Marijuana is being decriminalized in many states and localities throughout the United States. While recreational use of marijuana is legal in only a handful of states, in many other areas it has become a type of pseudo-violation with such low criminal penalties that defendants may be issued just a citation or ticket and are often not entitled to the assistance of a public defender. While low-level marijuana offenses have fewer meaningful consequences within the criminal justice system in these jurisdictions, these offenses continue to create serious immigration consequences for noncitizen offenders. The Immigration and Nationality Act defines “conviction” in such a way that even civil infractions with very low penalties count as drug convictions that make lawful permanent residents deportable.
The combination of lowered criminal penalties for marijuana offenses and severe resulting immigration consequences causes significant problems for noncitizens. First, as the penalties for marijuana offenses are lowered at the state and local levels, a defendant is less likely to have a right to appointment of a public defender when charged with possession of a small amount of marijuana. This situation implicates potential violations of the Sixth Amendment right to effective assistance of counsel in criminal proceedings, which has been held to cover affirmative advice on the immigration consequences of a criminal charge. Additionally, even with the assistance of a public defender, individuals may still be unable to avoid the harsh immigration consequences that often result from marijuana offenses. These harsh consequences violate our society’s understanding of proportionality of punishment in criminal law. Even though immigration law is traditionally insulated from proportionality considerations because of the plenary power doctrine, deportation for low-level marijuana offenses provides one example of why this doctrine should be reconsidered.62-2-5