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January 30, 2016

You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing

R_schmidt-262x272The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says."  Here are the basics (with my emphasis added):

Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana.  Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.

But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients.   He told police that "he was operating his business as a source of income," Distel said.

Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW.  Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants.  Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.

He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court....  Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing.  He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.

Schmidt is free on bond.  Kent County prosecutors will drop a second charge of manufacturing marijuana.

His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives.  After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party.  He had spent 16 years on a Grand Rapids City Commission on the West Side of town.

This case raises more than a few interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significantly influence what criminal sentence he receives?    

But, what really captured my attention in this case (and prompted my cross-posting over at my Marijuana Law, Policy & Reform blog) is the different ways this defendant's offense might be viewed by a sentencing judge.  His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who sold a dozen or so times to underage college students.  But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.

Thoughts, dear readers?

January 30, 2016 at 01:17 PM | Permalink


"Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants. Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients."

I do not see how one can take those facts and argue that this is essentially a regulatory violation. He was legally allowed to own about a pound (2.5x5=12.5, 16oz in a pound). So he had more 300% of the legal limit. It also isn't clear to me if the 71 plants are in addition to the three pounds or the 71 plants are where the three pounds come from. If it is the former that makes it even more unlikely that this is something akin to a regulatory violation and far more likely that he is using medical marijuana as a cover for his illegal dope dealing business.

Posted by: Daniel | Jan 30, 2016 1:35:07 PM

If the guy is unlikely to pull the stunt again, I hate to see him loose everything.

Fine him $50K, 5 yrs probation and if he does it again, all of his assets are taken and he gets a guideline sentence plus what he missed on this episode.

Might not seem harsh to any if you. Better believe I would be on the straight and narrow..Im sure a sentence like I described wouldnt or couldnt be done. But you get the drift of it and Im sure most judges could fashion a similar sentence.

This would promote respect for the law to most anyone.

Posted by: MidWestGuy | Jan 30, 2016 8:20:40 PM

All fair points, Daniel, but that leaves open the question of what sentence you would impose under these circumstances. I am eager to hear youe specifics sentencing judgment (and others').

Posted by: Doug B. | Jan 31, 2016 11:09:52 AM

Is a no-contest plea legally equivalent to a guilty later (meaning that he must report it as a conviction)? If not then I would say either whatever the statutory maximum is under the circumstances or reject the plea outright. If it is a conviction I would say a year or so in prison along with the pending asset forfeiture.

I also strongly disagree with MWG on the specific point of forfeiture here. This is not a case where the state pursued forfeiture despite not prosecuting the criminal case. This guy fully deserves to lose everything.

Posted by: Soronel Haetir | Jan 31, 2016 3:47:53 PM

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