Pubdate: Sat, 26 Oct 2013
Source: Baltimore Sun (MD)
Copyright: 2013 The Baltimore Sun Company
Contact:  http://www.baltimoresun.com/
Details: http://www.mapinc.org/media/37
Author: Ian Duncan

DRUG CRIME POLICY IN FLUX

States' Legalization of Pot Raises Sentencing Questions in U.S. Cases

A federal judge said Friday he would consider lighter-than-normal 
sentences for members of a major suburban marijuana smuggling 
organization - the latest fallout of the drug's legalization in 
several U.S. states.

U.S. District Judge James K. Bredar noted that federal authorities 
announced this summer they would not pursue criminal cases against 
dispensaries and others legally handling marijuana in states where 
the drug has been legalized.

Bredar, who called the hearing to discuss the issue, said it might be 
more appropriate to compare the defendants in the Maryland marijuana 
case to smugglers of improperly taxed cigarettes rather than treat 
them as hardened drug traffickers.

"It's a serious thing," Bredar said of the group's operation, "but 
it's not the same as dealing heroin."

Bredar's comments show how the effect of legalizing marijuana in 
Washington and Colorado last year is rippling across the country, and 
how federal authorities are struggling to adapt to changing state 
laws. The drug remains illegal under U.S. and Maryland law, but the 
case in Bredar's court also highlights evolving attitudes not just 
toward smokers but toward traffickers and dealers as well.

J. David Nick, a San Francisco-based attorney who represents one of 
the defendants in the case, said the hearing was an unusual step for 
a judge to take and that lawyers would be paying close attention to 
the outcome.

"People will be reading his opinion," Nick added after the hearing.

Bredar did not say when he would issue his verdict, but the first 
defendants in the case are scheduled to be sentenced Monday.

Public attitudes toward marijuana are rapidly evolving, and a Gallup 
poll published this week found for the first time a majority of 
respondents - 58 percent - favor legalizing it.

In Maryland some prosecutors are already experimenting with 
alternative approaches to marijuana possession cases, diverting 
defendants into programs where they can complete community service 
and avoid a conviction.

Maryland took a small step toward less restrictive marijuana laws by 
allowing the drug's use to alleviate certain medical conditions. The 
law restricts such use to tightly regulated programs operated out of 
academic medical centers. Broader decriminalization laws have failed to pass.

But Friday's hearing involved defendants convicted of running a 
smuggling operation that imported large quantities of marijuana to 
Howard and Anne Arundel counties from California and New Jersey and 
laundering the proceeds through an eBay business located in a Jessup 
warehouse. Twenty-two of the 23 people charged in the case have been 
convicted; charges against one were dismissed.

Earlier this month, Bredar canceled all of the scheduled sentencings 
in the case and announced his plan to hold a hearing on changes in 
Justice Department policy that allow marijuana handlers such as 
dispensaries and cultivation centers to operate openly in states 
where marijuana is legal.

In August, Deputy U.S. Attorney General James M. Cole issued a memo 
advising federal prosecutors to defer to regulators in states where 
marijuana has been legalized, as long as local rules are properly enforced.

At issue in the Maryland case, Bredar said, is whether that shift 
means the government has decided the drug is less serious now than 
when federal sentencing guidelines were formulated.

"Has the federal government changed its enforcement policy?" Bredar asked.

Assistant U.S. Attorney Andrea L. Smith said the topic was an 
appropriate one to discuss, but argued that marijuana remained a 
serious drug and noted that the case involved guns and violence. She 
suggested it might be more appropriate to compare marijuana dealing 
to trafficking in illegally obtained prescription pain pills rather 
than to cigarette smuggling.

In a memo filed with the court, Smith acknowledged an internal 
Justice Department debate about when to pursue cases but argued that 
once prosecutors move forward, the cases should be treated the same as before.

"The government emphasizes that the discussion within the Department 
of Justice ... is guidance on the evaluation process of what cases to 
bring, or more accurately, what cases not to bring," she wrote. "Once 
the case meets the required threshold however, it should be handled, 
prosecuted, and sentenced, as every other case before the Court."

Bredar said he recognized the legitimacy of the federal statutes 
outlawing marijuana and the serious nature of the crimes in this 
case. But he also said the federal government wouldn't necessarily 
defer to state regulators if that state had decided to legalize some 
other drugs.

"The government would never go along with this if some crazy state 
decriminalized heroin," he said.

And on a sliding scale of regulated substances, Bredar said, he 
thought marijuana had moved away from hard drugs and toward tobacco.

Sentences in federal cases are based on guidelines that take into 
account drug quantities and other circumstances in advising judges on 
the appropriate prison time. Those rules already recognize that 
dealing heroin is much more serious than dealing marijuana.

For example, all else being equal, a defendant convicted of dealing 
between one and three kilograms of heroin would face between nine and 
11 years in prison, as would someone who sold between 1,000 and 3,000 
kilograms of marijuana.

At the same time, a cigarette trafficker would have to evade $100 
million in taxes to face that length of prison sentence - a vastly 
greater weight in tobacco.

The guidelines are advisory and judges can take other factors into 
account when deciding a sentence. Bredar said he would take 
particular note of two of those factors when sentencing the 
defendants: He wants to make sure that defendants around the country 
are being treated equally and that the sentences reflect the 
seriousness of the offense.

In filings and in person in court, attorneys for the defendants in 
the case urged Bredar to depart from the usual guidelines in this case.

Nicholas J. Vitek, one of them, said that the guidelines issued two 
decades ago for marijuana had not been based on sound evidence 
regarding the dangerousness of the drug. He called the rules 
"completely useless."

He added that the new Justice Department policies marked an important shift.

"It is a recognition, perhaps implicitly, that marijuana is not as 
dangerous as the government said it was," Vitek said.
- ---
MAP posted-by: Jay Bergstrom