By Jolene Forman and Theshia Naidoo
The war on drugs and the war on immigrants are intimately intertwined. The United States routinely deports non-citizens for minor drug offenses. Every year, roughly 40,000 people are deported for drug law violations, about half of which are for drug possession alone.
Today, Human Rights Watch released a 93-page report entitled “A Price Too High: U.S. Families Torn Apart by Deportations for Drug Offenses.” The report demonstrates that tens of thousands of people are deported annually for minor drug offenses, even when they only possessed enough for personal use and even when they completed their sentences long ago.
Between 2008 and 2014, just six short years, more than a quarter of a million people were deported for drug offenses. The time has come to completely overhaul our drug laws and prevent mass deportation based on minor drug offenses.
At first blush the U.S. Supreme Court’s recent Mellouli v. Lynch decision – stopping the deportation of a non-citizen who was convicted of possessing drug paraphernalia – seemed to be a resounding victory. But, upon further reflection, it is only a small first step. The case is a bellwether of the harsh intersection between the war on drugs and mass deportation.
The Mellouli v. Lynch case turns on Moones Mellouli, a highly educated professional engaged to marry an American citizen. Mr. Mellouli was convicted of possession of drug paraphernalia – in the form of his sock – in which he carried four pills of Adderall. He was sentenced under Kansas state law to and successfully completed probation. However, months after his probation ended, he was arrested by Immigration and Customs Enforcement and deported based on the paraphernalia conviction, an offense that is not illegal under federal law. In a laudable 7-2 decision, the Supreme Court ruled that a sock-as-drug-paraphernalia could not be the basis for deportation.
While the Court should be applauded for recognizing the absurdity of the circumstances of Mr. Mellouli’s case, the decision was so narrow that it cannot really affect the drug war’s devastating impact on immigrants.
California is proactively trying to change the impact of harsh immigration laws. While the state cannot change federal immigration laws, it can change the impact of its own role in the drug war. In 2014 California state voters passed Proposition 47, which reduced specified, low-level felonies to misdemeanors, thereby reducing the risk of deportation for some non-citizen defendants. Yet, a drug possession conviction – which is now a misdemeanor under California law – can still lead to deportation under federal immigration law. In fact, almost all drug violations are deportable offenses according to federal law.
In an attempt to provide relief to those non-citizen defendants arrested for drug possession offenses, the California legislature is currently considering two bills , Assembly Bills 1351 and 1352, both authored by Majority Caucus Leader Susan Eggman. Together, these bills reward participation in drug treatment and provide immigrants a path to clear their records. AB 1351 would provide pre-plea diversion for minor drug offenses and AB 1352 would allow people who have already successfully completed drug treatment – under existing deferred entry of judgment statutes – to withdraw their pleas, thereby saving them from the risk of deportation. Other states should follow California’s lead and amend their drug laws in order to circumvent draconian federal immigration laws.
Until the federal government passes comprehensive immigration reform, it is left to the states to protect non-citizens from being deported for minor drug offenses by changing state criminal laws. States have historically taken the lead in drug control efforts. In fact, the vast majority of people incarcerated for drug law violations are held at the state or local, rather than federal, level. Because of this, states should not wait for the federal government to reform immigration laws. States can reduce deportations by decriminalizing personal drug use and possession; allowing defendants to access drug treatment programs without first entering a guilty plea; and expunging minor drug convictions.
Jolene Forman is a staff attorney at the Drug Policy Alliance, and Theshia Naidoo is senior staff attorney at the Drug Policy Alliance.
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Author: Jolene Forman and Theshia Naidoo
Date Published: June 16, 2015
Published by Drug Policy Alliance
Via:: Ddrug Policy Alliance