the Court’s previous decisions involving drugs.

Originally written on March 26, 2008

I already wrote about U.S. Sentencing Commission’s recommendation to reduce the disparity between cocaine powder and crack-cocaine minimum sentencing schemas. The Commission recommends lighter minimum sentences for crack – since, under the current statute, trafficking in crack-cocaine will result in substantially greater minimum sentence than trafficking in the equivalent amount of coke powder. The idea is that the offenders will now be punished equally for trafficking in equal amounts of the same substance.

Douglas A. Berman, a professor of law at the Ohio State University, thinks that it is an important development, legally speaking. Alex Coolman of the Drug Law Blog has a less legalese, albeit a more common-sense approach to the issue, pointing out that the proposed changes would have a virtually cosmetic impact on “roughly 70% of crack sentences will be reduced, on average, from just over 10 years to just under 9 years” (He actually got the numbers from a Professor Berman blog post).

Obviously, there are many ways to look at this development. My brain here is with Professor Berman, while my heart sides with Alex Coolman. The problem here is not disparate sentences meted out to crack and coke powder dealers, but the harsh excessiveness of the punitive solution itself. The Sentencing Commission has to operate within the framework of the punitive model supplied to us by Congress. Obviously, as Alex mentions in plain-speak, striving for equitable results in a system the facets of which are grossly inequitable to begin with won’t result in a profound change for the better. But, I suppose, a sensible thing at the moment would be abandoning a quest for fairer across-the-board general paradigms and working to make the existing system fairer one positive step at a time. Think about it: the Sentencing Commission could have eliminated the sentencing disparity by raising the penalties for cocaine powder trafficking, instead of lowering the penalties for crack.

Originally written on May 18, 2007

Since 1986, a defendant convicted in federal court of trafficking in crack would get the same five-year minimum sentence as a defendant trafficking in cocaine powder. The only difference is that a defendant trafficking in cocaine powder would need 500 grams of it to warrant the minimum five-year prison sentence, while the other defendant would only need 5 grams of crack to get the same sentence. Crack is mainly used by inner-city poor; due to its higher cost, cocaine powder has, until recently, been a drug prevalently used by the rich(er) members of society. Both are essentially the same drug. It doesn’t take a sharp mind to realize the social effect of the disparity in sentencing guidelines.

But, finally, something is being done about it:

“The U.S. Sentencing Commission voted to lower the recommended sentencing range for those caught with 5 grams or more of crack cocaine from 63 months to 78 months to a range of 51 months to 63 months. Those with at least 50 grams should serve 97 months to 121 months in prison, not 121 months to 151 months, as the guidelines now say, the commission said late Friday. ”

COMMISSION RECOMMENDS LIGHTER MINIMUM SENTENCE FOR CRACK COCAINE CONVICTION

Unfortunately, it seems that the Commission’s recommendations might not carry as much weight as it might seem from the article:

“This is the fourth time the commission, an independent agency in the judicial branch, has recommended that Congress narrow the sentencing gap. Previous recommendations, which were not adopted, have included raising the penalties for powder cocaine and lowering them for crack.”

Quoted from the article above

Turning to our nation’s highest court would confirm how toothless the Commission’s recommendations can be. In Neal v. United States (1996), Justice Kennedy writes:

“Once the Court has determined a statute’s meaning, it adheres to its ruling under stare decisis and assesses an agency’s later interpretation of the statute against that settled law. It is the responsibility of Congress, not this Court, to change statutes that are thought to be unwise or unfair.”

So, the ball is squarely in Congress’ court (no pun intended, I suppose). I wonder how many Congressmen would vote for [sic] softer punishments for crack dealers…

For more on the impact of this disparity in sentencing guidelines, see the excerpts from the dissent by Justice Stevens in United States v. Armstrong et al. (1996).

Originally written on May 2, 2007

In the open letter to Anderson Cooper (“Open Letter: You Screwed Up the “Snitch” Story, Anderson Cooper,” see the link to the letter at the bottom of this post), David Borden, Executive Director of the Stop the Drug War writes about the effects of informant testimony on the prosecution of drug cases. Some people are being sentenced to multiple-year sentences on the basis of informant testimony alone. He writes:

“The exchange of leniency — or even money — for testimony that will help the prosecution is an absolutely routine tactic in the drug war. The DEA, in fact, continued to use a “super-snitch” named Andrew Chambers for numerous prosecutions after a court had determined him to be a repeat perjurer. Common sense tells us that testimony acquired in this way is not always reliable.”

One of the comments to the letter says:

“As a prosecutor I see the harm the ‘stop snitching’ campaign does every day. For example, I have seen case after case where an person gets shot and refuses to testify about who shot him. […] This has nothing to do with the war on drugs. These people aren’t thinking about that. They are just listening to what their hip-hop singers are telling them about how to stick it to the man. But they are only screwing themselves.

I could care less if no one ever cooperates in a drug investigation again. But when it comes to real crime, people need to start ‘snitching’ unless they like living in hell.”

Notable are the last two sentences: the juxtaposition of “drug investigation” and “real crime.” This comes (allegedly) from a prosecutor! Obviously, informant testimony is invaluable in successfully prosecuting many cases, where a killer or a rapist would have otherwise have gone free. Obviously, the persons active in the “Stop Snitching” movement would agree with me on this. Obviously, the movement has at least something to do with the multiple instances of shoddy informant testimony putting people behind bars, people who are not persecuted for “real crimes.”

Of course, we can argue ad infinitum whether drug crimes constitute “real crimes.” But, in my opinion, that is not the point. The movement is only a sign of a social dissatisfaction with some aspect of our law enforcement as it is being applied to a social phenomenon that the government chooses to designate as a criminal matter. This dissatisfaction should send certain signals to the government that would prompt it to review its procedures and, possibly the underlying reasons behind them. If the venues for the feedback are insufficient – which would be demonstrated by the government’s inaction in this area – it obviously points to a systemic flaw in the interaction between the government and the governed. Similarly, if the government is aware of the (widespread?) criticism, but chooses not to address it, it points to an even more obvious flaw.

As promised, here’s the link to the David Borden letter:

Open Letter: You Screwed Up the “Snitch” Story, Anderson Cooper

Originally written on May 2, 2007