Pubdate: Tue, 29 Oct 2013
Source: Baltimore Sun (MD)
Copyright: 2013 The Baltimore Sun Company
Author: Justin Fenton


Sentencing Rules No Longer Reflect Altered U.S. Position, He Says

A federal judge in Maryland handed down lighter prison sentences 
Monday to defendants in a huge marijuana distribution case, saying 
that such offenses are "not regarded with the same seriousness" as 
they were just a few decades ago.

U.S. District Judge James K. Bredar said the federal government's 
response to marijuana legalization in some states - notably the 
decision not to pursue criminal cases against dispensaries and others 
handling the drug in accordance with those states' laws - raises 
concerns of "equal justice."

In handing down a nearly five-year sentence, Bredar said he felt 
Scott Russell Segal had committed a significant crime for his role 
moving hundreds of kilograms of marijuana and laundering the proceeds.

But the judge used his discretion to ignore federal guidelines, which 
equate marijuana with harder drugs like heroin and called for Segal 
to receive eight to 11 years in prison. A second defendant also got a 
shorter sentence than called for in the guidelines.

"It's indisputable that the offense is not regarded with the same 
seriousness it was 20 or 30 years ago when the sentencing guidelines 
. which are still in use, were promulgated," Bredar said.

Bredar's decision reflects an evolving attitude toward marijuana and 
how shifting state laws are compelling federal authorities to adapt. 
The judge had called for a broader discussion on the matter last week 
and said it might be time to compare marijuana trafficking to 
smugglers of improperly taxed cigarettes.

More judges across the country are imposing shorter sentences in 
marijuana cases, especially after the Justice Department issued its 
new guidelines on prosecutions earlier this year, said Mona Lynch, a 
criminology professor at University of California, Irvine. Segal's 
sentence is "not unusual," she said.

"There's very few people remaining who see the drug guidelines as 
being a sane and workable system because the sentences are so high 
and driven by weight instead of individual culpability," Lynch said.

The guidelines are based on a variety of factors, including prior 
offenses and the defendant's role. 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.

Kwame Manley, a former assistant U.S. attorney now in private 
practice, also said judges are more frequently sentencing defendants 
to less time than what's called for in the guidelines for marijuana cases.

"You're going to see, going forward, a lot of federal judges saying 
that if the Department of Justice is having a different view of how 
to enforce marijuana laws, then the judges should also think 
differently about their discretion in imposing sentences for 
marijuana," Manley said.

But Michael Gimbel, the former drug czar for Baltimore County and now 
an independent consultant, said views on personal use of marijuana 
should not become confused with how to address more widespread distribution.

"Drug dealing has nothing to do with the debate about pot," he said.

Maryland U.S. Attorney Rod J. Rosenstein said prosecutors would 
continue to go after large-scale distributors like those charged in 
Segal's case but have no plans to appeal Bredar's sentences. He said 
judges have different views but that prosecutors would remain 
consistent in their approach.

"We have pretty clear guidance from the attorney general to continue 
to pursue cases involving drug distribution in violation of state 
law," Rosenstein said.

Segal, 32, of Middlesex, N.J., is one of 22 people 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. According to his plea agreement, Segal stored 
drugs in his home and helped transport them.

His attorney, David Fischer, said in court that while marijuana 
remains illegal in Maryland, state judges have been sending a message 
about the seriousness of such drug crimes with lighter penalties for 
offenders. He asked that Bredar sentence Segal to home detention, or 
a "short period" of incarceration.

Bredar, who once worked as a federal public defender and prosecutor 
in Colorado and was nominated to the bench by President Barack Obama 
in 2010, rejected the comparisons to possession cases, saying the 
amount of drugs being trafficked in Segal's case were among the 
largest he's ever seen.

"No state has legalized or seems ready to legalize the sort of 
actions these defendants were involved in," he said.

"If what your client and co-defendants did wasn't a significant 
violation of federal drug laws, then marijuana is effectively legal," 
Bredar said. "And it's not, regardless of what the people of two 
states have decided," he added, referring to Washington and Colorado, 
where voters approved measures to permit the recreational use of marijuana.

Still, Bredar sentenced Segal and one of his co-defendants, 
43-year-old Steven Madden, to prison terms that are about half as 
long as prosecutors were seeking. And he argued that the factors to 
be considered in sentencing have been changed "not just by what is 
occurring around the country in terms of legalization, but more by 
the government's response to it."

Madden, the second defendant who played a peripheral role in the 
organization, was sentenced to 18 months in federal prison, less than 
the 33 to 41 months called for in the guidelines. Madden said he had 
sold about 50 pounds of marijuana on the side of his flea market 
business and knew of the larger operation.

Assistant U.S. Attorney Andrea L. Smith argued at a hearing last week 
that marijuana remained a serious drug and noted that the case 
involved guns and violence. 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.

Public attitudes toward marijuana are evolving, and a recent Gallup 
poll 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 this year 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.
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MAP posted-by: Jay Bergstrom