Why Not Two Days Instead of 366?

As I predicted/hoped, U.S. District Judge George Wu used the "safety valve" for nonviolent, low-level drug offenders to avoid imposing the otherwise mandatory five-year sentence on Charlie Lynch, former operator of a medical marijuana dispensary in Morro Bay, California. The only thing that might have prevented Wu from using this provision was a determination that Lynch had acted as a "leader" of a criminal enterprise, and Wu decided that he hadn't. At the same time, Wu said he felt constrained to impose a sentence of at least one year because a cancer patient whose parents brought him to the dispensary was under 21, triggering a provision of federal law that doubles the sentence that would otherwise apply.

As I noted in a column a few months ago, Wu's role in Lynch's case is reminiscent of U.S. District Judge Charles Breyer's role in the case against medical marijuana grower Ed Rosenthal. Both judges ruled that federal law barred the defense from discussing the medical use of marijuana or the state law permitting it, a restriction that pretty much guaranteed convictions. Yet both strove for leniency in the sentencing phase, taking advantage of the safety valve. Instead of the five years corresponding to the amount of marijuana involved, Rosenthal got a day, while Lynch got a year and a day.

Wu seemed especially troubled by the fact that Lynch was convicted before the Justice Department announced that it would no longer prosecute medical marijuana distributors who comply with state law. After the department told him the new policy did not let Lynch off the hook, Wu did the best he could to mitigate the penalty. Or maybe not. Since the Supreme Court has ruled that federal sentencing guidelines (as opposed to mandatory minimums set by statute) are merely advisory, it seems like Wu could have chosen a very short sentence, as Breyer did, and then doubled it, as required by the provision dealing with distribution of drugs to minors. Maybe I'm missing something.

Although Reuven Cohen, Lynch's attorney, predicts this will be one of the last federal prosecutions of medical marijuana providers, the Justice Department's new policy leaves the door open to prosecuting people like Lynch in the future. Since Lynch's arrest, the California Supreme Court has ruled that people who supply patients with marijuana have to be bona fide "primary caregivers" who help the patients in other ways; patients can no longer simply designate whoever sells them marijuana as their primary caregiver. The future of legal dispensaries therefore seems to lie in patient-run cooperatives, since patients are allowed to grow and possess marijuana for their own use. Dispensaries that don't follow that model will be vulnerable to federal raids even under the Obama administration's more tolerant approach. And that's leaving aside the possibility that the DEA will latch onto any alleged violation of state law, whether or not the law has anything to do with medical marijuana, as an excuse for raids.

Go here for the latest Reason.tv coverage of the Lynch case.

Addendum: This week the House Appropriations Committee approved an amendment requiring the Justice Department to clarify its policy regarding medical marijuana cases. The measure, part of an appropriations bill, was introduced by Rep. Maurice Hinchey (D-N.Y.), who in the past has sponsored legislation that would have forced the DEA to stop its medical marijuana raids. "I've been greatly encouraged by President Obama and Attorney General Holder's public statements in support of states determining their own medical marijuana [policies]," Hinchey said, "but remain concerned about the matter since the federal government has still continued raids in states that permit the use of marijuana for medicinal purposes."

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  • ||

    If you get sentenced to a year in prison on January 15 of a leap year, do you get out on January 14 of the next year or do they make you stay the extra day. That wouldn't seem fair. With my luck I'd get raped with a windshield wiper blade on the last day.

  • ||

    windshield wiper blade? you think they got those in prison? nah... a rusty metal bed spring would be the more likely source of the raping. ha!

  • zoltan||

    patients are allowed to grow and possess marijuana for their own use

    Oh, man, I'm waiting for the positive biopsy! (Please no one get offended.)

  • Abner MacGillicuddy||

    Tulpa

    "A year" for the purposes of jail or probation time is 365 days in most places. So, yes, a leap year will mean your release date will shift.

  • ||

    And that's leaving aside the possibility that the DEA will latch onto any alleged violation of state law, whether or not the law has anything to do with medical marijuana, as an excuse for raids.

    I have very low hopes for this. Regardless of the fact that Obama is the DEA's boss and can theoretically tell them to cut the shit, big agencies have inertia and internal culture, and they have influence. The DEA will not want federal raids to stop, because it reduces their power, and their internal culture is undoubtedly one of "we're the thin line between the drugz and the childrenz".

    Obama would have to get really forceful with them to seriously reduce any of this, and that's assuming he gives a shit. But then he can be attacked as soft on drugs. So he won't do much more than a nudge here and there, and the DEA gets to keep on doing its thing most of the time.

  • ||

    Hinchey for Senate!

  • ||

    Lynch will serve less jail time under a 366-day sentence than a 364-day sentence.

    Under federal sentencing rules, prisoners are only eligible for "good behavior" reductions if their original sentence is longer than one year. By sentencing Lynch to a year and a day, he guarantees that Lynch serves a good amount less than a year.

  • ||

    He'll serve longer than 2 days though, right chuck?

  • John C. Randolph||

    Wu said he felt constrained to impose a sentence of at least one year

    The bastard didn't feel constrained to let Lynch present his defense though, did he?

    That SOB should be bounced off the bench and disbarred.

    -jcr

  • ||

    Regardless of the fact that Obama is the DEA's boss and can theoretically tell them to cut the shit,

    ...and the fact that he promised to do exactly that during the campaign...

    -jcr

  • baldanders||

    Though I'd rather he didn't serve any time at all, a year and a day is an awful lot less bad than 5 years. The discrepancy between state law and federal law here makes no sense, but even in cases where there isn't a medical marijuana exemption there is still a pretty big disparity in sentencing between some states and the feds.

    Actually, my best friend just got popped for cultivation. To hear the cops (and the newspapers) tell it you would think he was some sort of drug kingpin- the reality is that he just got a little carried away with what was primarily meant as a personal operation (and really fucking stupid in terms of tradecraft.) He's lucky though- the feds were not involved so he'll probably get away without serving any time. If the feds had been involved he would be going away, no doubt about it. Seems kind of weird to me that the penalty can vary so much based on who busts you.

  • The Angry Optimist||

    The bastard didn't feel constrained to let Lynch present his defense though, did he?



    Constrained...a word neither you nor Wu know the meaning of.

    "Are you with me, Dr. Wu..."

  • ||

    baldanders, the fact that you knew he was growing indicates he violated Rule 1:

    Don't. Fucking. Tell. Anyone.

  • baldanders||

    "baldanders, the fact that you knew he was growing indicates he violated Rule 1:"

    Yeah, I was pretty appalled about the whole thing, actually. Letting me know about it was the least of his problems- definitely against Rule 1, but not actually that dangerous. He made bigger mistakes than that.

    I mean- it has been many years since I intentionally committed a felony (long enough for the statute of limitations to have run out on anything I might or might not have done), but I was always very very careful about things. Eventually I came to the conclusion that even with perfect care I couldn't keep the risk/reward ratio anywhere near what I was comfortable with, so I started walking the straight and narrow.

    Appalled, but not entirely surprised. One of the mistakes that I made that put the fear of God into me was doing some things involving this guy and having him put me in what felt like a dangerous position. I mean, I have no patience for the "well, he knew the risks so he deserves whatever he gets" routine, but at a certain point reality is fucking reality. A friend's kid got popped for growing for the second time in two years a while back, and... I mean, I just don't get it. The first time you get nailed that should be a clue that you just aren't cunning enough to do that kind of thing successfully.

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