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October 1, 2009

A thoughtful defense of prosecutorial declination in the Andrew Sullivan pot case

Regular readers may recall the recent kerfuffle over the decision by federal prosecutors to dismiss minor marijuana possession charges against noted blogger Andrew Sullivan (blogged here).  Because I was not quite sure what to make of the case, I asked former federal prosecutor Anthony Barkow, who is now the Executive Director of the Center on the Administration of Criminal Lawat NYU School of Law, if he had some thoughts on the matter.  To may great pleasure, Barkow and one of his NYU students penned a terrific commentary, which can be downloaded in full below.  Here is how the piece starts and ends: 

“Equal justice under the law” is a phrase that graces the walls of courtrooms across America. Unfortunately, it has become all too common in recent decades for lawyers to place too much attention on superficial equality without paying similar heed to the need to do justice.

A recent example involves provocative public intellectual and blogger Andrew Sullivan....

The Magistrate presiding over Sullivan’s case decried what he viewed as differential treatment given to Sullivan compared to others charged with marijuana possession.  He pointed out that the Sullivan declination did not reflect a discretionary decision by the United States Attorney’s never to prosecute the possession of small amounts of marijuana, noting that such persons “are prosecuted routinely.”   The Magistrate rejected the idea that prosecutors should consider collateral consequences when making charging decisions, arguing that the United States Attorney should have charged Sullivan and left to immigration authorities the determination of whether Sullivan would be deported or denied citizenship.  In doing so, the Magistrate ignored the constitutional and practical role prosecutors play as gatekeepers in the criminal justice system, the obligation of prosecutors only to pursue charges that result in proportional punishment, and the fact that prosecutors’ first obligation in all exercises of discretion is to see that justice is done.

Download NYU Sullivan commentary

October 1, 2009 at 01:09 PM | Permalink


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Putting the word "justice" in bold type doesn't magically make disparity disappear. They way some pro-disparity advocates get teary over the term "do justice" reminds me of the way neo-cons used to get all a-flutter when Bush muttered non-sequiturs like "they hate us for our freedom." Every defendant has "collateral consequences" to face, every defendant deserves "justice". To brush away very real criticisms of disparity and preferential treatment by making empty invocations is beyond weak - it's downright despicable.

Posted by: Ferris Bueller | Oct 1, 2009 2:08:45 PM

The authors are correct that prosecutors should look broadly to determine whether a charging decision advances the course of justice in an individual case. But no one has ever argued that they shouldn't. Rather, the argument is that that prosecutors do an injustice when they ignore the impact of those individual decisions on the system as a whole. It is entirely possible for injustice to be done to an individual that nevertheless is justice at the mean. The mean is just that: some people fall below and some people rise above. Just because a prosecutor's decision to charge would create an injustice to the individual human being named Andrew does not conclusively end the matter. It is only one data point that the prosecutor must consider. As the judge points out, many individuals who are not famous are routinely sent to jail for just such a crime as Andrew committed.

So do the authors applaud those other injustices and consider them to be necessarily sacrifices for the good of the whole? If not, why did it take an injustice to a celebrity for them to speak out? Our do they accept as an uncomfortable truth that Supremacy Claus is correct and justice is up for sale to the highest bidder?

Understand what the critique of the prosecutor is. He's not being charged as being wrong. He's being charged as being hypocritical. Of applying a different standard to the famous than he does to the unknown. The authors response ignores this central claim.

Posted by: Daniel | Oct 1, 2009 2:12:48 PM

We all understand collateral consequences, Doug. The issue is whether a poor Mexican immigrant would have received the same special treatment. The MJ's ruling seemed to suggest not.

When a rich, white, connected immigrant like Sullivan receives more equal treatment than a poor, brown, unconnected one; there's a problem. Repeating prosecutorial cliches and clap-traps doesn't address that problem.

Posted by: MikeC | Oct 1, 2009 4:26:26 PM

Still unconvincing. If it turned out that this prosecuting office routinely did not charge people with minor possession, I would agree with the hackneyed statement completely. But the essence of my complaint the previous time you posted this story was that famous and/or rich people--and their kids--routinely get out of criminal punishment because of their status.

More often than not, prosecutors cite the utter pointlessness of saddling them with a criminal conviction for a victimless and ultimately innocuous crime. And the prosecutors are right. The problem is, they seem to forget this same senselessness when a working class high schooler is harmlessly drinking a beer or smoking a joint with his buddies in a field. In fact, a lot of times cops with no real crime to prevent will actively seek out harmless crime--or even worse, create crime where it doesn't otherwise exist (e.g. sending a youth with a good-looking fake ID into a supermarket to see if the clerk checks). The prosecutors reward this behavior with plea bargains.

As I said before, start punishing Andrew Sullivan and rich people the same way as you do everyone else, and suddenly small-scale possession of marijuana will be decriminalized and underage possession will be dealt with the same way it was in the 60s--dropping the kid off at home and letting the parents determine the best punishment.

Posted by: Res ipsa | Oct 1, 2009 4:38:42 PM

Well said, Res ipsa. Barkow's piece did not actually address any of our equal protection arguments. Instead, Barkow thoughtlessly repeated cliches. Discretion! Justice!

Sure. No kidding. Where is the justice for people who, unlike Sullivan, don't have wealth and power?

Prosecutorial discretion is nothing more than a tool prosecutors use to keep members of their social class out of trouble.

Posted by: MikeC | Oct 1, 2009 5:29:19 PM

Shorter Barkow: "Trust us, we're from the government and we're here to do justice."

Posted by: William O. Rights | Oct 1, 2009 7:29:15 PM

What goes unmentioned by the authors is not just that Andrew Sullivan is a prominent blogger, but that he was an active supporter of candidate Obama, who is now head of the same executive branch that, lo and behold, gives Sullivan this very unusual benefit.

If a prosecutor in the Bush Justice Department had done the exact same thing for, say, Sean Hannity, the liberals would have gone wild. But since Sullivan is one of their own, the story barely sees the light of day.

For those interested, the entire Memorandum Opinion by the Magistrate Judge is worth reading, and makes clear just how far the prosecutor had to reach to "justify" his motion to dismiss.

Posted by: Bill Otis | Oct 1, 2009 7:59:04 PM

Utter nonsense.

What about the burden on the defendant to consider the "proportionality" of his criminal actions?

If I were desperately trying to emigrate to Libertopia, then I would go to the greatest lengths possible not to do anything that might frustrate that goal. I cannot simultaneously claim, "this is really serious for me" and "I don't take this seriously."

Do the crime, do the time.

Posted by: KipEsquire | Oct 2, 2009 8:04:52 AM

Maybe I'm missing the point, but it doesn't really seem like the commentary is defending Sullivan or the particular facts of a famous person getting disproportionate justice. Sullivan just happened to be the flash point that made the issue more visible, much like Polanski is doing right now.

Disproportionate justice happens, it is true and it is one of the more irritating things about our system. But instead of whining about how unfair it is, shouldn't we be supporting this particular use of prosecutorial discretion and argue that it should be used more widely? Don't we want to push prosecutors to stop and think about all of the collateral consequences for everyone no matter who they are? Shouldn't we be saying "Bravo, but don't stop there?"

To me the worst answer is to say that prosecutors shouldn't consider collateral consequences at all, just so we can feel better about everyone being treated poorly together.

Posted by: John I. | Oct 2, 2009 11:48:11 AM

John. In an ideal world you are right. We don't live in that world. We can *argue* all day long that it should be used more widely. Odd thing, though. Every time it's used in *practice* it only servers the needs of the elite.

If you think a prosecutor is going to give a poor dude a break you are living in la la land.

Posted by: Daniel | Oct 2, 2009 2:15:34 PM


With respect, no. Real reform cannot occur as long as the wealthy and celebrities continually get breaks in our system (which they do). They hold the only real power in our top-down political system, and until they start suffering the same consequences that everyone else does, they will never have an incentive to change it. If you don't believe me, ask Barack Obama how that changing Washington thing is going (and I'm not hating on the guy--I voted for him).

Supporting the prosecutor's decision here and then saying "go further" will fall on deaf ears. You can only make an omelette in this situation by breaking a few fabrege eggs.

Posted by: Res ipsa | Oct 2, 2009 2:34:29 PM

Daniel and Res Ipsa -

I agree that urging prosecutors to focus more on collateral consequences is a tough road and that in advocating it I am living in "la la land." However, I'm not sure what solution you are advocating.

To me there are three avenues: 1) Do nothing and simply complain about how unfair it all is; 2) Respond as the judge did in the Sullivan case, saying that collateral consequences shouldn't have been considered here if it wasn't in other cases (i.e. if you didn't bring enough for the whole class, then you can't have it either); or 3) Agree that collateral consequences shouldn't be only considered in certain circumstances, but should be looked at in all cases (i.e. if you didn't bring enough for the whole class then lets make sure in the future you do).

As far as I can tell, Barkow is arguing for the third avenue and I tend to agree. Yes, its a silly optimistic view that may fall on deaf ears, but wouldn't your solution of stopping these prosecutorial actions for anyone if they can't be used for all fall on equally deaf ears? If either 2 or 3 are equally impossible because of elitism/racism/classism/whaterism, then why not waste our time and hopes on the one where everyone's collateral consequences are considered by a prosecutor when their day comes? At least we fail by pushing the government toward a useful equality instead of a substandard one.

Or am I misunderstanding your stance?

Posted by: John I. | Oct 2, 2009 4:32:48 PM

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