The Department of Justice announced a new policy Thursday in its approach to prosecuting marijuana offenses. While it remained committed to enforcing the federal prohibition on marijuana, it clarified that it would change its approach with respect to distributors and suppliers operating in states with their own marijuana laws. Compliance with comprehensive local laws and regulations that eliminate bad behavior, they said, would be a major factor in potential prosecution. It is unclear how much yesterday’s revised policy will change the behavior of U.S. attorneys, who retain discretion to implement the the policy as they see fit. But what is clear is that without the change, many medical marijuana providers paid the price for operating openly and in seeming in compliance with state law, and believe they were made an example of:
Matthew Davies, California, at least five years in prison: In January, facing criminal charges, entrepreneur Matthew Davies showed a New York Times reporter a “sheaf” of legal documents demonstrating he had complied with California law. He had a master’s degree in business, no criminal record, and two young children. He had hired accountants and compliance lawyers, applied for state and local permits, and paid California sales tax. But in January, his two dispensaries were raided, and Benjamin Wagner, the U.S. Attorney for the Eastern District of California threw a range of marijuana cultivation charges at him, as well as his co-owner and a marijuana warehouse grow operator. Prosecutors encouraged Davies to take a plea deal carrying a five-year mandatory minimum sentence. If he didn’t, they threatened to levy charges carrying another ten years in statutory minimum prison time. In charging him, Wagner called the case a case a straightforward prosecution of “one of the most significant commercial marijuana traffickers to be prosecuted in this district.”
After President Obama said in January that the administration has “bigger fish to fry” than targeting users in states where marijuana use is legal, Davies contacted Attorney General Holder with his case, pointing out that he was providing patients with medical marijuana and nothing more. In a letter to President Obama published on the Huffington Post, Davies’ wife, Molly Davies wrote, “We are confused and absolutely terrified.” But Holder’s aide just pointed to a letter from U.S. Attorney Wagner that said, “Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana.” Prosecuting those sorts of people, he said, “remains a core priority of the department.” In other words, running a successful, tax-paying, employee-hiring medical marijuana business was enough to make you a target for federal enforcement. The revised memo released Thursday officially changed that policy, directing: “prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities.”
Davies took the plea deal and faces a five-year mandatory minimum term in prison. His sentencing is September 27.
Chris Williams, Montana, five years in prison: Chris Williams was running a Montana medical marijuana dispensary that was considered a model of compliance with state law when his dispensary was raided by federal agents. Unlike his fellow dispensary owners, Williams did not take a plea deal, determined to take his case to trial. The very lowest mandatory minimum drug sentence was five years in jail. But these sentences can quickly ratchet up when other factors come into play. In Williams’ case, because he kept a gun on the premises, prosecutors were able to charge Williams with four counts of possessing a firearm in furtherance of drug trafficking, and he faced a sum total mandatory minimum sentence of 85 years. Williams was found guilty for distributing a drug that remains federally illegal. But in a rare move, U.S. District Court Judge Dana Christensen urged the parties to reach a post-conviction plea deal to avert the 85-year sentence. Prosecutors agreed to drop all the gun charges, leaving Williams with a five-year mandatory minimum sentence that he accepted in the hopes of seeing his 16-year-old son’s college graduation. As Christensen doled out the lowest sentence he could — five years — he lamented that even after his intervention, the prison term was “unfair and absurd.” While many other dispensary owners have brokered plea deals, others who have gone to trial have faced mandatory minimums of ten years.
Richard Flor, Montana, died in custody: Flor was one of several partners working with Chris Williams. A 68-year-old Vietman War veteran who suffered from diabetes, hepatitis C, and osteoperosis, Flor was also the first registered medical marijuana caregiver in the state of Montana. In 2012, he was sentenced to five years in prison. But four months in, while awaiting a transfer to a Bureau of prisons medical facility, he died behind bars shackled to a bed.
Jerry Duval, Michigan, ten years in prison: Jerry Duval was registered as a “caregiver” in Michigan, meaning he could grow marijuana for himself and other approved patients on his farm. Jerry used marijuana to treat symptoms from kidney and pancreas transplants, glaucoma, and neuropathy. Like many federal defendants, Duval was barred from presenting evidence of his compliance with state law during his trial. He was sentenced to a ten-year mandatory minimum, which he started serving in June. A spokesman for the U.S. Attorney’s Office said at the time, “We never treated this case as a medical marijuana issue. It was basically a drug and gun case.” Under public pressure, the Bureau of Prisons agreed to place Duval in a federal medical detention facility that could treat Duval’s ailments. The detention could cost more than $1.2 million.
Harborside Health Center and Berkeley Patients Group, northern California, doing battle with the feds to preserve their assets: In addition to criminal charges, some large medical marijuana dispensaries are facing shutdown through a mechanism known as civil forfeiture, which allows the government to seize the assets of entities it alleges are engaging in illegal activity. The self-described largest medical marijuana dispensary in the world, Harborside Health Center, has successfully fended off forfeiture attempts for several years, with the recent assistance of the city of Oakland, where one of its two facilities is housed. U.S. Attorney Melinda Haag, who has pursued this tactic aggressively, recently initiated forfeiture actions against several other dispensaries, including Berkeley Patients Group, that city’s largest dispensary and one of just a few sources of medical marijuana in the city. The city of Berkeley has also intervened in legal action against the dispensary.