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      Good News! You Can’t Be Automatically Deported for Sharing Three Joints

      April 27, 2013

      By Sam Taylor


      Photo via

      Well, here’s bit of good news from the Supreme Court, a group not generally considered friendly to criminal defendants or recreational drug users: you cannot, it turns out, be automatically deported for the kindhearted but nonetheless illegal act of bringing a few joints to a party. That was the holding of Moncrieffe v. Holder, which the Court handed down on April 23. (We can only assume the Justices would have released their opinion on 4/20 if it hadn’t fallen on a Saturday this year.) What’s most surprising about the decision is that noted straight-edger John Roberts and his colleague Antonin Scalia, who’s still pissed about the 1960s, joined the four liberals and moderate Anthony Kennedy in reversing the mandatory deportation of Adrian Moncrieffe. Adrian is a Jamaican citizen who came to the US when he was three and was caught with 1.3 grams of marijuana during a traffic stop in Georgia in 2007. For his crime, the Department of Justice sought to deport him. How much pot is 1.3 grams? According to Sonia Sotomayor, the author of the Court’s opinion, it’s “the equivalent of about two or three marijuana cigarettes.” The more you know!

      No matter how you cut it, Moncrieffe’s transgression was pretty trivial. There’s no allegation he was high at the time of his arrest or evidence that he intended to sell the pot. By his own account, he planned to share the grass with others. He pled guilty in a Georgia state court of the crime of “possession of marijuana with intent to distribute.” Since he was a first-time offender and was caught with only a small amount of pot, the Georgia court let him off without a judgment of conviction and sentenced him to five years probation. The court also provided that Moncrieffe’s criminal record would be wiped clean if he managed to stay out of trouble for five years, which he did.

      You’re probably thinking: OK, so what else did Moncrieffe, a legal immigrant, do to wind up with a deportation order? Presumably you can’t get deported for committing a victimless crime that’s not even a crime anymore in some parts of the US, right? Well obviously you don’t work for the Department of Justice. The feds decided that no matter what Georgia did or said, Moncrieffe had confessed to behavior that qualified as an “aggravated felony” under federal law, and therefore was subject to automatic deportation. That’s right, back to Jamaica, a place Moncrieffe had never called home, for engaging in an act that tens of thousands of college students commit every year (the generous ones, at least). And once you’re deported, it’s awfully hard to get back in.

      Seems fucked right? Particularly for an administration headed by a president with a foreign-sounding name who engaged in occasional drug use in his youth. Well the Supreme Court agreed. Although not exactly on those terms. The Court’s reasoning was pretty technical and noticeably lacking in sweeping language about justice and fairness. But that’s often how things go on the high court. Here’s the gist of what they said: under federal law, the federal government has the authority to deport non-citizens who have been convicted of certain classes of crimes, including drug crimes. In many cases, the person staring down deportation can ask the Attorney General to cut him or her a break. However, for certain crimes known as “aggravated felonies,” deportation is automatic. Aggravated felonies are offenses that can result in punishment of greater than one year imprisonment.

      With me so far? OK. So, federal law provides that possession of 50 kilograms or less of weed with the intention to distribute is punishable by up to five years imprisonment. That’s an aggravated felony. But there’s an exception: if the defendant’s behavior only involved “distributing a small amount” of pot “for no remuneration,” then he’s guilty not of an aggravated felony, but a misdemeanor. The Court found that the Georgia crime that Moncrieffe pled guilty to—and it’s the definition of the crime that matters, not the stuff that Moncrieffe actually did—included behavior that could get a person convicted of the full-blown federal aggravated felony. But the Court found that the Georgia crime could also correspond to behavior that would result only in the misdemeanor charge. And because of that ambiguity, Moncrieffe’s crime wasn’t necessarily an aggravated felony under federal law. Finally, in a gentle rebuke to the feds, the Court wrote that this was the third time in seven years that the government has tried to spin a “low level drug crime” as an aggravated felony in a way that defied common sense.

      So, in summary: share a ton of weed, or sell even a little bit, and you’re on the next flight to Kingston. Share just a few spliffs, and you may get to stay. But why did Roberts and Scalia agree? There’s no way to know for sure—sometimes Justices write separate concurrences explaining why they’re joining the majority, but they didn’t here. Maybe they thought Sotomayor’s technical reading of the law was correct. But maybe it occurred to them that the pettiest of petty drug offenses—so petty even prison-loving Georgia gave Moncrieffe a slap on the wrist—isn’t a great reason to give the boot to someone who’s spent nearly his entire life in America and has otherwise been a law-abiding member of society.

      Whatever the reason, it wasn’t persuasive to all the Justices. Former federal prosecutor Samuel Alito and former Assistant Attorney General (and Georgia native) Clarence "Who has put pubic hair on my Coke?" Thomas wrote separate opinions dissenting from the majority’s decision. Thomas’s beef was primarily with some earlier decisions the Court made that controlled the reasoning in Moncrieffe’s case. Alito was troubled by the Court’s focus on the definition of state crimes rather than the defendant’s actual behavior. He pointed out that, by the Court’s own logic, if Moncrieffe had done the exact same thing in Florida instead of Georgia, he would have been subject to mandatory deportation. That’s a good point—it seems unlikely that Congress intended for there to be different results depending on which state you blazed up in—although it seems pretty clear that the uniformity Alito wants is one where social sharing of pot is a deportable offense from sea to shining sea.

      All this begs the question: Why, at a time of decreasing budgets and growing support for marijuana legalization, is the Obama Administration trying to destroy the lives of legal immigrants over a few doobies? 

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      Topics: law, SCOTUS, weed, legalize weed, sonia sotomayor, George, department of justice, Obama, deportation, immigration, jamaica

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