June 11, 2009
Pot doc scheduled to be finally sentenced... (and gets a year in prison)
As detailed in this AP piece, a high-profile case involving a dispenser of medical marijuana is suppose to finally get to sentencing today:
A medical marijuana dispensary owner is scheduled for sentencing in one of the nation's first cases since the Obama administration modified its pot policy.
Charles Lynch will appear Thursday in the Los Angeles federal courtroom of U.S. District Judge George Wu, who said at a hearing in April that he would consider reducing Lynch's mandatory minimum five-year sentence. Lynch was convicted of five offenses last year for running a medical marijuana collective in San Luis Obispo County.
As detailed in some of the posts below, this case has already generate a number of notable sentencing issues.
- Medical marijuana fans now feeling they can exhale and inhale
- Maui wowie: pot sentencing impacted by new federal policy
- Sentencing in medical marijuana case impacted by statutory minimums
UPDATE: As detailed in this article from the New York Times, Lynch got a year in prison. Here are the sentencing basics:
In imposing his sentence on Charles C. Lynch, who ran a dispensary in the surfing hamlet of Morro, Judge George H. Wu said the changed federal policy did not directly affect his ruling. But the judge talked at length about what he said were Mr. Lynch’s many efforts to follow California’s laws on marijuana dispensaries and the difficulty the judge had finding a loophole to avoid sending him to prison. “I find I cannot get around the one-year sentence,” Judge Wu said of federal sentencing laws.
The judge said he had reduced the sentence from a mandatory five years because Mr. Lynch had no criminal record or history of violence, and did not fit the strict definition of a “leader” of a criminal enterprise.
June 11, 2009 at 08:15 AM | Permalink
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I walked into a "drug store" the other day-- part of a big chain of stores that is going under in a bankruptcy Chapter 11. They had a huge counter selling cigarettes. In a drug store.
Where does America get the resources to prosecute this pot guy? The judge is probably a tobacco addict and owns stock in my favorite drug store that is in Chapter 11. I hope so.
Posted by: mpb | Jun 12, 2009 8:24:53 AM
The story captures the essence of what's happened to the justice system since the Nixon folks taught future generations of politicians how to effectively exploit the crime issue.
A sympathetic federal judge can't find a way to avoid imprisoning a man who scrupulously complied with state law.
Pretty much says it all.
Posted by: John K | Jun 12, 2009 9:09:34 AM
John K -- "A sympathetic federal judge can't find a way to avoid imprisoning a man who scrupulously complied with state law. Pretty much says it all."
The federal judge was of course applying federal law, which trumps state law, as this defendant full well knew. Gonzales v. Raich, 545 U.S. 1 (2005)(Stevens, J.).
Did you have the same fawning regard for the importance of state law when the state law in question was the Jim Crow law in force in numerous states in the middle part of the 20th Century? Or are we free to pick and choose which state laws are to be accommodated (or condemned) based on personal preference?
Posted by: Bill Otis | Jun 12, 2009 10:05:21 AM
So is the prosecution okay with this sentence? I would think they have pretty good grounds for appeal if they aren't. Though I seem to recall the prosecution being okay with a sentence of one day for the High Times editor.
Posted by: Soronel Haetir | Jun 12, 2009 10:52:26 AM
"Did you have the same fawning regard for the importance of state law when the state law in question was the Jim Crow law in force in numerous states in the middle part of the 20th Century? Or are we free to pick and choose which state laws are to be accommodated (or condemned) based on personal preference?"
That's absurd and offensive. It's not a matter of personal preference. Telling black folks they are inferior is not equivalent to a state law permitting marijuana for medical use.
Posted by: John | Jun 12, 2009 10:56:22 AM
1. So you don't dispute that federal law trumps state law, and that Gonzales v. Raich settled the question in the context of California's state rule. OK, at least we got that straight.
2. "It's not a matter of personal preference. Telling black folks they are inferior is not equivalent to a state law permitting marijuana for medical use."
Your second sentence of course disproves your first. It IS, in your view, a matter of personal taste. Most people, including me, would share that taste, and agree that Jim Crow laws are more odious than these dope-is-dandy state laws, but it's still a matter of taste.
3. The "medical use" business is nice hype, but it's not true, at least according to the AMA. The AMA does not regard smoked marijuana as medicine and in fact views it for what it is, namely, a hazardous drug that should remain illegal. If you know more about medicine than the AMA, you are of course free to explain how that is so.
Posted by: Bill Otis | Jun 12, 2009 11:15:21 AM
Soronel Haetir -- If five years was a true statutory mandatory minimum, and the government filed no motion that would allow a lesser sentence, then it seems to me that the government has a viable appeal. But that's a big "if," and I don't know enough about the specifics of the case to have an informed opinion. I do know that the present Justice Department has turned itself into a fat enough punching bag on this issue that the chances it will appeal are remote, no matter how good the prospects would be for winning.
Posted by: Bill Otis | Jun 12, 2009 11:24:50 AM
"The federal judge was of course applying federal law, which trumps state law, as this defendant full well knew. Gonzales v. Raich, 545 U.S. 1 (2005)(Stevens, J.)."
Is that you, Javert? Is this me?
Posted by: John K | Jun 12, 2009 11:45:14 AM
John K -- I don't know why you'd think Justice Stevens is Jauvert, but let a thousand flowers bloom.
Incidentally, it wasn't just Stevens. The Court's entire liberal bloc, plus Kennedy, plus Scalia, supported the Raich result. If you know better, please explain why your reasoning is more convincing.
Posted by: Bill Otis | Jun 12, 2009 12:17:26 PM
I think we both know who Javert is.
Posted by: John K | Jun 12, 2009 12:32:42 PM
John K -- "I think we both know who Javert is."
Quite so. He is a fictional character in Victor Hugo's Les Miserables.
Oh, but wait, I take your meaning. Jauvert is any federal prosecutor who thinks he's being paid to apply federal law, as (1) overwhelmingly enacted by Congress in the CSA, (2) ratified in relevant part by a lopsided Supreme Court majority in Raich, and (3) supported by the AMA's opinion that marijuana is not medicine and should remain illegal.
Gads, John K, Jauvert should be made of sterner stuff.
Posted by: Bill Otis | Jun 12, 2009 12:54:05 PM
Otis, you're missing the point. Nixon's drug war killed states' rights in this area -- which conservatives are supposedly in favor of, except when they're not.
Posted by: rothmatisseko | Jun 13, 2009 8:42:52 AM
"Otis, you're missing the point. Nixon's drug war killed states' rights in this area -- which conservatives are supposedly in favor of, except when they're not."
1. Nonsense. Read the comments if you want to find out what the "point" has become. John K decided that my support for federal drug laws makes me Jauvert. Jauvert was a fictional detective obsessed, in the time before the French Revolution, with hunting down a starving man who broke the King's law by stealing a loaf of bread.
The law the "pot doc" broke was adopted, not by royalty, but by democratic processes -- the Controlled Substances Act of 1970. The CSA was enacted by an overwhelmingly liberal and Democratic Congress, and has remained intact for almost 40 years through succeeding elections, through administrations of both parties, and through both liberal and conservative national climates.
That the CSA takes precedence over inconsistent state law was established, not by Richard Nixon, but by Gonzales v. Raich, 545 U.S. 1 (2005), in which the most conservative (Scalia) and the most liberal (Stevens) Justices agreed on the outcome. And the CSA was designed, not to punish those who steal to fend off starvation, but those who for fun and (especially) profit sell and use dangerous drugs from marijuana to meth and heroin.
I was an AUSA for a long time. Like thousands of my former colleagues, including at one time Eric Holder, I am proud to have helped in the enforcement of this statute, and proud or not, it was a duty I took an oath to perform.
If that's your version of Jauvert, have at it.
By the way, the AMA, which I strongly suspect knows more about the effects of marijuana than you do, takes the position that smoked marijuana is NOT medicine and is, to the contrary, a hazardous drug that should remain illegal.
2. Nixon did not "kill[ ] states' rights in this area." Whether states have the right effectively to nullify federal law is not something the Executive Branch decides in any event. It is something the courts, and in particular the Supreme Court, decides. In Raich, it did.
Not a single Justice in the majority that upheld federal supremacy in this area was appointed by Nixon. The majority and concurring Justices consisted of Stevens (appointed by Ford), Scalia (Reagan), Kennedy (Reagan), Souter (Bush), Ginsburg (Clinton) and Breyer (Clinton). Indeed, the only Justice still on the Court who was appointed by Nixon (Rehnquist), voted IN FAVOR of the "states' rights" position.
3. Liberals are supposedly, and historically, in favor of federal supremacy (see, e.g., the Defense of Marriage Act, signed by President Clinton), except when they're not (see, e.g. the "states' rights" crowd in California pushing for gay marriage).
Or, if it's hypocrisy generally you're interested in.....I could also discuss overwhelmingly liberal support for rigorous gun control measures -- support that was in full voice until about 30 seconds after Heller was decided, when it got shoved down the memory hole in favor of the rights of felons, of all people, to arm themselves to the teeth.
This I suppose was also Nixon's doing.
Posted by: Bill Otis | Jun 13, 2009 12:31:50 PM
Was the Raich ruling about inconsistency, as you suggest, Bill, or just another flimsy commerce-clause excuse to impose federal jurisdiction?
I mean, is it plausible the half dozen or so pot plants Ms. Raich had in her home actually threatened to disrupt interstate trade in mj?
Never thought I'd find myself writing these words, but Thomas' dissent in Raich was spot on (it also spoils the cute notion of partisan harmony).
Javert persecuted an ex-con who'd stolen bread... Mr. Otis evokes the spectre of Javert by supporting the zealous targeting of folks whose crime was trying to help ill people cope with pain.
Posted by: John K | Jun 13, 2009 5:24:10 PM
John K --
"Was the Raich ruling about inconsistency, as you suggest, Bill, or just another flimsy commerce-clause excuse to impose federal jurisdiction?"
The Raich conclusion about the Commerce Clause, having won the support of the Court's most liberal Justice, its most conservative, and its swing vote, would strike most observers not as flimsy but as well-subscribed. Your post does not even purport to analyze it, but merely to say that you don't like it. OK, I think we knew that.
By the way, when did the Commerce Clause become so unpopular with liberals? For years it was the principal Constitutional fulcrum employed to justify what liberals wanted most: A more expansive and powerful federal government.
"I mean, is it plausible the half dozen or so pot plants Ms. Raich had in her home actually threatened to disrupt interstate trade in mj?"
Read Wickard v. Filburn, 317 U.S. 111 (1942), and Raich's analysis of Wickard.
"Never thought I'd find myself writing these words, but Thomas' dissent in Raich was spot on (it also spoils the cute notion of partisan harmony)."
Then maybe you could prevail on your fellow liberals to apologize to Justice Thomas for the lies and racist stereotypes they orchestrated against him at his confirmation hearing.
"Javert persecuted an ex-con who'd stolen bread... Mr. Otis evokes the spectre of Javert by supporting the zealous targeting of folks whose crime was trying to help ill people cope with pain."
When I was an AUSA, I "targeted" people who intentionally and often repeatedly violated democratically (and overwhelmingly) enacted federal law. You might be gullible enough to think that their purpose was to "help ill people cope with pain," but their actual purpose was to hype themselves and get oodles of adoring press coverage as heroes of the counter-culture, for which dope was and remains an icon.
It has zip to do with medicine. First, as I have pointed out (and you conspicuously fail to rebut or even mention), the AMA does NOT regard smoked marijuana as medicine. It takes the opposite view: That marijuana is a hazardous drug that should remain illegal (indeed, that should remain on Schedule I).
Second, the active ingredient in marijuana, THC, is ALREADY available for the treatment of pain in the legal drug Marinol. The reason Marinol seldom if ever gets discussed by the legalization crowd is that it doesn't get you high. It is therefore useless for the real purpose behind the push for legalization. So it gets dropped into the Doper Cone of Silence.
Third, as the San Fransisco authorities themselves have said, these supposed "medical" marijuana dispensaries are little more than fronts for run-of-the-mill drug pushers who don't even make a pretense of complying with the regulations supposedly in place to promote "medicine." It's about what drug pushing is always about -- making a fast buck off other people's ignorance and immaturity.
In view of dope's documented harmful effects, the apt figure to point to here is not Jauvert but Nero. The we're-above-federal-law crowd fiddles while thousands of adolescents get their good sense burned by a bunch of phony stories about how a dangerous drug is really medicine.
Sure it is. So's LSD. Really liberates your consciousness, dontcha know.
Posted by: Bill Otis | Jun 14, 2009 8:22:16 AM