Pot Possession a Passport to Deportation?

Can a legal resident of the U.S. be deported for simple pot possession? And does an attorney's failure to tell a client that pleading guilty may mean a one-way ticket outta dodge, amount to ineffective assistance of counsel? Those are two questions facing the U.S. Supreme Court in a pair of cases of Reefer Madness.

In a ruling released March 31, a seven-justice majority confirmed that failing to inform a client that pleading guilty to a pending charge may lead to deportation – even in a low-level pot possession case, where the possibility of jail isn't even on the table – does amount to ineffective assistance of counsel.

The ruling came in the case of Jose Padilla, a Honduran native who is a Vietnam vet and has lived legally in the U.S. for 40 years. Padilla was popped in 2001 for transporting 1,000 pounds pot in his tractor-trailer through Kentucky. After consulting with his attorney he pleaded guilty to the charge and got a five-year sentence – and an express lane to deportation.

Padilla argued that was unfair in part because his lawyer not only failed to advise him of the possible consequence of his guilty plea, but in fact told him that he "did not have to worry about immigration status since he had been in the country for so long," according to the Supremes' opinion, authored by Justice John Paul Stevens and joined by six others. Padilla said his counsel's failure to properly advise him amounted to ineffective assistance of counsel. Not so, said the Kentucky courts, since deportation was only a "collateral" issue it didn't amount to ineffective assistance.

That is incorrect, the Supremes say. "We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation," Stevens wrote. In part, the issue is that the "landscape of federal immigration law" has changed so "dramatically over the last 90 years," he wrote. In the past there was only a narrow class of offenses that would net the automatic deportation and judges retained broad discretion to keep people from being deported.

Alas, that is the case no more. Indeed, there are numerous (horror) stories out there: Take the story of Jerry Lemaine, a legal resident originally from Haiti, who was popped one night in a New York suburb for carrying a single joint. A lawyer encouraged him to plead guilty to the charge, which carried the maximum penalty of a $100 fine. Instead of paying up and moving on, Lemaine was shackled and sent to a Texas immigration prison where he was confined for three years – including 10 months in solitary.

Whether Lemaine and others like him should have their cases weighed by an immigration judge who can decide whether the offense is deportation worthy is the subject of another case, now pending before the Supremes, styled Carachurri-Rosendo v. Holder. In that case, heard by the court this week, Jose Angel Carachurri-Rosendo, a Mexican national and legal resident of Texas, was deported after being popped in 2004 in Harris County with less than two ounces of pot (a Class B misdemeanor); in November 2005, he pleaded no contest to the Class A misdemeanor charge of possession of drugs without a prescription – a charge that was prompted, believe it or not, by his being caught carrying a single tablet of Xanax, for which he had no prescription. The question now is whether his 2005 conviction for simple possession could be considered "recidivist possession" and make him eligible for deportation. "Even if, as the Government contends, [Carachurri-Rosendo] could have been convicted of recidivist possession had additional charges and findings been made, the statute prescribes mandatory removal only of persons who has 'been convicted' of an aggravated felony, not of any person who 'could have been convicted' of an aggravated felony," his lawyers argue.

That case should be decided later this spring.