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."