Pubdate: Tue, 04 Jul 2017
Source: Lexington Herald-Leader (KY)
Copyright: 2017 Lexington Herald-Leader
Author: Andrew Wolfson


On a cool, rainy day, more than 200 people crowd under a tarp in the
parking lot of Big Mama's Restaurant, bidding on bicycles, air rifles
and marijuana posters to raise money to support a jailed local legend.

They have a lot of work to do, because Cornbread Mafia leader Johnny
Boone, captured in Canada and returned to Kentucky after eight years
as a fugitive, faces life in prison if convicted on his third strike,
for growing 2,421 marijuana seedlings on a farm. In 29 states and the
District of Columbia, marijuana is legal for recreational or medicinal
purposes, or both. But the federal government, while giving a virtual
free pass to growers in states where marijuana is legal, continues to
seek long mandatory minimum penalties against defendants in Kentucky
and other states where it is not.

Because of that unequal enforcement, the difference between becoming a
successful entrepreneur in a fast-growing industry or a federal inmate
depends on the state where you do your business, the Courier-Journal

To Boone's supporters at the $10 catfish supper and auction in Marion
County, the distinction makes no sense. "He wasn't out raping or
murderin' -- he just grew a green plant," said disabled veteran Craig
Lee of Lebanon.

"Marijuana ain't so bad," said A.B. Thompson of Loretto, a carpenter
who served three years in prison in the 1980s for growing it as part
of Boone's Cornbread Mafia, which federal prosecutors called the
largest domestic marijuana producing organization in the nation.

Louisville attorney Tom Hectus, one of three lawyers for Boone, said,
"It has always seemed a bit odd to me that marijuana is against
federal law but prosecuted in some states and not in others." And the
penalties, he said, "are way out of line with what most people in this
society think is appropriate."

A Quinnipiac University poll in April found that 60 percent of
Americans think marijuana should be made legal, and only 34 percent
disagreed. And with equal support from Republicans and Democrats, the
House overwhelmingly passed a spending bill in 2015 that forbids the
use of federal money to block state medical-marijuana laws.

U.S. Attorney John Kuhn, who could seek a life sentence for Boone,
declined to comment on his case or on the disparity in federal
marijuana prosecutions. Kuhn said he doesn't want to make any
statements that might jeopardize Boone's right to a fair trial.

But U.S. Attorney General Jeff Sessions has made no secret of his
views on marijuana, which he has described as "only slightly less
awful" than heroin.

Last month, Sessions sent a two-page memo to federal prosecutors
reversing former Attorney General Eric H. Holder's directive to avoid
charging certain defendants with offenses that would trigger long
mandatory minimum sentences. Sessions told more than 5,000 assistant
U.S. attorneys to pursue the toughest penalties.

A Justice Department spokesman said Sessions hasn't yet overturned the
Obama administration's home-rule marijuana policy that in effect
ordered federal prosecutors to look the other way in states where
marijuana is legal.

Under that edict, U.S. prosecutors haven't charged growers in those
states as long as their operations didn't involve an aggravating
factor, such as the use of violence or firearms or the sale to minors.

If the Justice Department decided to prosecute growers in states where
marijuana is legal under state law, it would wreak havoc in Washington
state, where sales from recreational marijuana recently reached the $1
billion mark since it was legalized in 2015. In New Mexico, a private
company broke ground in February on the nation's largest medical
marijuana plant, which will cover about 100 football fields and offer
space for as many as 40 million plants.

Federal law characterizes marijuana as a Schedule 1 controlled
substance, the same as heroin, and it is illegal to possess a single
joint. Controlled substances are defined as any drug that has a "high
potential for abuse" and no currently accepted medical use for treatment.

Boone is charged with manufacturing more than 1,000 marijuana plants
and with knowingly possessing with intent to distribute more than 50
kilograms of marijuana, both of which carry sentences of 10 years to
life. The government could seek a mandatory life sentence because of
his previous convictions.

Boone was convicted in 1985 for possession with intention to
distribute pot -- some of it imported from Belize -- and he was
sentenced to five years in prison. He also was convicted in 1989 for
unlawful manufacture of 1,000 plants or more, for which he was
sentenced to 20 years and was paroled in 1999.

Then-U.S. Attorney Joseph Whittle said after Boone's second bust that
he was a leader in the Cornbread Mafia, which pooled its money,
machinery, knowledge and labor to produce $350 million in pot that was
seized in Illinois, Indiana, Kansas, Kentucky, Michigan, Minnesota,
Missouri, Nebraska and Wisconsin.

Released from prison, Boone returned to the business, the government
says. In May 2008, after aerial surveillance, Kentucky State Police
and the DEA raided his farm in Springfield, about 60 miles southeast
of Louisville, and found 2,421 marijuana seedlings on a pair of
flatbed trucks that could be pulled in and out of a barn to get sun.

But Boone wasn't there, and he disappeared before he was indicted
later that year. He wasn't found until eight years later, when he was
arrested Dec. 22 near Montreal, Canada.

Hectus suggested that Boone might argue that he is the subject of
selective enforcement in that he is being prosecuted for the same
conduct that isn't punished in states where marijuana is legal under
state law.

But Melanie Reid, a former prosecutor in the Justice Department's
Narcotics and Dangerous Drug Section, said she doesn't think any
defendant has mounted that defense successfully.

Do we really want to take DEA agents and federal prosecutors off
prosecutions of opioids and heroin and fentanyl, which are killing
people -- or marijuana traffickers?

Reid, a law professor at Lincoln Memorial University in Tennessee,
said federal prosecutors have broad discretion to charge "who they
want, when they want."

She also said the Justice Department's marijuana policy is neutrally
written. It says prosecutors should review marijuana cases on a
case-by-case basis and weigh all available information and evidence,
including whether the operation is "demonstrably in compliance with a
strong and effective state regulatory system."

"I don't think it would matter if Johnny Boone was growing marijuana
in Kentucky or Colorado," she said. "He would not be growing marijuana
in compliance with state laws and regulations."

Federal marijuana manufacturing charges are relatively rare in
Kentucky, and the numbers have declined in recent years, according to
the U.S. Sentencing Commission.

Only 15 defendants were sentenced on trafficking charges in the
Western District in 2015, the most recent year for which figures are
available, and 21 in the Eastern District.

According to news releases from the U.S. Attorney's Office in
Louisville, the last offenders sentenced for growing 1,000 kilos or
more -- which can carry a life sentence -- was in 2013, when the last
of 21 defendants was sentenced in a case from Warren County.

Whittle, who was U.S. attorney from 1983 to 1993, initially said in an
interview that Boone was a "kingpin" and that he and other large-scale
growers deserve severe punishments.

But in the next breath the former prosecutor said, "I'm not sure that
use of marijuana should not be legalized for use and regulated, so you
could tax it and then go after unlicensed sellers."

Kerry Harvey, a former U.S. attorney in Eastern Kentucky, said his
office was prosecuting 50 to 100 marijuana-growing cases a year when
he was appointed in 2010, but he eventually decided that was consuming
too many resources.

Harvey, who resigned this year, said he asked himself, "Do we really
want to take DEA agents and federal prosecutors off prosecutions of
opioids and heroin and fentanyl, which are killing people -- or
marijuana traffickers?"

He said he decided to focus on the former.

Harvey said he thinks major marijuana growers deserve long

"But generally speaking, mandatory life sentences for nonviolent
offenses are suspect," he said. "I would use our resources to take
people off the streets who are selling drugs that are killing people."
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