The Obama administration is giving mixed signals on its pot policies despite a tidal shift in social views on legalizing marijuana.
Fully 80 percent of Americans approve of the use of marijuana for medicinal purposes, and fewer than one in five favor locking up non-violent adults who use pot in general. But since the inception of the disastrous “War on Drugs,” politicians from across the political spectrum have found that being a dedicated drug warrior is an easy way to appear “tough on crime” without much political risk.
The result of that divide is a truly schizoid patchwork of laws regulating the use of cannabis. Several states have decriminalized the possession of small amounts of weed -- most recently Massachusetts this year -- and 13 states have legalized medical marijuana. Yet each and every year we continue to lock up three-quarters of a million Americans for possession of marijuana and waste an estimated $14 billion on our misguided prohibition of a cash crop that’s worth more than wheat and corn combined.
The Obama administration has sent markedly mixed signals about whether it would continue the most regressive element of the “Drug War” -- Bush’s policy of going after medical marijuana providers in the states that have legalized the industry.
Bush turned federal law-enforcement into a de facto White House veto over state-level drug laws (and, often, over the will of the people -- 8 of the 13 states that permit the use of medical marijuana got there through a referendum process). It’s clichéd to describe the more labyrinthine corridors of our legal system as “Kafkaesque,” but the way Bush did it would draw a knowing sigh from old Franz.
Officially, in states where they’re legal, the federal government only goes after medical marijuana operations when they violate both federal and state law. Officially. But after the DEA raids these shops, their owners are prosecuted in federal courts, and they need only be charged under federal laws. And here’s where it goes from bad policy to simple insanity: thanks to a 2005 Supreme Court decision in Gonzalez v. Raich, defendants are prohibited from entering evidence at trial that they were in compliance with local and state laws when they were busted.
Then, if convicted, these operators of businesses that are legal in their respective states face harsh mandatory drug sentences in the federal justice system -- long minimums that Congress required in the 1980s ostensibly to deter “drug king-pins.”
That’s the situation Charles Lynch is looking at. Lynch is facing up to 20 years in prison after being convicted under federal law for running a medical marijuana clinic in Morro Bay, California. Before DEA agents busted him, Lynch had been in business for 11 months. According to the Los Angeles Times, the clinic had “the blessing of the city's mayor and other public officials” -- including the city’s Chamber of Commerce. Morro Bay City Attorney Rob Schultz said that he had received only one complaint about Lynch’s operation in that time -- and that was from someone griping about the quality of the pot Lynch sold. The town’s mayor, Janice Peters, described Lynch as “polite, compassionate,” and at an April 23 sentencing hearing Steven Beck, the father of a 17 year-old suffering from bone cancer who, following the advice of his oncologist, had bought marijuana from Lynch’s clinic to treat the side-effects of chemo-therapy, told the court that Lynch had often given the boy pot for free. After describing how the teen “could not eat. He could not sleep. His personality became dark and angry," Beck added, "I never felt as though Charlie was there for the money."
Federal prosecutors charge that Lynch violated California’s medical marijuana law because he wasn’t a primary care-giver, but Joe Elford, Chief Counsel for Americans for Safe Access, a medical marijuana advocacy group, said, “there is not even any evidence that state law was violated." Elford added, "It's disingenuous to accuse people of state law violations and then prosecute them under federal law, thereby denying them an adequate defense in federal court."
While medical pot operators can’t use their compliance with state laws as a defense, it can be brought up at sentencing as a mitigating factor. On April 23, District Court Judge George Wu, a Bush-appointee, said that he was inclined to impose a sentence less harsh than the mandatory minimum, but it wasn’t clear that the law would allow him to do so (there is a so-called “safety-valve” in the mandatory sentencing scheme that allows judges leeway in certain circumstances, but Wu was unsure whether Lynch’s case qualified). "If I could find a way out, I would," Wu said. He gave lawyers until June 2 to file briefs on the matter.
Lynch’s case is seen as a test of whether the Obama administration will reverse the Bush Justice Department’s policy towards medical marijuana, and so far the signals have been decidedly mixed.
In March, the New York Times reported that Attorney General Eric Holder had “outlined a shift in the enforcement of federal drug laws, saying the administration would effectively end the Bush administration’s frequent raids on distributors of medical marijuana.” Holder said the “Justice Department’s enforcement policy would now be restricted to traffickers who falsely masqueraded as medical dispensaries and ‘use medical marijuana laws as a shield.’”
A week later, a San Francisco dispensary was raided by the DEA. In early March, the Los Angeles Times reported, “the U.S. attorney in Los Angeles sent a confidential memo to prosecutors last week ordering them to stop filing charges against medical marijuana dispensaries, then abruptly lifted the ban.”
The conflicting signals prompted Judge Wu to ask for guidance from the Justice Department before proceeding with Charles Lynch’s case. The DOJ responded with a memo saying, “the Office of the Deputy Attorney General has reviewed the facts of this case and determined that the investigation, prosecution, and conviction of defendant are entirely consistent with the policies of DOJ and with public statements made by the Attorney General with respect to marijuana prosecutions.” But, again, Charles Lynch wasn’t charged with violating California law.
If this seems a mess of contradictory statements and actions, that’s because it is. Yet marijuana reform advocates caution that it’s premature to judge the young administration’s policies. Carey Woodson of Americans for Safe Access told the Drug War Chronicle, “I think it's confusion --- it's important to remember that we aren't even close to having the appropriate Obama officials seated at this point.” (This was before the San Francisco raid).
But in a country that imprisons hundreds of thousands of people each year for simple possession -- for a “crime” that 4 out of 10 adults have committed -- it bears close scrutiny. So far, we haven’t seen the change that we were promised.
By Joshua Holland
April 28, 2009