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U.S. Supreme Court Weighs Definition of Serious Drug Offense & Criminalization of Immigration Advocacy


In late February, the Supreme Court ruled on and heard very important criminal cases; one involving what is considered to be a serious drug offense under the Armed Career Criminal Act, while the other (which has not yet been ruled on) could determine whether those engaging in immigration advocacy could be arrested and prosecuted for crimes.

Determining A “Serious Drug Offense” Under the Armed Career Criminal Act

First, in Shular v United States, the Court looked at whether a criminal defendant can face enhanced sentencing under the Armed Career Criminal Act if they did not have the criminal intent or engage in conduct that involves knowingly handling a controlled substance. The Court ruled that being charged with a “serious drug offense” under the Act required only that the state offense involved the conduct described in statute, not that if match other generic offenses. Specifically, the Court rejected the generic approach and instead adopted a categorical approach, finding that the statute refers to conduct, not past offenses. In other words, a defendant cannot receive enhanced sentencing simply because they have prior offenses; they must be engaged in a particular type of conduct in order to receive enhanced sentencing under the Act.

Criminalizing Immigration Advocacy

The Court also heard arguments in an important criminal case involving a federal statute which makes it a crime to advise or encourage immigrants to stay in the country illegally and the question of whether this is unconstitutional. The case involves the conviction of a defendant who ran an immigration consulting business and was convicted under the statute. However, the 9th Circuit Court of Appeals threw out this particular conviction, finding the statute itself to be overly broad and in violation of the First Amendment’s protection of free-speech.

Based on the questions asked during arguments, the Court justices also appear to agree with the 9th Circuit on the issue, asking the government attorney a number of hypothetical questions about who could arguably be prosecuted under the statue, including a grandmother who simply encourages her own grandchild to stay in the United States, or a charity that provides assistance to someone who is in the country. In response to the government’s attorney claiming that the statute has not been used in this way, Justice Sotomayor pointed out that the law has been used to create a watch list of particular charitable organizations that provide advice at the border and to prosecute at least one individual who advised her housekeeper that if she returned to her home country, she may not be able to come back. Justice Gorsuch also pointed out that it is not a crime to be in the country illegally, so it arguably should not be a crime to encourage someone to stay here under the same circumstances.

This case will have significant repercussions for citizens and immigrants seeking citizenship alike, especially for attorneys who advise immigrants of their rights here in the US. If the Court sides with the government and upholds the law, it could soon be used against everyone in connection with advice, speech, and in a number of other contexts and interactions.

Contact an Experienced Criminal Defense & Immigration Attorney

If you have any questions about criminal defense or immigration legal issues, contact NYC criminal attorney Mark I. Cohen today to set up a consultation.





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