Pubdate: Tue, 28 Apr 2009
Source: AlterNet (US Web)
Copyright: 2009 Independent Media Institute
Website: http://www.alternet.org/
Author: Joshua Holland
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

AMERICA'S SCHIZOID POT CULTURE

4 In 10 Have Smoked It, And Millions Are Still Getting Busted

The Obama administration is giving mixed signals on its pot policies 
despite a tidal shift in social views on legalizing marijuana.

Fully 80 percent of Americans approve of the use of marijuana for 
medicinal purposes, and fewer than one in five favor locking up 
non-violent adults who use pot in general. But since the inception of 
the disastrous "War on Drugs," politicians from across the political 
spectrum have found that being a dedicated drug warrior is an easy 
way to appear "tough on crime" without much political risk.

The result of that divide is a truly schizoid patchwork of laws 
regulating the use of cannabis. Several states have decriminalized 
the possession of small amounts of weed -- most recently 
Massachusetts this year -- and 13 states have legalized medical 
marijuana. Yet each and every year we continue to lock up 
three-quarters of a million Americans for possession of marijuana and 
waste an estimated $14 billion on our misguided prohibition of a cash 
crop that's worth more than wheat and corn combined.

The Obama administration has sent markedly mixed signals about 
whether it would continue the most regressive element of the "Drug 
War" -- Bush's policy of going after medical marijuana providers in 
the states that have legalized the industry.

Bush turned federal law-enforcement into a de facto White House veto 
over state-level drug laws (and, often, over the will of the people 
- -- 8 of the 13 states that permit the use of medical marijuana got 
there through a referendum process). It's cliched to describe the 
more labyrinthine corridors of our legal system as "Kafkaesque," but 
the way Bush did it would draw a knowing sigh from old Franz.

Officially, in states where they're legal, the federal government 
only goes after medical marijuana operations when they violate both 
federal and state law. Officially. But after the DEA raids these 
shops, their owners are prosecuted in federal courts, and they need 
only be charged under federal laws. And here's where it goes from bad 
policy to simple insanity: thanks to a 2005 Supreme Court decision in 
Gonzalez v. Raich, defendants are prohibited from entering evidence 
at trial that they were in compliance with local and state laws when 
they were busted.

Then, if convicted, these operators of businesses that are legal in 
their respective states face harsh mandatory drug sentences in the 
federal justice system -- long minimums that Congress required in the 
1980s ostensibly to deter "drug king-pins."

That's the situation Charles Lynch is looking at. Lynch is facing up 
to 20 years in prison after being convicted under federal law for 
running a medical marijuana clinic in Morro Bay, California. Before 
DEA agents busted him, Lynch had been in business for 11 months. 
According to the Los Angeles Times, the clinic had "the blessing of 
the city's mayor and other public officials" -- including the city's 
Chamber of Commerce. Morro Bay City Attorney Rob Schultz said that he 
had received only one complaint about Lynch's operation in that time 
- -- and that was from someone griping about the quality of the pot 
Lynch sold. The town's mayor, Janice Peters, described Lynch as 
"polite, compassionate," and at an April 23 sentencing hearing Steven 
Beck, the father of a 17 year-old suffering from bone cancer who, 
following the advice of his oncologist, had bought marijuana from 
Lynch's clinic to treat the side-effects of chemo-therapy, told the 
court that Lynch had often given the boy pot for free. After 
describing how the teen "could not eat. He could not sleep. His 
personality became dark and angry," Beck added, "I never felt as 
though Charlie was there for the money."

Federal prosecutors charge that Lynch violated California's medical 
marijuana law because he wasn't a primary care-giver, but Joe Elford, 
Chief Counsel for Americans for Safe Access, a medical marijuana 
advocacy group, said, "there is not even any evidence that state law 
was violated." Elford added, "It's disingenuous to accuse people of 
state law violations and then prosecute them under federal law, 
thereby denying them an adequate defense in federal court."

While medical pot operators can't use their compliance with state 
laws as a defense, it can be brought up at sentencing as a mitigating 
factor. On April 23, District Court Judge George Wu, a 
Bush-appointee, said that he was inclined to impose a sentence less 
harsh than the mandatory minimum, but it wasn't clear that the law 
would allow him to do so (there is a so-called "safety-valve" in the 
mandatory sentencing scheme that allows judges leeway in certain 
circumstances, but Wu was unsure whether Lynch's case qualified). "If 
I could find a way out, I would," Wu said. He gave lawyers until June 
2 to file briefs on the matter.

Lynch's case is seen as a test of whether the Obama administration 
will reverse the Bush Justice Department's policy towards medical 
marijuana, and so far the signals have been decidedly mixed.

In March, the New York Times reported that Attorney General Eric 
Holder had "outlined a shift in the enforcement of federal drug laws, 
saying the administration would effectively end the Bush 
administration's frequent raids on distributors of medical 
marijuana." Holder said the "Justice Department's enforcement policy 
would now be restricted to traffickers who falsely masqueraded as 
medical dispensaries and 'use medical marijuana laws as a shield.'"

A week later, a San Francisco dispensary was raided by the DEA. In 
early March, the Los Angeles Times reported, "the U.S. attorney in 
Los Angeles sent a confidential memo to prosecutors last week 
ordering them to stop filing charges against medical marijuana 
dispensaries, then abruptly lifted the ban."

The conflicting signals prompted Judge Wu to ask for guidance from 
the Justice Department before proceeding with Charles Lynch's case. 
The DOJ responded with a memo saying, "the Office of the Deputy 
Attorney General has reviewed the facts of this case and determined 
that the investigation, prosecution, and conviction of defendant are 
entirely consistent with the policies of DOJ and with public 
statements made by the Attorney General with respect to marijuana 
prosecutions." But, again, Charles Lynch wasn't charged with 
violating California law.

If this seems a mess of contradictory statements and actions, that's 
because it is. Yet marijuana reform advocates caution that it's 
premature to judge the young administration's policies. Carey Woodson 
of Americans for Safe Access told the Drug War Chronicle, "I think 
it's confusion --- it's important to remember that we aren't even 
close to having the appropriate Obama officials seated at this 
point." (This was before the San Francisco raid).

But in a country that imprisons hundreds of thousands of people each 
year for simple possession -- for a "crime" that 4 out of 10 adults 
have committed -- it bears close scrutiny. So far, we haven't seen 
the change that we were promised.

Joshua Holland is an editor and senior writer at AlterNet.
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MAP posted-by: Jay Bergstrom