Rethinking drug inadmissibility.

• Jurisdiction: United States
• Date: 01 October 2008
• Author: Morawetz, Nancy
• Published date: 01 October 2008
• Author: Morawetz, Nancy

ABSTRACT

Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero-tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, the Article proposes changes to the immigration law that would better reflect societal standards with respect to the appropriate lifetime consequences of past drug use. Finally, the Article argues that more systemic reform depends on developing mechanisms that will better insulate the specific criteria for denying admission from the one-way political ratchet of episodic congressional oversight.

INTRODUCTION I. THE STRUCTURE AND EVOLUTION OF DRUG INADMISSIBILITY LAWS A. The Anti-Drug Abuse Act of 1986 B. The Immigration Act of 1990 C. The Immigration and Nationality Act Amendments of 1981. II. IMPLICATIONS OF CHANGES IN SUBSTANTIVE LAW AND ENFORCEMENT PRACTICES ON THE REACH OF THE DRUG INADMISSIBILITY GROUND ON UNITED STATES RESIDENTS A. The Immigration Law Context 1. Formal Structure of the Immigration Laws and the Impact of Admissibility Rules on United States Residents 2. The Enforcement Context B. The Criminal Law Context 1. State Criminal Law Requirements 2. State Criminal Law Enforcement III. THE CASE FOR LEGISLATIVE REFORM A. Measuring the Immigration Standards Against Popular Experience B. Comparable Zero-Tolerance Policies Have Proven To Be Unworkable and Unjustified C. Disproportionality D. The Dangers of Arbitrary Enforcement and Profiling E. Penalizing Honesty IV. PROPOSALS FOR LEGISLATIVE REFORM A. Technical Fixes 1. Basing Inadmissibility on Convictions 2. Inclusion of a Petty Offense Exception 3. Eliminating Bars to 212(h) Waivers B. Systematic Overhaul CONCLUSION INTRODUCTION

In early 2007, the press debated whether candidate Barack Obama's admission of past cocaine use would spell the end of his bid for the presidency. (1) Eleven years earlier, then-candidate George Bush was more cautious in his admissions, stating that he could honestly deny any drug use over the previous twenty-five years. (2) Bush was careful not to provide a lifetime answer to the questions of the press and refused to answer specific questions about whether he had used drugs before he turned twenty-eight. (3) The press around Obama and Bush included active debate about the scope to which public officials should be subjected to scrutiny about any past drug use. (4) But the statements of both Obama and Bush reflect a common assessment that drug use that is far enough in the past or has been followed by a clean record should not serve to disqualify them from public office. This assessment matched the polls, where 84 percent of voters said that they did not think that proof of cocaine use in his twenties should disqualify Bush from the presidency. (5) Indeed, in the domestic sphere, the reality of some past drug use in a large segment of the adult population is so well-recognized that the Federal Bureau of Investigation (FBI), along with police departments around the country, have altered hiring practices so that admission of past drug use no longer automatically disqualifies an applicant for a position as an agent. (6)

In the immigration realm, the situation is completely different. At the questioning stage, there is no limit to the time span for which immigrants are expected to reveal past drug use. The standard application to adjust status to lawful permanent residence asks applicants: "Have you ever, in or outside the United States: knowingly committed ... a drug related offense for which you have not been arrested?" (7) Once answers are provided, the law is extremely unforgiving. As rewritten in 1990, the Immigration and Nationality Act (INA) provides that an admission of a violation of a controlled substance law bars admission to the United States. (8) There is no provision for excluding old offenses. And unlike the other major criminal ground of inadmissibility, there is no exception for those who were under eighteen at the time of the crime or who were convicted of a petty offense. (9) Furthermore, the general waiver for criminal grounds of inadmissibility is unavailable for anything other than a single instance of possession of marijuana in an amount under thirty grams, an amount which is less than an ounce. (10)

The potential sweep of the drug inadmissibility ground is breathtaking. Various studies of lifetime drug use in the American population show that experimentation with drugs is the norm rather than the exception. (11) Furthermore, these studies rely on self-reporting of conscious use of illicit drugs. (12) The criminal law has evolved so that possession is now typically a strict liability crime in which mere presence in a location where there are drugs is sufficient to prove constructive possession, and there are no meaningful defenses to a charge of possession. (13) If the immigration law were applied to truly screen out every applicant who, at some time in his or her life, could have been prosecuted under the broad strict liability drug possession laws of the United States, it is easy to imagine even larger numbers, if not virtually all, of those selected for immigration based on family ties or business need would be excluded.

It is time for policymakers to review the standards for barring immigrants based on past violations of drug laws. Any inadmissibility rule denies admission to the very people who are identified by law as those we are most interested in having immigrate. Whether that group is made up of family members and those sponsored by business (as reflected in current law) (14) or a point system (as proposed in the "Grand Bargain" debated in 2007), (15) the immigration laws are designed to identify persons who the United States has an interest in bringing or keeping in this country. Because drug inadmissibility sweeps so broadly, it has the potential to exclude arbitrarily many worthy immigrants. On that basis alone, the standards are worthy of examination.

Furthermore, the current law emerged from an inattentive legislative process. As a result of a series of legislative amendments--many of which were accompanied by no explanation from Congress (16) or explanations that indicated that Congress had no intent to expand these grounds (17)--the drug inadmissibility ground has lost the conventional moorings for limiting the breadth of inadmissibility grounds. First, it is based on a pure cross-reference to the laws regulating drugs that are enacted by states or foreign governments. (18) It has no significant separate federal content--as with laws governing crimes involving moral turpitude which limits the scope of offenses. As a result, it is hostage to state laws that have dispensed with basic safeguards of the criminal law, such as mens rea, in delimiting criminal liability. (19) Second, since 1990, the drug ground can be triggered without a conviction, and yet it lacks basic exceptions for petty offenses that are recognized for the other significant inadmissibility ground, (20) which reaches crimes classified as "involving moral turpitude." (21) Given the prevalence of lifetime drug use, the lack of any exception for petty offenses assures that the drug ground reaches minor conduct in excluding worthy applicants for admission. Third, the drug ground is written in a way that ossifies the exceptions for more innocuous use identified in the past. (22) As applied today, any new drug that the federal government chooses to recognize as worthy of being treated as a controlled substance is automatically treated as a ground of inadmissibility and as not worthy of any exception. Fourth, the drug inadmissibility ground is particularly out of step with public values, as reflected in the polls surrounding inquiry into President Bush's possible past drug use. (23)

So long as drug inadmissibility can be triggered by a concession, rather than a conviction, reform is also necessary to preserve the integrity of the immigration process. Questions that seek admissions from immigrant applicants for visas and then provide no safety valve for fair consideration of the responses encourage applicants to lie. This is bad for the applicants and bad for the immigration system. It breeds contempt for the process, discourages honesty, and rewards dishonesty.

The drafters of the immigration law should learn from the experience of employers who have rejected the kind of zero-tolerance, one-size-fits-all approach that is reflected in the current drug inadmissibility grounds. (24) Although many employers are restricted by law from inquiring into past drug use, certain federal employers are exempted from these restrictions. (25) Among these federal employers, the FBI has experimented with a policy that was almost, although not quite, as severe as the standards in current immigration law. (26) But with experience, the FBI rejected such a zero-tolerance policy because it screened out worthy potential employees. (27) If the FBI can recognize the folly of inflexible rules that screen out our job candidates with past drug use or misdemeanor convictions, then certainly the immigration system, which is not hiring for such sensitive positions, but is instead making decisions about reuniting family and attracting talent for the workplace, should be able to do so as well.

Part I of this Article examines key aspects of current drug inadmissibility grounds, and the legislative origins of these policies. Part II explores how criminal justice policies and general changes in immigration law and...