The U.S. Supreme Court held Tuesday that an immigrant should not have been automatically deported for a minor marijuana conviction. In a 7-2 decision, Justice Sonia Sotomayor said a state charge of possession with intent to distribute for possession of an amount equivalent to two or three marijuana joints was not an “aggravated felony.”

Under U.S. law, immigrants facing deportation typically have an opportunity to contest it. However, if the immigrant has been convicted of crimes categorized as “aggravated felonies” in the Immigration and Nationality Act, deportation is automatic, and not even claims that the individual is seeking asylum can stop that person’s removal from the country. The “aggravated felonies” category includes illicit drug trafficking offenses, but it does not include mere drug possession. Under federal drug law, Jamaican national Adrian Moncrieffe would not have been charged with possession with intent distribute for mere possession of the 1.3 grams found in his car during a traffic stop, with no evidence that money changed hands. But Georgia law defines crimes differently, and immigration agents determined that his guilty plea to the state crime of the same name qualified him for automatic deportation.

Justice Sotomayor rejected immigration agents’ equivocation of Moncrieffe with a commercial drug dealer:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms. Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’” Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

This decision was a case of a state crime misapplied to a federal immigration law. But it also highlights another area of the law in which drug use is harshly over-punished. While Moncrieffe, who has lived in the United States since he was three years old, rightly escaped automatic deportation, those immigrants who are found guilty of a distribution-related crime under the federal Controlled Substances Act will not fare as well.

Five months ago, two states passed ballot initiatives to legalize small amounts of marijuana and regulate it like alcohol. Since then, public opinion and momentum have continued to build away from criminalization. New awareness about the failed War on Drugs, the violence that accompanies illicit marijuana sales, and overly harsh sentences have sparked a movement that saw its culmination this weekend, as legalization advocates around the country celebrated victories and vied for reform on 4/20, in spite of one unfortunate violent incident in Denver. The following are some of the developments that have occurred since the November 6 election:

• Washington and Colorado stopped arresting people for minor possession of marijuana, dropped hundreds of pending criminal charges, and reallocated their scarce resources. While implementation of the regulatory and licensing schemes for recreational marijuana will likely take more than a year, the two new state laws have already removed penalties for private, recreational use of the substance, with little documented negative consequence thus far.
• Members of Congress introduced several bills to square state and federal marijuana law. Last week, three Democrats joined three Republicans in the latest bipartisan bill that would exempt individuals complying with state marijuana laws from federal prosecution under the Controlled Substances Act. Other bills in Congress would regulate and tax marijuana in states where it is legal, and legalize hemp.
• Eleven more states introduced bills to legalize and regulate marijuana, five of which are still pending, according to the Marijuana Policy Project. Several other states are ramping up campaigns for ballot measures in the coming years, with Alaska already clearing the initial hurdles to get a measure on the ballot in 2014.
• 18 more states introduced medical marijuana bills, and a Maryland bill for modest legislation that would allow distribution through academic research centers is awaiting Gov. Martin O’Malley’s (D) signature. An Illinois measure that passed that state’s House Friday is supported by more than 250 of the state’s doctors.
• At least nine more states introduced bills to decriminalize possession of marijuana, and some have already cleared key legislative hurdles. Even an Alabama legislator has introduced a bill to legalize personal use of recreational and medical marijuana, and regulate hemp.
• Several new polls have found for the first time that a majority of Americans support legalization. Previous polls had shown overwhelming consensus that the United States is losing the War on Drugs, and that states should be allowed to decide whether marijuana is legal.

In spite of all these markers of progress, it is still unclear how federal officials will respond to state legalization measures. But their approach to state medical marijuana laws may be some indication. Just this week, the Drug Enforcement Administration raided several more Los Angeles marijuana dispensaries. Federal prosecutors have already shuttered dozens of city businesses that obtained local permits.

In the months after the passage of Washington’s ballot initiative to legalize and regulate marijuana, the state was on track to implement its licensing scheme for distributors and suppliers by the end of this year. But the Liquor Control Board said Wednesday that it has pushed back its timeline, meaning legal marijuana likely won’t be available until Spring 2014, according to the Associated Press. The Board said it would aim to issue licenses to both growers and distributors in December 1, rather than issuing growers’ licenses over the summer so that they could produce a product for suppliers by the end of the year.

Although Colorado and Washington’s recreational marijuana laws have already lifted penalties for possession of less than an ounce of pot, production and distribution will not be legal until the states set up rules and regulations for licensing. Proponents of the state laws view the states as laboratories in which new alternatives to the failed War on Drugs can be explored. But the expected benefits, including revenue generation and a decrease in the violent illicit drug trade, will not begin to accrue until there are mechanisms for a legal distribution system.

During a congressional oversight hearing Thursday, Attorney General Eric Holder once again dodged questions about how the Department of Justice will respond to the new state laws. He did say, however, that the Department of Justice is “certainly going to enforce federal law” and that the DOJ will consider laws’ the impacts on children as well as gang violence.

A bill to allow some medical marijuana use has passed the Maryland Legislature, and is awaiting the signature of Gov. Martin O’Malley. If O’Malley signs the bill as expected, Maryland would become the 19th state to legalize a medical marijuana program, in addition to the District of Columbia. The bill, however, is more limited than other state programs. It would authorize academic centers to administer marijuana through medical research programs that also study the effects of the drug, a structure O’Malley has called a “yellow light” approach since it doesn’t allow private medical marijuana dispensaries. It would also limit the number of centers that can disseminate marijuana and the number of patients per center, meaning that it may not cover many potential medical marijuana patients. What’s more, several of the state’s major universities – the University of Maryland Medical System and Johns Hopkins University – have already indicated they don’t plan to participate. In spite of the bill’s limitations, the program could facilitate more expansive research on marijuana – a development that could in turn help persuade the Drug Enforcement Administration to reconsider its designation of the plant as a dangerous drug with no accepted medical use. It will be a long road, however, as the program isn’t expected to go into effect until 2016.

Following successful ballot initiatives to legalize recreational marijuana in Colorado and Washington, a number of other states introduced medical marijuana bills this year, while others have considered bills decriminalizing possession or legalizing recreational use. Maryland already has a law that allows individuals arrested for marijuana to raise medical necessity as a defense if they possess less than an ounce, but a bill to decriminalize the drug died earlier this year.

In the Nation, Isabel Macdonald has an excellent long read on the history of U.S. drug testing, beginning with a government program to test returning Vietnam War veterans and the drug-testing provisions in President Ronald Reagan’s Drug Free Workplace Act as part of the misdirected War on Drugs. Even then, the medical community dismissed the Act’s provisions requiring all federal grantees to test employees as “chemical McCarthyism,” as well as unscientific and discriminatory, since it was more likely to capture days-old marijuana use than frequent consumption of cocaine or alcohol. But the movement nonetheless grew from an anti-drug campaign into an industry with its own trade association, after several moneyed interests like Hoffman-La Roche, the maker of Valium and sleeping pills, got into the business:

The company established one of the first major drug-testing labs in America and won an early urine-testing contract with the Pentagon, leading to $300 million in annual sales by 1987. The following year, Hoffmann-La Roche stepped up its sales efforts with the launch of a major PR and lobbying campaign to “mobilize corporate America to confront the illicit drug problem in their workplaces.” The drug manufacturer called its new campaign “Corporate Initiatives for a Drug-Free Workplace.”

Before long, with the help of a New Jersey–based lawyer named David Evans, Hoffmann-La Roche was organizing workshops around the country to convince employers to set up drug-testing programs. In an interview with The Nation, Evans likened his role to that of “a doctor coming in to talk about how to set up a medical device.” During that first campaign, 1,000 employers signed up.[…]

The drug-testing industry took aim at lawmakers as much as employers. Hoffmann-La Roche, for instance, worked “with federal and state government officials,” according to a press release issued by the PR company hired to market the campaign. Lerner told the press that the drug company also envisioned a “grassroots strategy” to prevent states from passing laws to decriminalize marijuana.

By 2006, 84 percent of American employers were reporting that they drug-tested their workers. Today, drug testing is a multi-billion-dollar-a-year industry. DATIA [Drug & Alcohol Testing Industry Association] represents more than 1,200 companies and employs a DC-based lobbying firm, Washington Policy Associates. Hoffmann-La Roche’s former consultant, David Evans, now runs his own lobbying firm and has ghostwritten several state laws to expand drug testing. Most significant, in the 1990s Evans crafted the Workplace Drug Testing Act for the American Legislative Exchange Council (ALEC), of which Hoffmann-La Roche was a paying member. Laying out protocols for workplace drug testing, the bill—which has been enacted into law in several states—upheld the rights of employers to fire employees who do not comply with their companies’ drug-free workplace program.

Over the past decade, lobbyists like Evans have focused on what a DATIA newsletter recently dubbed “the next frontier”—schoolchildren. In 2002, a representative from the influential drug-testing management firm Besinger, DuPont & Associates heralded schools as “potentially a much bigger market than the workplace.”

Because this drug testing tends to capture marijuana more than other drugs, proponents of the movement have increasingly demonized marijuana use most of all. Robert Dupont, who served as drug policy director under Presidents Richard Nixon and Gerald Ford, had advocated decriminalizing marijuana and its use a “minor problem” before he became a “drug-testing management” consultant. Then in 1978, he declared marijuana “in many ways” the “worst drug of all the illegal drugs,” later explaining in a PBS special that, “I realized that these public policies were symbolic—all that really mattered was you were for [the decriminalization of marijuana] or you were against it…. I think about it as a litmus test.”

Now, with fewer and fewer employers implementing drug tests because they have shown “no demonstrable return on investment,” the industry has turned to another lucrative market: those receiving public assistance and unemployment benefits. Several recently passed state laws that require public benefits applicants to take drug tests have been struck down by courts, but that hasn’t stopped other states from moving forward with random drug-testing provisions. In South Carolina in 2012, with unemployment still above 9 percent, state legislators pushed three different bills to drug-test the unemployed. And several other states have done the same in the wake of a federal provision that authorizes the tests. Of course, these laws propose testing for drugs consumed illegally without a prescription. So if those consuming marijuana for stress or trouble sleeping happen to turn instead to prescription use of another federally legal drug, such as Valium or sleeping pills, Hoffman-La Roche just happens to have profited twice over from the process.

In recent years, polls have shown that a majority of Americans think the United States is losing the so-called “War on Drugs” and that states should be allowed to decide whether marijuana is legal. Now, just months after the passage of two voter-approved state initiatives to legalize and regulate marijuana, a new Pew poll finds that for the first time, a majority of all Americans also think marijuana should be legal. The nationwide survey found that 52 percent support legalized marijuana, while 45 percent oppose legalization. Unsurprisingly, the strongest support comes from younger Americans, with 65 percent of Millenials age 18 to 32 in favor of legalization. The Pew Research Center for the People & the Press illustrates shifting public opinion on this question:

An overwhelming  72 percent now believe that government efforts to enforce marijuana laws have cost more than they’re worth, and some 60 percent  say the federal government should not enforce federal marijuana laws in states where it is legal. In medical marijuana states, federal authorities have continued to crack down on some distributors seemingly complying with state law. As Washington and Colorado move forward in implementing their new recreational marijuana laws, Attorney General Eric Holder has yet to announce the official Department of Justice policy, although he has said he will have an answer “relatively soon.”

A vast majority of those polled – 77 percent – also said they believe marijuana has a legitimate medical use, even though the Drug Enforcement Administration has remained steadfast in its position that the plant has no currently accepted medical use. Almost the same percentage of Democrats and Republicans hold that view. In fact, among those who reported they have tried marijuana in the past year, 47 percent said their use was recreational, while a significant 30 percent said it was solely for medical reasons. Another 23 percent said they used it for both. Only 38 percent of those polled consider marijuana a gateway drug.

Rhode Island became the 14th state to decriminalize possession of small amounts of marijuana on today, as a 2012 law begins to take effect. Under the new Rhode Island code, possession of less than one ounce of marijuana will be punishable only by a $150 fine akin to an expensive parking ticket, with no associated jail time.

Decriminalization effectively reduces the collateral consequences of the drug war, as even arrests for minor amounts can have life-altering effects. As The New York Times‘ Jim Dwyer put it in a critical review of New York City’s marijuana crackdown, “People regularly lose jobs for missing work as they wait to see a judge or because their employers do not want anyone connected with even minor drug offenses on the payroll…’They’re clogging the courts and ruining people’s lives, in terms of potential collateral consequences for housing, employment, immigration,’ said Steven Banks, the attorney in chief of the Legal Aid Society.” Dwyer also notes that the vast majority of people arrested for minor marijuana violations (nearly 90 percent in NYC) are black or Latino. Studies show that decriminalization of marijuana and other recreational drugs in Portugal was a success on both public health and crime prevention grounds.

While Rhode Island’s new policy will effectively reduce these unhelpful arrests (after California’s marijuana decriminalization law went into effect, youth crime dropped to levels unseen since 1954), it won’t address all of the drug war’s consequences. So long as the production and distribution of marijuana is illegal, gangs and cartels will remain the core providers, funding gang violence in the United States and the cartel war in Mexico that has claimed 60,000 lives in the past six years.

Decriminalization may only be Rhode Island’s first step in slowing down its state level drug-war. There’s currently a bill under consideration in the statehouse to fully legalize marijuana, something that 52 percent of Rhode Islanders (in one poll) support.

In the moments before the U.S. Supreme Court began its historic oral arguments in the challenge to California’s same-sex marriage ban, the court issued its decision in a case with very different but important constitutional implications.

In a 5-4 decision in which the justices split along unusual lines, the court led by Justice Antonin Scalia held that police sniffing around for drug activity cannot bring their drug dog to the front door of a private home without probable cause – usually a warrant. The case is the second in two years to affirm traditional property-based limits on government invasions of privacy, although in very different contexts.

In this case, detectives who received a tip that the defendant was growing marijuana in his home walked up to his front door with a drug dog by their side, and used the signals from the dog as the basis to obtain a search warrant and enter the suspect’s home. The crux of the justices’ disagreement comes down to whether Detective Bartlett’s chocolate labrador, Franky, was just another dog entitled to wander up to someone’s home, or whether his special olfactory skills and training made him more analogous to a pair of high-powered binoculars. Justice Elena Kagan explains in her concurrence:

As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners.  They are to the poodle down the street as high-powered binoculars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes, that as well.

Not so, said the dissenters, led by Justice Samuel Alito. Alito reasons that a dog’s sniffing skills have been used for centuries, and that if there were really a distinction to be made concerning drug-sniffing dogs, that case would have come up already. The dissenters – three conservatives with Justice Breyer as an unusual ally – also reject the reasoning by the concurring Justices Kagan, Sotomayor and Ginsburg that analogizes the drug dog case to the landmark Kyllo decision, in which the court rejected the use of thermal imaging technology to monitor a home. That case was about new technology, they said, and this case is about old tactics.

But whether using new or old technology, the nature of the surveillance by police is relatively new. Drug dogs are among the many tools of the 40-year-old drug war, and in the latest expansion of their use, we are seeing them creep into public schools. Last year’s case invalidating warrantless GPS monitoring, decided on similar grounds, was also a case about drugs. And many of the millions of newly aggressive stop-and-frisks by the New York Police Department resulted in arrests for nothing more than possession of small amounts of marijuana. In taking a sober look back at the strategies law enforcers justified at the height of the drug war, the invasiveness of police implementation will be just as important as the tactics themselves in determining both whether they pass Fourth Amendment muster, and whether they are tailored to meet public safety goals.

Sen. Rand Paul (R-KY) is one of America’s most radical ideologues. He endorsed a discredited, century-old Supreme Court decision that would give employers nearly limitless power to exploit their workers. He opposes bans on employment discrimination and on whites-only lunch counters. He backs nationwide anti-union legislation that would reduce both union and non-union wages by $1,500 a year. And he backs a dangerous constitutional amendment that would have doubled unemployment and caused the economy to shrink by 17 percent. Few, if any, politicians would do more harm to more people if given the opportunity to turn their preferences into law.

Which is why Democrats need to take his effort to outflank them on drug policy very, very seriously. In an interview with Fox News’ Chris Wallace this morning, Paul laid out an uncharacteristically sensible view of how the nation should approach drugs:

PAUL: The main thing I’ve said is not to legalize [drugs], but not to incarcerate people for extended periods of time. I’m working with Sen. Leahy. We have a bill on mandatory minimums. There are people in jail for 37, 50, 45 years for non-violent crimes. And that’s a huge mistake. Our prisons are full of non-violent criminals.

I don’t want to encourage people to do it. I think even marijuana is a bad thing to do. I think it takes away your incentive to work and show up and do the things you should be doing. I don’t think it’s a good idea. I don’t want to promote that. But I also don’t want to put people in jail who make a mistake. There’s a lot of young people who do this, then later on in their 20s they grow up and they get married and they quit doing things like this. I don’t want to put them in jail and ruin their lives.

Look, the last two presidents could conceivably have been put in jail for their drug use and I really think, you know, look what would have happened. It would have ruined their lives. They got lucky, but a lot of poor kids. particularly in the inner city, they don’t get lucky, they don’t have good attorneys, and they go to jail for these things, and I think it’s a big mistake.

Watch it:

Later in the same interview, Paul — a likely GOP presidential candidate in 2016 — is quite explicit about what he hopes to get out of staking out a sensible view on criminal justice: “someone like myself, I think, could appeal to young people, independents and moderates, because, many of them do think it is a mistake to put people in jail for marijuana use and throw away the key.”

Paul is right on both counts. Incarcerating people who commit minor drug crimes makes no sense, and his stance is a winning issue politically. In 2011, a poll found for the first time that fifty percent of the nation supports outright legalization of marijuana, compared to only 46 percent who oppose it. Among voters under 30, nearly two-thirds support legalization. Since this poll was taken, two states legalized marijuana for recreational use, and numerous others had previously legalized it for medical use. According to one poll, nearly three in four Americans believe the federal government should back off enforcement against people who comply with state marijuana laws.

So if Democrats cede this issue to the likes of Rand Paul, they will give up a powerful opportunity to engage with young voters — and potentially empower one of America’s most dangerous politicians in the process.

Of course, there is another, even more important reason why Democrats should work to liberalize America’s drug laws — Rand Paul is right that ruining people’s lives if they commit common youthful transgressions is immoral. But if Democrats cannot be moved to think sensibly on drugs because it is the right thing to do, the least they could do is think sensibly on drugs because it is in their selfish political interests to do so.