Pubdate: Sun, 26 Jul 2009
Source: Rapid City Journal (SD)
Copyright: 2009 The Rapid City Journal
Contact:  http://www.rapidcityjournal.com/
Details: http://www.mapinc.org/media/1029
Author: Kevin Woster
Bookmark: http://www.mapinc.org/people/Bob+Newland
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

JUDGE DEFENDS MARIJUANA SENTENCE

Jack Delaney Imposed a Gag Order on Political Activist Bob Newland

Circuit Court Judge Jack Delaney had given plenty of thought to his
sentencing options by the time he arrived in court July 6.

It was a fairly typical charge but a not-so-typical defendant: Bob
Newland.

The well-known public advocate for the legalization of marijuana for
medical purposes had previously pleaded guilty to felony possession of
the drug. And Delaney wanted to make the sentence sting without
imposing an unduly harsh prison term on a 60-year-old man with a
relatively clean criminal record.

So in essence, he told him to shut up for a year about one thing:
medical marijuana, and an ongoing campaign to bring the issue to
another public vote in 2010.

Delaney sentenced Newland to one year in Pennington County Jail but
suspended all but 45 days under a set of stipulations that included
weekly drug tests, random searches and a one-year ban on public
advocacy for medical marijuana.

Delaney rejects assertions by some that he was imposing his personal
beliefs on medical marijuana through the sentence.

"I have no concern whatsoever about whether medical marijuana is
legalized," Delaney said during an interview with the Journal in his
office. "The important thing was to have a sentence crafted to impose
a penalty on Mr. Newland that was significant to him."

The advocacy ban was an infringement on Newland's First Amendment
rights. Delaney doesn't deny that. But neither does he consider it
more onerous or any less appropriate than many other infringements
imposed as part of felony sentences.

The random searches Newland faces in the next year would be violations
of his constitutional rights, but for the felony plea. Felons can face
otherwise unconstitutional firearms restrictions and the right to
associate with certain people or go to certain establishments, Delaney
said.

"We restrict speech as well in a lot of protection orders, or in
divorces, where in some cases the parties' freedom to speak to one
another may be limited," he said.

And given the fact that the maximum penalty for Class 6 felony
marijuana possession was two years in prison and a $4,000 fine,
Newland's sentence could be considered light by others who face
similar charges, Delaney said. He was particularly concerned about
younger minority defendants who might get a longer jail term for the
same crime.

"I'm sitting there faced with a gentleman who is older, well known,
who is thought by many to be considerably more well off than he is,
and he is seeking a sentence that is going to be considerably more
lenient that what they (minority defendants) might receive," Delaney
said. "So my thought was that I have to take something from him that
is as valuable or maybe even more valuable than his freedom."

Delaney settled on what he calls the "partial infringement of speech,"
as well as limits on his freedom of association in support of medical
marijuana. Newland may still meet in private with medical marijuana
advocates to plan the medical-marijuana campaign. But he cannot appear
publicly in or speak on or for the campaign.

"I'm taking away a legal right of the person to associate," Delaney
said. "I'm taking away his liberties. But not nearly as much as if he
were in jail."

Typical sentences for the same felony possession charge range from 45
days to 120 days in jail, Delaney said. But many of those who receive
such sentences have more criminal marks on their record, he said.

Delaney has received about 40 e-mails commenting on the verdict, with
many critical of the ban on speech and public involvement in the
medical marijuana campaign. Many of the e-mails came from people
active in the medical marijuana movement, he said, and some engaged in
"name calling."

Others, however, were more understanding when Delaney explained his
rationale.

"All felonies are serious crimes, and they have a wide range of
impacts on anybody who's a felon," he said. "This is unusual. And if
it hadn't been Bob Newland, it wouldn't have had the same impact."
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