In my post America the Ugly I referred to situations where people were getting deported from this country because of minor drug transgressions.
Here’s how it worked:
Jose Angel Carachuri-Rosendo, a lawful permanent resident of the United States, was convicted of two misdemeanor drug offenses in Texas. For the first, possession of a small amount of marijuana, he received 20 days in jail. For the second, possession without a prescription of one anti-anxiety tablet, he received 10 days.
Now, here’s where the trickery was taking place. To deport someone, they must have been convicted of an “aggravated felony.” Jose’s convictions were misdemeanors.
However, a provision of a federal law allows that recidivism (ie, multiple convictions, even of simple possession), may be prosecutable as a felony offense under the Controlled Substances Act.
The feds were taking the multiple misdemeanors and noting that, if they had been prosecuted in Federal Court using those standards, they could have been eligible for the recidivism enhancement (making it a felony), and therefore the person had essentially been “convicted” of a crime that was a felony by definition (even though they hadn’t been sentenced that way), and should be deported.
Fortunately, this week the Supreme Court, in Carachuri-Rosendo v. Holder, ruled unanimously that the federal government was full of crap.
Justice Stevens delivered the opinion, which included this gem (references removed):
While it is true that a defendantâ€™s criminal history might be seen to make an offense â€œworseâ€ by virtue thereof, it is nevertheless unorthodox to classify this type of petty simple possession recidivism as an â€œaggravated felony.â€
Of course, as Justice Souter observed in his opinion for the Court in Lopez, Congress, like â€œHumpty Dumpty,â€ has the power to give words unorthodox meanings. But in this case the Government argues for a result that â€œthe English language tells us not to expect,â€ so we must be â€œvery wary of the Governmentâ€™s position.â€ Because the English language tells us that most aggravated felonies are punishable by sentences far longer than 10 days, and that mere possession of one tablet of Xanax does not constitute â€œtrafficking,â€ Lopez instructs us to be doubly wary of the Governmentâ€™s position in this case.
Common sense from the Supreme Court. Hmmm….
Update: In other good news, this from the Kentucky Supreme Court today in Cochran v. Commonwealth, the court ruled that a woman may not be charged with wanton endangerment of her child based on having ingested illegal drugs while pregnant.
Again, the court showed common sense and noted that such prosecutions were not given to mothers who drank alcohol while pregnant.
The “case-by-case” approach suggested by the Commonwealth is so arbitrary that, if the criminal child abuse statutes are construed to support it, the statutes transgress reasonably identifiable limits; they lack fair notice and violate constitutional due process limits against statutory vagueness.
The court also slammed the prosecution by demonstrating that the sense of the Kentucky General Assembly had been made clear in its Maternal Health Act of 1992, which stated:
… punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care and substance abuse treatment necessary to deliver a healthy newborn…