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.