It’s not that Andrew Sullivan smoked some pot, which in itself is no big deal despite the fact that it’s a big enough deal to land most people in the hoosegow, but that no one has yet come up with a rationale that can make any sense of the government’s decision to give this very prominent blogger at The Atlantic, winner of the 2008 Best Blog, a free pass.  But that doesn’t mean no one is trying.

Via Doug Berman comes an academic effort to explain the facial disparity that Magistrate Judge Robert B. Collings found inexcusable and unjustifiable.  The official explanation:

This went over poorly, the arguments being the same garden variety excuses that apply in a wealth of prosecutions that aren’t dismissed.  But then, the defendants aren’t Andrew Sullivan.  So Doug took matters into his own hands.

I have to assume that Doug’s description of Barkow’s explanation is a matter of professional courtesy, because it is just horrible.  Whether that’s because it’s a string of disconnected platitudes about “Justice” that entirely ignore the only issue raised in this case, disparity of treatment, or reflects wholesale ignorance of the fact that Sullivan’s situation is remarkably ordinary, with defendants charged with minor offenses often having immigration and/or health consequences.  And most of the time, their homeland is far less hospitable than the United Kingdom.

Barkow begins by “explaining” that Mag. Collings ignored a basic concept, the power of the sovereign to exercise discretion:

He then “explains” that collateral consequences exist for criminal prosecution:

The consequences that attend collaterally to criminal convictions are often significant and debilitating. They include disenfranchisement, deportation, or the loss of the ability to live in public housing or to work in various professions. Indeed, in the case of low-level crimes such as marijuana possession, the seriousness of collateral consequences often exceeds the punishment that derives directly from the commission of the crime.

From whence he concludes:

Thus it was entirely appropriate for the United States Attorney to consider the impact that a prosecution could have had on Sullivan’s pending immigration status, especially given the small quantity of marijuana that Sullivan was accused of possessing and the fact that Massachusetts recently decriminalized the possession of up to an ounce of marijuana.

If this is a “terrific” explanation, we’re in far deeper trouble in academia than I thought.  It’s not that there’s anything to disagree about in Barkow’s commentary, though it reflects the depth of understanding that any criminal defense lawyer who has been in the trenches more than a week would possess, but it wholly misses the issue. 

No one says prosecutors shouldn’t exercise discretion, or have the authority to do so.  No one says that the collateral consequences of conviction aren’t draconian. But what does that have to do with the fact that of the thousands of defendants who receive no such consideration, suffer draconian consequences, only the powerful, like Andrew Sullivan, is deserving of better treatment?  That’s the question. Barkow never goes anywhere near it.  He doesn’t, as far as can be discerned from his commentary, even understand it.

But now that the question is on the table, I’m going to take a stab at providing a hard answer as to why Andrew Sullivan was welcomed into the warm bosom of the legal system when others are not.  Rather than rank favoritism, the heightened status of an Andrew Sullivan gave the prosecution pause to think about the issues, the problems, the consequences of their actions where they were not sufficiently interested to do so in other cases. 

Whether it was Joe Smith or Jose Morales before, neither defendant was a real, living, breathing human being to the men and women who suffered the butt of our criminal justice system.  The prosecution went through the routine motions, sloughed off the harshness of their actions as part of the job, and felt nothing.  They went for a drink after work and slept well that night.  They never gave the impact of prosecution on these defendants a second thought.

But when Andrew Sullivan stood in the dock, it was real.  Here was a person, not merely a defendant.  Here was some trivial offense, one that many (including the brethren in the United States Attorneys office) indulged though they avoided talking about it in the courtroom, that had the potential to wreak havoc on his world.  He was intelligent, respected, erudite.  He was like them.

When it was Andrew Sullivan standing there, the significance of what they were doing took on life.  And they, for once, recognized that it would be crazy to ruin his life over such crap.

I don’t begrudge Andrew Sullivan getting a pass for possessing a little pot.  I begrudge Joe Smith and Jose Morales not getting the same concern and recognition as Andrew Sullivan.  They have lives and families, dreams and aspirations.  They are human beings.  Every reason that applies in favor of giving Andrew Sullivan a pass applies to them as well.

Free Andrew Sullivan!  Just free the rest of them as well.