At times, the success of a criminal defense does not lie in denying the obvious, but rather in redefining the defendant’s ultimate fate. Recently, at Fukuro Legal, we succeeded in transforming an imminent sentence of nearly four years’ imprisonment into the immediate removal of the defendant from Spanish territory.
Our client, a U.S. national, was intercepted during a routine inspection after landing in Madrid while carrying in his luggage a quantity of marijuana that far exceeded the statutory threshold of “notorious significance.” The strength of the incriminating evidence and the circumstances of the seizure left little room for a defense strategy based on denying authorship, which compelled us to focus the legal debate on the classification of the degree of unlawfulness and culpability. The conduct fell within the scope of a one-off cross-border transport operation, in which the defendant acted merely as a courier, lacking any infrastructure, means of distribution, or contacts within Spain that might suggest the existence of an organized structure or professional involvement in illicit trafficking.
Against this backdrop, our defense strategy was articulated through reliance on the mitigated subtype provided for in Article 368(2) of the Spanish Criminal Code and the application of substitutionary deportation contemplated in Article 89 of the same statute. We argued that, notwithstanding the large quantity seized, the offense was of limited gravity given its exceptional nature and the absence of any relevant criminal dangerousness on the part of the defendant.
This interpretation was not initially shared by the Public Prosecutor’s Office, which, despite consolidated case law, denied the compatibility between the aggravation based on quantity under Article 369(1)(5) and the circumstantial mitigation under Article 368(2). Likewise, the prosecution did not, prima facie, consider that the circumstances of the offense or of the offender justified a reduction in the seriousness of the conduct or culpability, and maintained that the accused should serve in Spain at least two thirds of the prison sentence in order to avoid any potential effect of impunity.
In response, we submitted extensive documentary evidence concerning the defendant’s personal circumstances, with the aim of demonstrating reduced criminal blameworthiness and situating the penalty within a framework that would allow for an effective criminal response outside the Spanish penitentiary system.
However, the cornerstone of our defense strategy was substitutionary deportation, conceived as a specific criminal-law response designed for foreign nationals lacking roots in Spain. The legislature establishes that where the imposed sentence exceeds one year of imprisonment, the general rule must be deportation from national territory, unless exceptional reasons exist to justify the effective serving of the sentence in Spain. From this perspective, substitutionary deportation operates as a genuine instrument of penal economy. That is, where the convicted person lacks personal, family, or social ties within the national territory, incarceration in a Spanish prison loses much of its rehabilitative and preventive purpose, becoming a sterile cost to the State that adds no real value to collective security.
We argued that the immediate execution of deportation fully satisfied the aims of punishment, insofar as the deprivation of freedom of movement, the stigma associated with acquiring a first criminal record, and the prohibition on re-entering Spain for a prolonged period constituted a sufficiently severe and dissuasive penal reproach. To support this position, we recalled that the statutory framework requires an enhanced proportionality assessment in order to deny full deportation; unlike the mitigated subtype, the burden rested on the prosecution to justify why the effective serving of the sentence in Spain was strictly necessary to restore confidence in the validity of the legal norm.
In our client’s specific case, we demonstrated that his role in the illicit trafficking was peripheral and contingent, easily replaceable within the distribution chain. He would be returning to a country outside the traditional drug-trafficking routes with Spain. Maintaining the incarceration of such a contingent actor would not contribute to dismantling organized criminal structures, but would merely impose an additional burden on the Spanish penitentiary system, with scant prospects for effective social reintegration outside his natural environment in the United States.
Ultimately, the agreement reached in court entailed the full validation of this defensive approach. A plea agreement was formalized providing for the total and immediate deportation of the defendant, substituting the entire prison sentence of more than four years with mandatory removal from Spanish territory and the imposition of a five-year ban on re-entry into Spain. This outcome now allows our client to return immediately to the United States with no outstanding obligations before the Spanish justice system.
If this case demonstrates anything, it is that—as we frequently observe at the firm—when dealing with clients who lack ties to Spain and are involved in criminal conduct offering little room for factual dispute, substitutionary deportation emerges as an optimal solution. It allows for the reconciliation of the defendant’s interests with the effective enforcement of criminal law, avoiding both the profound personal impact of years of imprisonment and the substantial costs such incarceration entails for the State.
At Fukuro Legal, we warmly welcome this result, as it reflects an approach to criminal law grounded in rigorous analysis of the specific case and in the pursuit of proportionate and effective solutions. Cases such as this reinforce our conviction that a technically sound, humane, and strategically well-oriented defense can deliver just outcomes even in complex scenarios.
