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June 27, 2014

New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution

Kettle_falls_signI am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state.  This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:

[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.

To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....

Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)

Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”

But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.

This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.

Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.

Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....

Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.

So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.

If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.

As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.

In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context.  Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility."   I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.

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June 27, 2014 at 09:16 AM | Permalink

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Comments

Are these 8A arguments based on the federalism arguments put forth by a professor that comments here from time to time?

Posted by: Joe | Jun 27, 2014 9:46:16 AM

Joe:

A priest friend long ago told me that from his experience, there are two types of people in this world; those who can torure others and those who cannot.

I hope I cannot. But this should not be taken as a sign that I am too weak to vigorously defend by any means necessary that which is important to me. My country is not what is currently important to me with respect to these types of actions.

Posted by: albeed | Jun 27, 2014 10:11:08 AM

Joe: In part, my 8 A arguments are based in Michael J.Z. Manheimer's effective work in articles like “Cruel and Unusual Federal Punishments,” 98 Iowa L. Rev. 69 (2012). But it is also based on some the Supreme Court's recent juve LWOP work AND my own belief that, at some point, the kinds of arguments that failed via a commerce clause challenge in Raich can and should prevail on Eighth Amendment grounds.

Posted by: Doug B. | Jun 27, 2014 10:30:28 AM

Thanks.

I don't find his (I keep on forgetting his name! sorry) arguments that convincing, except somewhat as a policy matter, but perhaps Rand Paul types will and apply them in this area.

I'm unsure how the juvie precedents will apply to adults though I guess "special circumstances" reasoning is somewhat plastic. If the feds have a strong enough claim to carry out a power, not sure why they can't use the criminal justice system to enforce it. But, maybe Kennedy et. al. will take things on a balancing test basis. Me personally, I think there is a strong liberty claim here and that can make a punishment excessive. Still, a few states legalizing alone wouldn't change things on that front by its lonesome. To me, it is really bottom line an enumerated power argument phrased somewhat differently. Thanks for the clarification.

Not sure why the other comment is addressed to me personally. Okay though.

Posted by: Joe | Jun 27, 2014 12:55:55 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB