The End of Hysteria and the Last Man

Jacob Sullum
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Posted: Mar 25, 2009 12:00 AM

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 (DEA) 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.