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January 14, 2013

Are there constitutional limits on severe mandatory federal punishments for those complying with state marijuana laws?

The question in the title of this post is prompted by this interesting lengthy article in today's New York Times.  The piece is headlined "In California, It’s U.S. vs. State Over Marijuana," and here are excerpts from the start and end of the article:

Matthew R. Davies graduated from college with a master’s degree in business and a taste for enterprise, working in real estate, restaurants and mobile home parks before seizing on what he saw as uncharted territory with a vast potential for profits — medical marijuana.

He brought graduate-level business skills to a world decidedly operating in the shadows. He hired accountants, compliance lawyers, managers, a staff of 75 and a payroll firm.  He paid California sales tax and filed for state and local business permits.

But in a case that highlights the growing clash between the federal government and those states that have legalized marijuana for medical or recreational use, the United States Justice Department indicted Mr. Davies six months ago on charges of cultivating marijuana, after raiding two dispensaries and a warehouse filled with nearly 2,000 marijuana plants.

The United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee, wants Mr. Davies to agree to a plea that includes a mandatory minimum of five years in prison, calling the case a straightforward prosecution of “one of the most significant commercial marijuana traffickers to be prosecuted in this district.”

At the center of this federal-state collision is a round-faced 34-year-old father of two young girls.  Displaying a sheaf of legal documents, Mr. Davies, who has no criminal record, insisted in an interview that he had meticulously followed California law in setting up a business in 2009 that generated $8 million in annual revenues.  By all appearances, Mr. Davies’ dispensaries operated as openly as the local Krispy Kreme, albeit on decidedly more tremulous legal ground.

“To be looking at 15 years of our life, you couldn’t pay me enough to give that up,” Mr. Davies said at the dining room table in his two-story home along the San Joaquin River Delta, referring to the amount of time he could potentially serve in prison.  “If I had believed for a minute this would happen, I would never have gotten into this.

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

His lawyers appealed this month to Attorney General Eric H. Holder Jr. to halt what they suggested was a prosecution at odds with Justice Department policies to avoid prosecutions of medical marijuana users and with President Obama’s statement that the government has “bigger fish to fry” than recreational marijuana users.  “Does this mean that the federal government will be prosecuting individuals throughout California, Washington, Colorado and elsewhere who comply with state law permitting marijuana use, or is the Davies case merely a rogue prosecutor out of step with administration and department policy?” asked Elliot R. Peters, one of his lawyers.

“This is not a case of an illicit drug ring under the guise of medical marijuana,” Mr. Peters wrote.  “Here, marijuana was provided to qualified adult patients with a medical recommendation from a licensed physician. Records were kept, proceeds were tracked, payroll and sales taxes were duly paid.”  Mr. Holder’s aides declined to comment, referring a reporter to a letter from Mr. Wagner to Mr. Davies’s lawyers in which he disputed the depiction of the defendant as anything other than a major-league drug trafficker.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” the letter said.  Mr. Wagner said that prosecuting such people “remains a core priority of the department.”

The case illustrates the struggle states and the federal government are now facing as they seek to deal with the changing contours of marijuana laws and public attitudes toward the drug.  Colorado and Washington legalized marijuana for recreational use last year, and are among the 18 states, and the District of Columbia, that currently allow its medical use.

Two of Mr. Davies’s co-defendants are pleading guilty, agreeing to five-year minimum terms, to avoid stiffer sentences.  Mr. Davies, while saying he did not “want to be a martyr,” decided to challenge the indictment with a combination of legal and public-relations measures, setting up a Web site devoted to his case and hiring Chris Lehane, a hard-hitting political consultant and former senior aide in Bill Clinton’s White House....

This is as much a legal clash as a cultural clash.  Recreational marijuana use is common across this state, and without the legal stigma attached to it in much of the country. The federal government is viewed as a distant force.

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

As the question in the title of this post hints, I strongly believe there are some unique (and uniquely important) constitutional arguments based in the Eighth Amendment (and perhaps also the Fifth Amendment) to preclude extreme application of extreme mandatory minimum federal sentencing terms to persons in full compliance with state medical marijuana laws.

In a variety of punishment contexts, the Supreme Court has frequently used the Eighth Amendment to prevent one uniquely harsh jurisdiction from imposing a uniquely harsh punishment to certain offenders. In the marijuana setting, it is federal sentencing law being used to impose or threaten a mandatory sentence on defendants who, in probably every state in the United States, would have been legal or subject to a minor non-incarcerative criminal punishment or, at most, a short period of imprisonment. As long as the Eighth Amendment is understood to preclude some extreme outlier punishments, I think there must be some limit on how extreme a sentence the feds can threaten against a medical marijuana provider who is genuinely seeking to comply with applicable state laws.

Some other very recent coverage of this notable case from other media include:

  • From The Atlantic here, "The High Cost of Shutting Down One Medical Marijuana Operation"
  • From The Huffinton Post here, "Matthew Davies' Wife Asks Obama To End Family's 'Nightmare,' Drop Medical Marijuana Case"
  • From Reason.com here, "Who Will Be the Last Baby Girl to Go Fatherless in the Feds' War on State-Legal Marijuana?"

January 14, 2013 at 10:44 AM | Permalink

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Comments

Even if there is such a limit I seriously doubt that a 5 (or even 20) year sentence would go beyond it. And I don't see the courts wading into this territory any time soon.

Posted by: Soronel Haetir | Jan 14, 2013 11:23:26 AM

From the quoted article: "This is as much a legal clash as a cultural clash. Recreational marijuana use is common across this state, and without the legal stigma attached to it in much of the country. The federal government is viewed as a distant force."

The federal government was likewise viewed as a distant force in the 1950's and 1960's when the federal government enforced federal civil rights laws and federal constitutional protections for black citizens against the conservative state and local governments of time. While people can discuss the merits, if any, of current federal drug laws (and people do), the fact remains that federal law is what it is and federal law trumps state or local law. The idea of federal supremacy does not suddenly become a bad idea here just because the the locals are the progressives.

Doug writes: "In the marijuana setting, it is federal sentencing law being used to impose or threaten a mandatory sentence on defendants who, in probably every state in the United States, would have been legal or subject to a minor non-incarcerative criminal punishment or, at most, a short period of imprisonment."

The large quantity of marijuana involved in the instant case would not be treated as a minor, non-incarcerative criminal offense in any state where marijuana possession is against the law.

Doug writes: "I think there must be some limit on how extreme a sentence the feds can threaten against a medical marijuana provider who is genuinely seeking to comply with applicable state laws."

This is not a situation where a federal criminal defendant sought to comply with state law and in the process violated state law. State law in this case does not compel the cultivation of marijuana. State law allows the conduct. Unfortunately for this defendant, federal law plainly does not.

Posted by: C60 | Jan 14, 2013 11:46:17 AM

maybe so but the big big BIG damn problem is here!

"He brought graduate-level business skills to a world decidedly operating in the shadows. He hired accountants, compliance lawyers, managers, a staff of 75 and a payroll firm. He paid California sales tax and filed for state and local business permits."

So where is the arrest records and court cases against anyone involved at the local and state govt lvl?

Sorry if the law is illegal and he's being prosecuted so should anyone in govt who was part of it?

After all isn't that what the govt loves to call an ongoing criminal conspiracy!

Posted by: rodsmith | Jan 14, 2013 12:17:53 PM

They have no fucking problem takeing some 80 year old woman's house because the grandson sold dugs while living there.

but here we have govt agents all the way up the chain to the governor pasing laws supposidly in direct violation of federal law!

So where are their arrests and prosecution!

Posted by: rodsmith | Jan 14, 2013 12:19:33 PM

There is no law against a state passing a law that is contrary to federal law. However, the state permitting conduct does not speak for the federal government. It is well known that many construction projects require both state and federal permits, often times permits that overlap. The developer, having obtained the state permit, is not excused from obtaining a federal permit, nor does the state permit excuse any violation of federal law.

Posted by: C60 | Jan 14, 2013 12:41:23 PM

You raise many important points, C60, but I wonder if you would see a problem if the feds were to subject an otherwise reputable business person who fails to obtain a federal permit to a decade or more of mandatory federal imprisonment. And, to try to keep the parallel, let's also imagine the feds have issued a high-profile DOJ memo stating they probably would not have the time or inclination to go after business persons who fail to fill out the federal permits as long as they made sure their state permits were kept up to date.

The question I meant to tee up via the title of this post, and the issue that this high-profile case puts in stark relief, is not whether the feds can prosecute Mr. Davies or similar individuals. After Raich, there seem to be little question (or even extended debate) on that score (at least for Commerce Clause purposes). Rather, the question this case raises is whether the feds can subject Mr. Davies to LWOP and/or the most extreme potential federal sentences without raising some other constitutional issues/concerns.

Posted by: Doug B. | Jan 14, 2013 2:23:17 PM

Soronel and C60 are right on the money.

The article is written to make the defendant appear to be Mr. Law Abiding. But it's all but certain that he knew his conduct was a flagrant violation of federal law, done for profit (of which apparently there was a good deal).

Doug's questions are misconceived. First, there is no such thing as a federal "permit" to go into what amounts to a Costco-sized business selling pot. Second, a DOJ memo to the field about what is and is not a priority, or what DOJ will ordinarily have the time and inclination to prosecute, does not by its terms or by implication confer any right to violate longstanding and well-known federal law.

The established (by now) history of the feds successfully, and with court approval, going after these so-called "medical" marijuana dispensaries is too much to believe there is a plausible argument that the federal sentences are unconstitutional. Nor of course is there any precedent.

What there is, admittedly, is the druggie bar's pipe dreams. Those are, as ever, not in short supply.

Posted by: Bill Otis | Jan 14, 2013 3:46:43 PM

The answer is yes. See Michael J. Zydney Mannheimer, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69 (2012).

Posted by: Michael J.Z. Mannheimer | Jan 14, 2013 4:03:28 PM

Professor Mannheimer --

I'll bet you a hunderd bucks here and now that, if Davies gets a federal sentence of 15 years, it will stand up at every level of review against every Eighth Amendment challenge made against it.

Are we on?

Posted by: Bill Otis | Jan 14, 2013 4:23:54 PM

Ha! I'm smart enough not to take a bet like that. This is a novel argument that will someday have legs. Someday. (And I probably won't get any credit).

Posted by: Michael J.Z. Mannheimer | Jan 14, 2013 4:40:10 PM

Professor Mannheimer --

A wise man you are. And I admire your looking back into original meaning, even if from the anti-Federalists. I have to admit the anti-Federalists are looking better and better these days, in the face of Obama's Dependency State leviathon, but I still have my doubts about them. My wife is, after all, a co-founder of the Federalist Society.

Posted by: Bill Otis | Jan 14, 2013 4:47:24 PM

hmm

"There is no law against a state passing a law that is contrary to federal law."

Horse shit!

if there is not a specific law on the books....it's becasue it's what normal people would call a no brainer!

If as all the federal supports here say "Federal law is the law of the land and tops state law"

Then it's a given that no state can pass a law that directly requires one to violate federal law.


Sorry that's a criminal conspiracy!

Posted by: rodsmith | Jan 14, 2013 6:55:50 PM

The naivete of all parties reflected in the New York Times article is stunning. First, you have Davies asserting that because he took withholding out of his employees' pay and paid unemployment tax, kept books, and acted like a regular business, he somehow thought he could scale his operation to large size in violation of federal law. Second, you have attorneys, according to the story, telling Davies, when he described his plan, "no problem." Finally you have the author of the article sympathetically portraying this as someone who tried to do it "right."

I'm happy I live in a state that is now freer than it was pre-November, but anybody who understands law and business would know that Mr. Davies faced a tough financial struggle even if the feds had not -- apparently inadvertently, according to the story -- happened upon his business. Could he have deducted his payroll expense, his rent, his fertilizer, etc. as business expenses? No way. Could he have retained his profits? No way -- they'd be the proceeds of illegal activity.

Though I support the growth, sale and use of marijuana by adults, and ending the senseless war on this drug, I was put off by that fact that Mr. Davies was portrayed as shocked by the fact that federal law enforcement authorities did not look the other way when his business was discovered. The predicament was of his own making, and totally foreseeable.

Posted by: Seattle Attorney | Jan 15, 2013 4:01:44 PM

well Seattle Attorney the kicker is this!

" Displaying a sheaf of legal documents, Mr. Davies, who has no criminal record, insisted in an interview that he had meticulously followed California law in setting up a business in 2009 that generated $8 million in annual revenues. "

He followed state law to the letter ad based on other parts where he even went so far as to hire a "Payroll firm" to handle payroll and taxes.

Gonna be fucking hard to state that the STATE did not get their cut of the EIGHT MILLION DOLLARS he made!

So again where is the state's charges and arrests for the ongoing criminal conspiracy to violate Federal Law!

if he's guilty so are they!

Posted by: rodsmith | Jan 15, 2013 8:54:59 PM

Let us also not forget the boys at the United States Treasury Department and the IRS who i'm prety sure also got THEIR CUT!

Posted by: rodsmith | Jan 16, 2013 12:00:06 PM

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