Sullivan avoids pot charge; judge objects

The blogger and commentator Andrew Sullivan was busted in July for possessing a small amount of marijuana within the Cape Cod National Seashore. A month later the charge was dropped. A non-story?

Not to U.S. Magistrate Judge Robert B. Collings, who yesterday declared that the dismissal of the charge against Sullivan violated "the bedrock principle of our legal system that all persons stand equal before the law."

"It sometimes happens that small cases raise issues of fundamental importance in our system of justice; this case happens to be an example," Collings wrote.

The odd legal controversy was reported yesterday in The Docket, the news blog of Massachusetts Lawyers Weekly.

Sullivan, according to Collings's summary of the case, was charged on July 13 and ordered to, in effect, pay a fine of $125 or go to court. He elected to go to court. In late August, however, the U.S. Attorney's Office filed a request with Collings to dismiss the charges because "further prosecution of the violation would not be in the interest of justice."

Collings found the request, and the vague explanation, puzzling, given that the U.S. Attorney's office routinely prosecutes pot cases, even involving small amounts. So he called a hearing, held September 2. There, Sullivan's lawyer, Robert Delahunt, Jr., explained that the charge could complicate his client's attempt to become a U.S. citizen. (Sullivan is British by birth. He is also HIV positive, as he has often noted on his blog, and U.S. law continues to discriminate against potential citizens who are HIV-positive, a subject Sullivan has written about often.)

Collings found that explanation unsatisfying, too: even if the charges were dismissed, Sullivan would still have to tell U.S. immigration officials that he had been charged with a federal crime. Moreover, many other people in similar situations--applying for citizenship--had not been granted such a favor. Collings wanted to pursue the matter, but the Assistant U.S. Attorney handling the case replied that Collings had to respect prosecutors' discretion.

In yesterday's "memorandum and order," Collings explained that federal law is somewhat unclear about when a judge may challenge a prosecutor's request for a dismissal, if such a decision appears to display favoritism. Ultimately, however, the weight of precedent suggested he had to respect the prosecutor's decision, he concluded.

"That the Court must so act," he wrote yesterday, "does not require the Court to think that the end result is a just one."

Collings went out of his way to clarify that his objections had nothing to do with his own opinions about marijuana laws or with whether prosecutors should pursue minor possession cases as a general matter.

(Memorandum via Gawker; Gawker acquired it from The Docket, but I was unable to download it from that site)