'Incredible Is What the Law Requires'

This week U.S. District Court Judge Marilyn Patel sentenced medical marijuana activist Eddy Lepp to a 10-year mandatory minimum prison term for openly cultivating cannabis near a state highway in Northern California. Lepp maintained that he was growing the marijuana for patients who are legally permitted to use the drug under state law, but (as usual in these cases) he was not allowed to mention that at his trial, since it does not matter under federal law. Lepp's attorney called the 10-year sentence, which was dictated by statute for cultivation of more than 1,000 plants, "incredible," to which Patel replied, "Incredible is what the law requires."   

Comments

[John]

McHopey could pardon this guy today. Unless and until he does, I don't want to hear any bullshit about how the Dems are better than the Republicans on the drug war. They are both equally bad.

[Nick]

When the The Law and Justice part ways?

[JB]

'Incredible' are the people like Judge Patel who think the law means anything in this country.

When hypocrites like Spitzer don't do prison time, then no one else should be doing time for victimless crimes.

[Episiarch]

Does anyone believe that if a politician or cop got busted for a crime that had a mandatory minimum, that it would actually be applied? At the very least, the prosecutor would allow them to plea bargain to something without the minimum, or a lesser one.

[Mike Laursen]

Well, snap. Isn't Judge Patel handy with the quick comebacks.

[Xeones]

Yo, fuck Marilyn Patel.

[Lamar]

"McHopey could pardon this guy today. Unless and until he does, I don't want to hear any bullshit about how the Dems are better than the Republicans on the drug war. They are both equally bad."

Seconded.

And, FYI, Judge Patel nearly always gets it wrong.

[J sub D]

Fortunately for Eddy Lepp, the POTUS has already said that medical marijuana providers will no longer be targetted by federal agents. Being the politically brave and morally consistent leader that he is, Obama will undoubtably use his constitutionally provided pardon power to overturn this injustice. Probably tomorrow.

HaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHa

[The Angry Optimist]

Before everybody leaps down the Judge's throat about, I'm open to hearing what you think she should have done.

Violated the law?

[The Chad]

Epi, you gave me a great idea! Become a politician, then start my enormous grow-opp. Then, when the fed busts me, I'll get a slap on the wrist then use my case to push for legalization!

[kinnath]

Before everybody leaps down the Judge's throat about, I'm open to hearing what you think she should have done.

Resignation would be appropriate

[Lamar]

"Before everybody leaps down the Judge's throat about, I'm open to hearing what you think she should have done."

A downward deviation from the mandatory minimum based on Mr. Lepp's "substantial assistance" to the government regarding drug violations. But we're talking about Patel, and she's just not a risk taker. In fact, she's kind of a bitch.

[Episiarch]

Become a politician, then start my enormous grow-opp.

Why bother? Once you enter the parasite class, you can steal the people's money and take bribes. Why would you start an honest business?

[CaptainSmartass]

The Angry Optimist | May 22, 2009, 1:08pm | #
Before everybody leaps down the Judge's throat about, I'm open to hearing what you think she should have done.

Violated the law?

Um, yes. Then told Congress to go fuck themselves and reread the Constitution, especially the part about separation of powers.

[That Other Alan]

Agree with Optimist. Mandatory minimums take the judge out of equation as far as sentencing goes. Patel may have sounded flippant, but it could also be interepreted as "I agree this law sucks, but its out of my hands."

Did Lepp attempt a plea-bargain with the prosecutor? Once he was convicted, what he was expecting as far as sentencing, considering the mandatory minimum? The real villian here is the D.A for prosecuting in the first place.

[The Angry Optimist]

Riiight...sounds like a lot of armchair quarterbacking and putting someone else's neck on the line.

And, like it or don't, Cpt. SA, there's nothing unconstitutional about the CSA or its mandatory minimums. It's incumbent on the legislature to change it.

[prolefeed]

Before everybody leaps down the Judge's throat about, I'm open to hearing what you think she should have done.

Violated the law?

Take the prosecutor and defense attorney into chambers, then read the prosecutor the riot act, saying that their actions in pursuing this case is in clear violation of the publicly stated views of POTUS on the role of federal marijuana laws versus state laws, and arguably based on unconstitutional federal laws.

And then, if the prosecutor continues to prosecute the case, defer decision-making on the case and release the defendant on their own recognizance while the judge writes a blistering letter to the justice department demanding written clarification of the AG's position on the sovereignty of federal vs. state marijuana laws.

Basically, the judge could have heaped all sorts of political pressure on Obama to administratively nullify the federal law.

This, of course, is why I'm not in any danger of being appointed as a judge by McHopey ...

[Lamar]

"Patel may have sounded flippant, but it could also be interepreted as "I agree this law sucks, but its out of my hands."

Except that she told the guy he just wanted to be a martyr to the cause. No, Patel gets off on punishment, regardless of the politics of the matter.

[Jefferson Davis]

And, like it or don't, Cpt. SA, there's nothing unconstitutional about the CSA

You are correct, Suh!

[Zeb]

"there's nothing unconstitutional about the CSA or its mandatory minimums"

Oh, right. Because growing and consuming cannabis in California is interstate commerce.

[John]

The judge should have ignored the sentencing guidlines as being cruel and unusual punishment in this case. She is entirely within her rights to do so. Yes, the government would have appealed and probably won. But at least the blood woulnd't be on her hands. It is called an act of conscience.

[J sub D]

Um, yes. Then told Congress to go fuck themselves and reread the Constitution, especially the part about separation of powers.

And told the SCOTUS as well, right?

TAO is right, this ain't the judges fault. She is legally and morally obligated to follow established law or resign. She resigns and the next judge gets the case and sends the guy to prison for at least ten years.

[Mr. Bumble]

If the law requires that, the law is a ass -- a idiot.

[libertymike]

TAO-

You are wrong again, today. There is nothing in the text of the constitution that supports the proposition that the federal government has the right to prohibit the cultivation of mj or that the feds can prosecute cultivators of mj where a state has specifically permitted it.

The judge would have been well within the law in dismissing the action and sparing the guy and the tazpayers all of the ensuing agony.

[The Angry Optimist]

Oh, right. Because growing and consuming cannabis in California is interstate commerce.

Unfortunately, yes, so throwing a temper-tantrum and telling all three branches of the Federal Government to read the Constitution is one of the dumber things I've heard. The Constitution was read (incorrectly, IMHO) and interpreted and this was what we have.

[The Angry Optimist]

There is nothing in the text of the constitution that supports the proposition that the federal government has the right to prohibit the cultivation of mj or that the feds can prosecute cultivators of mj where a state has specifically permitted it.

Wickard v. Filburn, interpreting the commerce clause. You might as well be beating your head against the wall or screaming into the wind for all the good you're doing.

[P Brooks]

Before everybody leaps down the Judge's throat about, I'm open to hearing what you think she should have done.

She's helpless. I'm sure this just totally came at her out of nowhere. If only she had known about mandatory minimum sentences sooner.

[kinnath]

TAO is right, this ain't the judges fault. She is legally and morally obligated to follow established law or resign. She resigns and the next judge gets the case and sends the guy to prison for at least ten years.

First Patel resigns and is replaced. Then the replacement resigns and is replaced. And so on.

The judiciary is the last defense against the tyranny of bad legislation.

[libertymike]

TAO-

How do you think the Lew Rockwell, antistate and striketheroot crowd would feel about this one?

[John]

"She is legally and morally obligated to follow established law or resign. She resigns and the next judge gets the case and sends the guy to prison for at least ten years."

She doesn't have to resign. She can write a thoughtful opinion explaining how in this case the sentencing guidelines as applied are cruel and unusual punishment. Then she could sentence the guy to some minimal punishment and send it to the appellate courts. Her failure to do so says that she beleives in the guidlines or at the very least doesn't view them as particularly unjust or immoral.

[Lamar]

"TAO is right, this ain't the judges fault. She is legally and morally obligated to follow established law or resign."

She could have used the government assistance exception and made it plausible (though it would have been reversed). And "morally obligated"? She may be LEGALLY obligated by precedent and statutes (not sure that's true), but she is MORALLY obligated to reduce the sentence. That's why this is a tough case. Her moral obligations conflict with her sexual attraction to punishing everybody, er, her obligation to follow the law.

[John]

For all of you who say she had to resign or give the sentence, that is bullshit. She is a life time tenured judge. Nothing would have happened to her if she had ignored the guidelines. At worst she would have been overturned and scolded by a higher court. If the woman had any moral fibre she would have done the right thing and told the apellete court to get bent.

[Lamar]

The fact is that Patel had options, but she believes in the sentence. Maybe you believe in the sentence too. Fair enough. But I've been a lawyer long enough to know that judges are rarely "constrained" by the prevailing view of the law, especially if that view is controversial.

[libertymike]

TAO-

That case was decided in 1942. By the New Deal, stitch in time saves nine court. Not the framers. Duh. I referred to the text itself, not some communist malignment thereof.

[John]

"That's why this is a tough case. Her moral obligations conflict with her sexual attraction to punishing everybody, er, her obligation to follow the law."

LOL. It is not a tough case at all. It wouldn't bother me a bit to tell DOJ and the 9th Circuit to fuck off. But that probably explains more about why I will never be appointed a federal judge than it does about this case.

[libertymike]

She is obligated to uphold the constitution, as it was written and intended, not as mangled by the Supreme Court. Obeying precedent is not a constitutional command. It is a judicial doctrine-one that the constitution does not authorize.

[The Angry Optimist]

LM, frankly, I don't give a shit about *your* reductionist view of the Constitution.

Unless, of course, you think that we should still hang robbers because that's not "cruel and unusual" punishment under the Eighth Amendment.

[kinnath]

For all of you who say she had to resign or give the sentence, that is bullshit.

I didn't say she had to resign. I said it was an appropriate response given the mandatory minimum sentencing guidelines.

Mass resignations are one of the few judicial actions that might actually lead to a reversal by the legislature.

[chorus]

libertymike, go fuck yourself

Even if you're right, you're too big a prick to be worth paying attention to.

[The Angry Optimist]

I'm *sure* all of you castigating the judge have taken the time to contact your representative or Senator and encourage them to change or repeal the CSA.

Right...guys? RIGHT?

[cockburn]

"The judge would have been well within the law in dismissing the action and sparing the guy and the tazpayers all of the ensuing agony."

And then it would have gone to the Supreme Court where they would have ruled, probably 7-2, that Judge Patel was wrong in dismissing the case. And then all that would have happened would have been that the guy and taxpayers would have to endure more agony by way of a new trial (and the expense of the appeal) and the judge would have on her resume a case overturned by the Supreme Court.
So the judge really didn't have any viable options other than the one she chose.

[John]

I would have to read re-read 8th Amendment caselaw to be sure. But I think under this set of circumstances, you could make the argument that 10 years is cruel and unusual punishment. As a judge, I gaurentee you I would find enough facts to support my decision to make the 9th Circuit jump through its ass to overturn me. I might not win, but I would write a hell of an opinion that could be cited by lawyers in other cases. This judged copped out.

[John]

"So the judge really didn't have any viable options other than the one she chose."

Bullshit. See my post above at 1:54. She had lots of viable options. Further, fuck DOJ. If they don't want to spend the time and effort to go to the 9th Circuit every time they bring some bullshit medical marjiuana case in front of me, then I guess they can go find some real crimes to prosecute.

[The Angry Optimist]

this borderline anarchism is interesting. the judge should have just randomly enforced those laws with which she agrees and not enforced those she doesn't.

So much for "the Rule of Law".

Blame Congress.

[John]

"and the judge would have on her resume a case overturned by the Supreme Court."

First, I would wear having refused to sentence this guy to 10 years overturned like a badge of honor. Second, she is a life time tenured federal judge. she is set for life. It is not like she is going to be out looking for work anytime soon.

[Lamar]

"the judge should have just randomly enforced those laws with which she agrees and not enforced those she doesn't."

It wouldn't be random then, now would it?

[libertymike]

TAO-

This is supposed to be a republic where the inviolability of individual liberty trumps two wolves and a sheep deciding what is for dinner.

[The Angry Optimist]

it would subject the populace to the whims of the judge, so it would be random to the people who have to follow it.

[John]

"this borderline anarchism is interesting. the judge should have just randomly enforced those laws with which she agrees and not enforced those she doesn't.

So much for "the Rule of Law".

Blame Congress."

That is bullshit. Some laws are immoral. Some laws are so immoral that a common law judge cannot enforcement. Further, every judge has to enforce the laws within what he or she views as the constraints of the Consitution. For example, a judge refusing to enforce the fugative slave act or the Japanese internment is not anarchy, but the proper ruling. It is a tough call because judges should enforce 99.9% of the laws by their letter regardless of morality. But some laws are so immoral or so at odds with the Constitution, they should not be enforced. I would argue that the sentencing guidelines as they apply in this case, is one of those laws.

[gmatts]

"Bullshit. See my post above at 1:54. She had lots of viable options"

Like trying to convince the Supreme Court that a 10 year sentence is "cruel and unusual punishment"? Good luck with that one. The SC has a hard time deciding whether or not to execute retarded people. I'm pretty sure they'd be ok with a 10 yr sentence for a guy charged with intent to distribute pot. Just a hunch, though.

[Lamar]

"it would subject the populace to the whims of the judge, so it would be random to the people who have to follow it."

LOL! Still not what "random" means. Why don't you just say you misspoke, and give us the word you should have used? I always find it funny when people don't know how to concede the obvious.....like Judge Patel.

[John]

"Like trying to convince the Supreme Court that a 10 year sentence is "cruel and unusual punishment"? Good luck with that one. The SC has a hard time deciding whether or not to execute retarded people. I'm pretty sure they'd be ok with a 10 yr sentence for a guy charged with intent to distribute pot. Just a hunch, though."

So what if she doesn't win? She has still done the right thing. Trying to covince the Supreme Court in 1930 that segregation was unconstitutional was pretty hard as well. But, every judge with a conscience should have done so. Laws and court opinions can change. But the only way they will change is for lawyers and lower court judges to have the courage to write why and how they should change.

[libertymike]

The rule of law necessarily means that the law is not driven by two wolves and a sheep deciding what is for lunch. Rather, the proper role of "the rule of law" is that the exercise by an individual to grow and cultivate mj trumps positivist proclamations made by Congress.

[kinnath]

John, your solution does have the benefit of forcing Obama's justice department to actually appeal the judges ruling thereby forcing Obama to put up or shut up.

[libertymike]

Chorus-

Step up and identify yourself, pussy.

[John]

"John, your solution does have the benefit of forcing Obama's justice department to actually appeal the judges ruling thereby forcing Obama to put up or shut up."

I hadn't thought of that. All the better. Chances are that she is a political creature and didn't want to make enemies by putting the Mesiah in such a bad spot.

[P Brooks]

I wonder if there are any historical precedents regarding laws which, over time, came to be judged as egregious?

[The Angry Optimist]

Lamar - I'm sticking by it, in terms of the rule of law. To the populace, this would be random and arbitrary.

[BakedPenguin]

...the judge should have just randomly enforced those laws with which she agrees and not enforced those she doesn't.

If she went the way John suggested, she wouldn't be "randomly" enforcing them, would she? She would enforce the Federal marijuana law by giving the guy some nominal sentence (time served, probation), and refused to enforce the mandatory minimum due to (IMO valid) 8th Amendment issues.

[John]

"I wonder if there are any historical precedents regarding laws which, over time, came to be judged as egregious?"

I assume you are being snarky in saying that. There is that whole little part of American legal history involving slavery and race relations that comes to mind.

[chorus]

libertymike, this handle is just as legitimate as yours dickhead

[Black Nails]

Oh goody! A libertard pissing contest. Its like watching a drunken fistfight in the redneck nieghbor's back yard.

[P Brooks]

I assume you are being snarky in saying that.

Yes.

Under the circumstances, the Eighteenth Amendment is also a suitable example.

[catmoz]

If the SC got the case now maybe someone like Scalia might have 2nd thougts about empowering the govt.

[JB]

So much for "the Rule of Law".

What Rule of Law?

How much time did Spitzer serve for his admitted crimes?

The 'law' as it is applied now is arbitrary and capricious. That makes it null. There is no law, only power.

If I was Eddy Lepp, I would tell the judge I will serve my first day of prison once Spitzer serves his. Until then, if anyone comes after me, they are fair game and so is any member of the US government including the judge. Force should be responded to with force. If every Eddy Lepp took out 10 government employees, this would be a better country.

[Lamar]

"Lamar - I'm sticking by it, in terms of the rule of law. To the populace, this would be random and arbitrary."

You said, "this borderline anarchism is interesting. the judge should have just randomly enforced those laws with which she agrees and not enforced those she doesn't."

Clearly you are talking about the judge, and not the "perception" of the populace. But even if you were, it still would not seem "random".

The only people who would view such a scenario as "random" are people who don't know what "random" means or use it incorrectly.

I appreciate your point of view, but honestly, I have to wonder whether I truly understand what you are saying since it is clear that you don't even understand the words you use.

[MNG]

Dudes, TAO is correct, it's the law that is the problem not the judges application of it.

I'd like to hope the judge used the word "incredible" in its old fashioned meaning of hard to believe...

[P Brooks]

I appreciate your point of view, but honestly, I have to wonder whether I truly understand what you are saying since it is clear that you don't even understand the words you use.

The judge was only following orders.

Alles klar?

[MNG]

I read the other day about a rapist getting out after doing six years, and this guy is getting ten years for...growing a bunch of plants...

Incredible.

[MNG]

"Until then, if anyone comes after me, they are fair game and so is any member of the US government including the judge. Force should be responded to with force. If every Eddy Lepp took out 10 government employees, this would be a better country."

Hello JB, welcome to Nutsville, population, you!

[sage]

Couldn't the judge have refused to hear the case in the first place due to the prosecution seeking the mandatory minimum? I seem to remember a bunch of judges doing that years ago because they didn't like having their hands tied.

[MNG]

Lamar
I have to say I think TAO is right here. Random means "Having no specific pattern, purpose, or objective" and a judge enforcing the laws she likes but not the ones she does not would appear to ba acting randomly to others, you would'nt know wtf she was going to do...

[MNG]

Sage
If a judge could do that it would be troubling...

"I don't like the sentence defined by the people's representatives in this case, so I'll just not hear it."

Again, the rule of law gets it.

[The Angry Optimist]

Still wondering how many people called their legislators or at least e-mailed them to highlight the outrageousness of the sentencing guidelines.

I don't have a problem with people saying that she maybe should have tried to find something under the Eight Amendment or used the AG's last statements on the issue to find a way to help out on the case, but I find it amazing that we have a bunch of folks for whom it is crystal-clear what she should have done and they don't even pick up the phone.

I'm sure I'm going to get a rash of "well, calling/protesting/voting is meaningless! The legislature is going to do what it wants." And that's kind of my point in this case as well.

[sage]

MNG-

I was trying to find some of the judges that were doing this (it was over 15 years ago), and came across this:

http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines

Though the Federal Sentencing Guidelines were styled as mandatory, the Supreme Court's 2005 decision in United States v. Booker found that the Guidelines, as originally constituted, violated the Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory. In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review.

[MNG]

I think calling and writing legislators is not meaningless but can actually change policy when enough people do it. A big problem is that people disagree with something and then don't let it result in them letting their representatives know or in informing their vote later on...

Politicians are often a cowardly lot, they go with public opinion (and they should) when they know it...

[Lamar]

"Still wondering how many people called their legislators or at least e-mailed them to highlight the outrageousness of the sentencing guidelines."

I don't get it. Are we not really outraged unless we send an email that will never be read? How many times have you called your Senator to tell them how great the law is?

I give money to "interest groups" that pursue these types of things.

[libertymike]

MNG and TAO-

Hope the two of you have a great time this weekend on your deserted island pondering the applications of the rule of law.

[MNG]

sage
Is it the guidelines that stipulate the mandatory minimums at issue? I don't know myself...

[The Angry Optimist]

Lamar, my point is that you have enough people spending energy and "breath", if you will, coming up with myriad ways the Judge could have done X, Y and Z, when the problem is with the legislature, and that's where the problem needs to be fixed.

If you're involved with interest groups too, that's great. Really, it is. But not many of us deign to even get involved at all, and that's the frustrating thing.

If you want your POV heard, you need to express it.

[FBI]

If every Eddy Lepp took out 10 government employees, this would be a better country.

Mr. JB, stay where you are. We'll be right over.

[MNG]

I could be wrong but I imagine a mandatory minimum sentence is like the legislature saying "crime x shall be punishable by a term of no less than y years in prison." It's appropriate for a legislature to set down the punishment, whether a range or not, for an offense they create. I think the sentencing guidelines had to do with what sentences should be given to someone given certain "factors" and these factors were found by judges, thus violating the role of the jury.

[Lamar]

TAO: You're being too lenient. I don't think people should talk about this opinion unless they have actually run for office. Show us your campaign filings or shut up!

[MNG]

I'm not all that opposed to mandatory minimums btw, though I would not set mandatory minimums as high as they are for some crimes (I guess many of those crimes I would not criminalize in the first place, so there's that).

[Pro Libertate]

TAO,

I'd do a little judicial nullification if I were the judge. Does the federal government really even have the constitutional authority to act at all in this area? Probably not. What are they going to do, impeach you? And highlight the unfairness of mandatory minimums? No way.

Taking away judges' (and juries') discretion in cases strikes me as overreach by the legislature, in any event.

[Seward]

TAO,

I'm sure I'm going to get a rash of "well, calling/protesting/voting is meaningless! The legislature is going to do what it wants."

The majority of the U.S. populace does not agree with the bailouts we've been witnessing for well over a year now. The bailouts spawned pretty significant letter-writing, e-mail, etc. campaigns against them. The government has continued to bailout more and more companies in more and more areas of the economy. As a general rule I think the political class has become fairly immune to what pisses people off, particularly at the federal level. That ought not be suprising, BTW; that's what monopolists do.

[SugarFree]

While I agree the problem lies with the legislature, the courts are meant to be a check on their excesses. "STFU and do as you're told," is not something the courts should put up with.

[Warren]

Townshend! Daltrey!
That's your cue!

[MNG]

Guys, imagine how horrible it would be if courts generally acted as you advocate, only enforcing and applying laws they think are right. Remember, most judges probably disagree with a lot of what you think is right...

[Lamar]

"Guys, imagine how horrible it would be if courts generally acted as you advocate, only enforcing and applying laws they think are right. Remember, most judges probably disagree with a lot of what you think is right..."

Um, you don't go to court much, do you? This IS how it works.

[MNG]

"the courts are meant to be a check on their excesses"

But only to the extent that their excesses violate the law, which is made by the legislature. I'm all for courts slapping down legislatures when they violate things like the Constitution, but I don't want the courts to slap down anything based on what they think is fair or right. The legislature and executive alone should do that, because they are elected, and you know, that whole consent of the governed being the only justification for government authority thing...

[The Angry Optimist]

Lamar - come on now. Are there subjectivity problems in the courts? Yes. Does that mean you can broad-brush state that judges are arbitrary and capricious in its enforcement as a rule? No. That's not a fair way to paint it.

[kinnath]

Guys, imagine how horrible it would be if courts generally acted as you advocate, only enforcing and applying laws they think are right.

Only when the judge actually says that the minimum guidelines are wrong, but he/she has not choice but to sentence someone per the guidelines anyway . . . .

The judge already knows the minimum sentence isn't proper . .

[Lamar]

People have a constitutional right to a trial by jury, and minimum sentences remove the jury's prerogative and give it to the prosecutor. That is a legitimate constitutional problem.

[John]

Everyone seems to have just ignored Sage's point above. The guidelines are not mandatory anymore. She was perfectly within her rights as a judge to ignore them. All of this talk of judicial anarachy is just nonsense.

[kinnath]

Discretion is a two-edged sword:

Jury nullification keeps people from being sent to jail based on bad law. It also allows murderers to be set free by bigots.

Judicial discretion keeps sick old men from being sent to prison for 10 years for growing pot for other sick people.

It also means that crappy judges let rapists go with a slap on the wrist.

Pick your poison . . .

[kinnath]

Everyone seems to have just ignored Sage's point above.

That was gnawing at the back of my brain all afternoon.

[Lamar]

Are the sentencing guidelines the same thing as mandatory minimums?

[John]

"Are the sentencing guidelines the same thing as mandatory minimums?"

Yes. And as Sage points out above, they are not as mandatory as they once were. It might have been overturned on appeal. But the judge had every right to ignore the guidlines if she felt it was warrented.

[SugarFree]

MNG,

The judiciary is a function of the consent of the governed (setting aside my objections to that concept for a moment), judges don't appoint themselves, they are either elected or appointed by elected people. Judges that refuse to follow unjust laws are doing their job. Ignoring or abrogating drug minimums is about the Constitution, not just a judge's whim. There are two fine rationales for the judge letting this guy go: intrastate non-commerce is not the purview of the Feds and 10 years for legally growing a plant is cruel and unusual.

Judges are one of the few ways to maintain freedom for the minority in a majortarian tyranny. Judges go off the reservation occasionally, but the legislature is much, much worse on balance.

It might make some legal sense to say that the police are bound to follow the law without discretion, but judicial discretion is their function in our system, to make sure laws serve justice, not just their creators.

[JB]

Hello JB, welcome to Nutsville, population, you!

Those who fought the British and founded this country were bigger nuts than me. That means you live in Nutsville, MNG.

Are you going to leave this country? Hell, I would chip in to help move you to one of your socialist paradises.

[JB]

Mr. JB, stay where you are. We'll be right over.

Bring it on. I committed no crime in those words.

The FBI is filled with a bunch of dickless fuckbags just like every governement entity.

[Pro Libertate]

John,

I was going to mention that, but I figured it was still worth arguing about.

[John]

"John,

I was going to mention that, but I figured it was still worth arguing about."

I go back to my original post. If the judge had made a very detailed finding of fact and wrote a really thoughtful opinion about why the guidlines were not appropriate in this case, the 9th Circuit would have played hell over turning her.

[Warren]

Great googly moogly.
The way I see it, it isn't the sentence that's the problem. It's the conviction, and the problem with the conviction, is that the defendant was not allowed to present relevant and mitigating evidence at trial.

There's no way you can pretend this was "rule of law" when the defendant is not allowed to present evidence that the state doesn't want the jury to know.

[James Anderson Merritt]

# The Angry Optimist | May 22, 2009, 1:08pm | #

# Before everybody leaps down the Judge's throat
# about, I'm open to hearing what you think she
# should have done.

# Violated the law?

Is it a violation of law to let the jury hear all evidence and testimony that the DEFENSE deems proper, whether it "matters" or not? Is it a violation of the law to inform the jury that it is empowered to base its verdict not only on the letter of the law, but on the justice of it and its application?

Doing these things might not have been good for the judge's career, but they would have been right. Better 100 judges must forevermore wear paper hats and ask "do you want fries with that," then a single unjustly prosecuted person have to spend a single day in prison.

[Anonymous]

Toasting in an epic bread.

[R C Dean]

Look, she as much as admits that the sentence she imposes is a terrible injustice. As noted above, these are properly regarded as sentencing guidelines rather than mandatory minimums per SCOTUS.

So, she imposed an injustice without even the cover of being required to by law. She is either (a) abusing her office to indulge her distaste for the defendant or (b) knowingly sending a man to jail for an unconscionable term based on her desire to avoid professional and social embarassment. I see no other explanations.

She is scum. Tenured, federal scum.

[judge&jury]

I saw a video on the internet about the bible and cannabis. And I had heard and read, u know the part about the "herb bearing seed" and "it shall be as meat to you/man/us". Any way this went into much more greater detail and described other verses out of the Bible that had references to "meat" as in "cannabis". They went into great detail about YWHE as the correct name for the Creator. Any way after watching this, my personal thoughts regarding religious use has increased at least 100 fold. This was an exceptional video and had 2-3 parts. It was very detailed using only Bible text from a hebrew bible, an old bible. Really changed my mind, more towards religious justification for the use of the cannabis. Sorry I don't remember what it was titled under. But you can probably find it on youtube.

[charlie]

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[Mad Max]

I understand that this case involves a mandatory minimum, not a guideline sentence.

If 10 years was merely a guideline sentence, the judge could disregard it if she has a good reason (as evaluated by the appeals court).

If it's a mandatory minimum, the judge has to apply it, unless the mandatory minimum violates the Constitution (as interpreted by higher courts then her).

So if we assume that the mandatory minimum here is 10 years, and assuming the higher courts would find it constitutional, then the judge either has to (a) impose that sentence, (b) resign, or (c) come up with some clever legal theory which would probably be struck down by the appeals court. Even then, the defense usually has to suggest the legal theory, since judges don't have unlimited authority to come up with legal rulings which neither side has requested.

The judge *could,* I suppose, say that this case calls for a Presidential pardon, and defer sentencing for a little bit in hopes the President grants one, and then give an angry speech when he doesn't. She could try to mobilize public pressure to shame the Pres into giving a pardon. But then it's back to the same choices above.

[Mad Max]

Or she could take option (d) and call the interracial chat line.

Kidding, kidding, Your Honor!

[Art-P.O.G.]

James Anderson Merritt | May 22, 2009, 4:32pm | #

sage | May 22, 2009, 2:58pm | #

To you and many others, really good job. Really informative.

[J. P. Carlo]

"Mass resignations are one of the few judicial actions that might actually lead to a reversal by the legislature."

Nah, they'll just buy some black cloth at Walmart, sew it together and put it on the Honorable Steven Hayne, Esq.

"What's the charge? Running a red light? No prob, I got it. Any evidence? No? Ehh, we'll make due without it. How much you want? 20 years? Done. Next!"

[J. P. Carlo]

"People have a constitutional right to a trial by jury, and minimum sentences remove the jury's prerogative and give it to the prosecutor. That is a legitimate constitutional problem."

Not exactly. Juries can choose to nullify, if they think the guy's guilty as sin but the sentence is excessive.

That is, instead of sentencing a guy to a small sentence he deserves, turn him loose because the mandatory minimum sentence is too harsh.

See how that grabs the tough-on-crime pols...

Then again, rather than repeal MM sentencing laws, maybe they'll try their damndest to conceal any evidence of MM laws or sentencing guidelines from the jury and/or crack down on attempts at nullification (i.e. threaten to jail jurors, which of course the courts will smack down but not until after they've been in the cooler for 3 months for their jury duty indiscretions).