The End of Hysteria and the Last Man

Will the Justice Department's new medical marijuana policy save Charlie Lynch?


Last week Attorney General Eric Holder said the federal government would stop prosecuting medical marijuana distributors who comply with state law. Drug policy reformers immediately wondered how the change would affect Charlie Lynch, who last year was convicted of five felonies for helping California patients alleviate their suffering with marijuana. Evidently the judge charged with sentencing Lynch is wondering the same thing.

On Monday, when Lynch was scheduled to be sentenced, U.S. District Judge George Wu said he needed more time to consider the meaning of the Justice Department's new policy. Now that the Obama administration has promised to respect state medical marijuana laws and leave people like Lynch alone, the injustice of sending him to prison is even more glaring.

Since mid-2006, the Drug Enforcement Administration has raided at least 80 medical marijuana dispensaries in California. During his campaign, Barack Obama repeatedly said he would end the raids, and last week his attorney general gave the clearest sign yet that the president intends to keep that promise. "The policy is to go after those people who violate both federal and state law," Holder said.

Lynch, who is now scheduled to be sentenced on April 30, does not seem to be one of those people. He openly ran a medical marijuana dispensary in Morro Bay for a year, with the sanction of state law and the support of local officials, before the DEA closed it down. Last August he was convicted of five distribution and conspiracy charges that carry combined penalties of five to 85 years in prison.

After the verdict, the jury forewoman said "we all felt Mr. Lynch intended well," but "under the parameters we were given for the federal law, we didn't have a choice." In letters to Judge Wu, two other jurors have described the case as a miscarriage of justice, saying they felt constrained to convict Lynch because they were told state law was irrelevant.

Lynch's story—including his cooperation with local officials, his inability to discuss the medical use of marijuana at his trial, and the regretful jurors—is reminiscent of the case against Ed Rosenthal, who grew marijuana for patients under an arrangement with the city of Oakland. Rosenthal was convicted on federal drug charges in 2003 and again in 2007, after an appeals court overturned the first verdict because of juror misconduct.

Like Wu, U.S. District Judge Charles Breyer, who presided over Rosenthal's case, refused to allow any explanation of the defendant's motivation, since federal law recognizes no legitimate use for marijuana. And like Lynch, Rosenthal faced a mandatory minimum sentence of five years. But in a surprising turn, Breyer sentenced Rosenthal to one day, which he had already served.

Breyer's leniency was based on his conclusion that Rosenthal had honestly and reasonably believed he was acting within the law. Thus Breyer essentially took into account at sentencing the defense he had not allowed during the trial.

Breyer's legal rationale was a "safety valve" provision that allows departures from the five-year mandatory minimum sentence for growing or distributing more than 100 kilograms of marijuana. This provision applies to cooperative defendants with minimal or no criminal histories who do not possess a firearm, threaten or commit violence, cause death or serious injury, or play a "leadership role."

Since Lynch had employees at his dispensary and was convicted of conspiracy, meeting that last criterion might be tricky, but otherwise he seems to qualify. In Rosenthal's case, the federal appeals court implicitly approved the one-day sentence in a footnote to its decision ordering a retrial.

Unlike Rosenthal, who faced a vindictive Justice Department that unsuccessfully challenged his sentence and then tried to pile on new charges in his second trial, Lynch faces a Justice Department that ostensibly understands the merits of federalism in this area. Assuming Obama is serious about letting states set their own medical marijuana policies, there will be no one to second-guess Wu if he finds a way to keep Lynch out of prison.

© Copyright 2009 by Creators Syndicate Inc.


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  1. I may be wrong about this, but isn’t there a lot of power afforded a jury in interpretation of a law? In other words, if a law is considered to be unjust by a jury of your peers, they can vote the defendant innocent even if he is guilty. Isn’t this what happened constantly during the prohibition years?

  2. Since I don’t have any of the medical conditions that Marijuana is said to help, and I don’t personally like the stuff, I am only distantly concerned with this issue. Maybe that’s why I’ve noticed that if Obama intends to actually alter the law, it isn’t being mentioned. This bothers me. Politicians who make it their policy to refrain from enforcing a bad law rather than to change it have a tendency to use the un-enforced laws as a handy club to beat on people they don’t like. I suppose that all stripes of political hack are prone to this, but honestly I notice it more on the Left than the Right (the Right has its own vices). A fondness for laws that can be selectively enforced on the unrightious has been a feature of every fascist-collectivist regime of the Twentieth and Twenty-First centuries .

  3. @E.S.

    You are referring to “jury nullification”, and the system is set up so that it happens as little as possible. Jurors are not informed that it is their right to do this, and those who have disagreements with the law are usually weeded out from the jury pool by the DA.

  4. Last week Attorney General Eric Holder said the federal government would stop prosecuting medical marijuana distributors who comply with state law.

    Not exactly. He said that it wouldn’t be their focus. As always, this is “governance” by loopholes and non-binding press releases.

    I’m not ruling out real change, I’m just saying it hasn’t happened yet.

  5. One wonders if this “government by loophole” is a tactic to keep Dems in power. “Don’t vote for those elephant guys; the drug war laws are still on the books; they’ll go right back to enforcing them!”

    This may lead to an amazing result: GOP legislators passing a law to end the drug war, perhaps eliciting a veto from President Obama, in order to maintain the “government by loophole” status quo.

  6. If Judge Wu can find a clause that allows him to release Lynch, so much the better. Obama could also pardon Lynch. For that matter, when is Obama going to parten hemp dispensory owners that are already in jail? When are we going to legalize medical marijuna on the federal level so we don’t have to rely on clemency.

  7. It is misleading to refer to jury nullification as a “right.” It is a lawful prerogative of the jury, certainly.

    Rights, at least in criminal cases, belong to the defendant. The government has powers, not rights. The issue of whether jurors have “rights” or “powers” has sidetracked many an otherwise valuable discussion. It is also wholly irrelevant, as jurors cannot be punished for their verdicts.

    Courts do not recognize jurors as having a right to nullify, and more importantly do not recognize defendants as having a right to a jury that has been instructed about their option of nullification. Courts do, however, recognize that juries may do so if they choose to — unless the court finds out first. This discussion can take days to unravel, and is, if not wholly circular, at the very least elliptical.

    So we can get bogged down in the rights/powers dichotomy, or simply acknowledge that this is a lawful prerogative of the jury. Then the question becomes: when should jurors exercise their prerogative, and how should they find out about it? That discussion can be productive.

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