Sentencing

Idaho has some great scenery and some great skiing, it has the Snake River Canyon, and it has a huge knot of mountains in the middle of the state that are very appealing to those who like rugged, isolated beauty. I had intended to explore them this summer, but I've changed my mind. And this story is the reason why:

Medical Marijuana Defense Falls Flat REXBURG — The Fremont County prosecutor says a drug bust in Island Park illustrates that claiming a medical use of marijuana with a certificate from another state won't help you in Idaho. Aurora M. Hathor-Rainmenti, 35 , of Garberville, Calif., was arrested Friday after she was stopped for speeding near Mack's Inn. Fremont County deputies found a baggy containing marijuana in her car with the help of a drug dog. Hathor-Rainmenti was charged with one count of possession of marijuana and two counts of possession of drug paraphernalia, all misdemeanors. Fremont County Prosecutor Joette Lookabaugh said Hathor-Rainmenti said she had a certificate from the state of California allowing for medical use of marijuana. "We want the public to know that medical marijuana certificates, even if they're from surrounding states, are not honored in Idaho," Lookabaugh said.

Okay, I understand this. Idaho is under no obligation to honor a medical marijuana card from a different state. Medical marijuana users be forewarned: If you're headed for benighted redneck country, don't expect your card to protect you. There is, however, no suggestion that Hathor-Rainmenti is anything other than a legitimate medical marijuana patient. Still, the local prosecutor takes the opportunity to pile on the charges: Not only does she get a pot possession charge, she also gets two paraphernalia charges (did she have two rolling papers, or what?). Absolutely typical, of course, and absolutely disgusting. Just another way for prosecutors to stack the deck. And not limited to Idaho. Similarly, a judge in Idaho, if he had an ounce of compassion in his body, could take her medical marijuana patient status into account during sentencing. There is no sign he did that:

On Monday Hathor-Rainmenti pleaded guilty to the possession charge and one of the possession of paraphernalia charges. The other paraphernalia charge was dropped. She was sentenced to five days in jail, with 115 days at the discretion of the court along with an $800 fine.

Nice. Throwing a patient in jail for a victimless crime—and rip her off for $800. Remember, she was not charged with drugged driving—and you better believe she would have been had there been the least suggestion she was impaired. Okay, the sentence was ugly and reprehensible, but still nothing unusual in the fascistoid heartland. But here's the kicker; here's what's got me thinking boycott:

In addition, there is a civil forfeiture under way on the borrowed car Hathor-Rainmenti was driving, as well as on the $514 in cash that was confiscated during the arrest.

Say what?!?! Asset forfeiture laws are supposed to be directed at people getting rich from selling drugs. They're problematic enough in that regard, since they create an incentive for cops to trawl for cash, distorting law enforcement priorities in the constant search for the next big score—with the loot typically used to pay for more cops and more drug dogs to find more cash to seize to pay for more cops and more drug dogs and…In short, they are little more than a form of institutionalized, legalized corruption. But Hathor-Rainmenti only had a bag of weed. She was not charged with drug distribution. And the state of Idaho is going to steal her car and every penny she had on her? This is nothing but robbery under color of law. This is the criminal justice system as organized thuggery. The thieving state of Idaho can go to hell. I am sick to death of this sort of crap. It happens all the time, and not just in Idaho. But we have to start somewhere, and that's why I'm suggesting that perhaps a boycott is in order. Idaho is a relatively small state in terms of population, and it is highly dependent on tourism. In other words, it's vulnerable. I am aware that boycotts are a blunt instrument that may not directly harm the people they are aimed at—the cops who make the busts, the prosecutors who try to hammer good people down, the judges who routinely impose such obscene sentences, the politicians who write the laws. But if the ski resorts in Sun Valley or the river guides and hotel owners along the Snake River Valley start seeing cancellations, perhaps they will be motivated to start putting some money into campaigns to end this evil. To be honest, I'm getting frustrated with playing games with state legislatures and I'm thinking it's time for some creative direct actions. We can spend years at the statehouse only to win a piddling decriminalization bill. Whoopee! Now you can only steal my stash and a few hundred of my hard-earned dollars instead of stealing my stash and my money and giving me a criminal record and some jail time. That is progress of a sort, but not nearly enough. Ditto with medical marijuana. Why is it that it seems like every new medical marijuana law is more restrictive than the last? Pretty soon we're going to end up with a medical marijuana law somewhere where you have to be dead already to qualify. So…what about an organized boycott of Idaho, for starters? Would medical marijuana defense groups like Americans for Safe Access get on board with that? Why or why not? What about NORML and the Marijuana Policy Project? Or the Drug Policy Alliance? Just the announcement of a boycott ought to start a real ruckus among the good burghers of Boise. There are 20 million or so pot smokers in the US, and they have friends and families. We are talking about tens of millions of people who could potentially participate. It could even have a real economic impact, and if that's what it takes to beat some sense into these yahoos, so be it. Individuals could do their part by writing letters to the state and local chambers of commerce, to the state tourism bureau, and to state newspapers explaining why they are going elsewhere this year. Reservations could be made and then canceled. Let 'em feel the pain. As I've said, I'm getting really tired of progress by the millimeter. I'm open to some creative tactics. A directed boycott is one of them. Here's another one: The drug defense bar grows rich defending pot people. How about after charging us $5,000 to show up in court and cop a guilty plea and $15,000 to pursue an appeal on constitutional grounds a few hundred times, you give back to the community you grow rich off of? How about a group of you picking a particular egregious locality and pro bono defending every drug case like you meant it? I mean filing motions, going to trial, no plea bargains, demanding jury trials, the works. You could probably freeze the system in a few weeks. Yeah, I know there are issues, but we could work them out. Sure, things like boycotts and forcing the criminal justice system are messy and difficult. But in the meantime, the wheels of injustice keep grinding away, chewing up our people in the process. Anybody got any better ideas? Do we begin with boycotting Idaho? Count me in.

Marc Emery is no longer a free man. Canada's Prince of Pot was taken into custody today. He turned himself in at the BC Supreme Court in Vancouver, and is now jailed in Vancouver awaiting imminent extradition to the US, where he is set to plead guilty to one count of marijuana distribution for selling pot seeds over the Internet. Emery is expected to be sentenced to five years in federal prison in the US for his seed sales. He sold millions of seeds in the decade prior to his 2005 arrest and became a leading hemispheric advocate for marijuana legalization, using the profits from his seed sales to fund reformers across the continent. He also called out then drug czar John Walters for lying about marijuana and interfering in Canadian domestic politics, leading then DEA head Karen Tandy to issue this press release lauding his arrest as a blow to the legalization movement:

Today's DEA arrest of Marc Scott Emery, publisher of Cannabis Culture Magazine, and the founder of a marijuana legalization group -- is a signficant blow not only to the marijuana trafficking trade in the U.S. and Canada, but also to the marijuana legalization movement. His marijuana trade and propagandist marijuana magazine have generated nearly $5 million a year in profits that bolstered his trafficking efforts, but those have gone up in smoke today. Emery and his organization had been designated as one of the Attorney General's most wanted international drug trafficking organizational targets -- one of only 46 in the world and the only one from Canada. Hundreds of thousands of dollars of Emery's illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canda. Drug legalization lobbyists now have one less pot of money to rely on.

Can you say politically motivated? I knew you could. One American attorney familiar with his case told me this weekend that Emery could have fought the prosecution and sought to have shown that it was unlawfully politically motivated, but that Emery and his Canadian legal team didn't want to take that risk. That's understandable, given that Emery was looking at decades or even life in prison if he lost. Now, America's legions of unknown marijuana martyrs are being joined by one very big name. Let's hope that Emery's unjust imprisonment turns a spotlight on the hideousness of a US federal legal system that turns a blind eye to torture but cages a man for selling pot seeds. The Vancouver Sun's Ian Mulgrew sums it up nicely in an op-ed piece entitled Marc Emery's Sentence Reeks of Injustice and Mocks Our Sovreignty:

After two decades as Canada's Prince of Pot, Marc Emery will surrender himself today in B.C. Supreme Court and become the country's first Marijuana Martyr. Emery will begin serving what could be as long as five years behind bars as Uncle Sam's prisoner for a crime that in Canada would have earned him at most a month in the local hoosegow. It is a legal tragedy that in my opinion marks the capitulation of our sovereignty and underscores the hypocrisy around cannabis. Emery hasn't even visited America but he was arrested in July 2005 at the request of a Republican administration that abhorred his politics. He is being handed over to a foreign government for an activity we are loath to prosecute because we don't think selling seeds is a major problem. There are at least a score of seed-sellers downtown and many, many more such retail outlets across the country. In the days ahead, once the federal justice minister signs the extradition papers, Emery will be frog-marched south to Seattle where his plea bargain will be rubber-stamped and he will be sent to a U.S. penitentiary. For comparison, consider that the B.C. Court of Appeal last year said a one-month jail sentence plus probation was appropriate punishment for drug and money-laundering offences of this ilk. The last time Emery was convicted in Canada of selling pot seeds, back in 1998, he was given a $2,000 fine.

There's more at the link above, but you get the gist. Mulgrew, of course, is right on the money. The Canadian government has shamefully failed to protect one of its citizens from the crazed drug war machine south of the border, and the US government is shamelessly imprisoning yet another non-violent pot person--this time mainly to shut him up. We should demand that Marc Emery and all other marijuana prisoners be immediately released. Short of that, we should, as Emery requests, demand that he be allowed to serve his time at home in a Canadian prison.

I wrote about the Will Foster case in the Chronicle last week. Here's a brief summary: Foster had a small medical marijuana garden in Tulsa that was raided in 2005. Two years later, he was sentenced to an insane 93 YEARS in prison. Only after a publicity campaign in which DRCNet played a vital role was he resentenced to merely 20 years, and after being twice denied parole, he was paroled to California. Although Oklahoma thought Foster should be on parole until 2011, California decided he didn't need any more state supervision and released him from parole after three years. That wasn't punitive enough for Oklahoma. Although Foster had left the Bible Belt state behind with no intention of ever returning, Oklahoma parole officials issued a parole violation warrant for his extradition to serve out the remainder of his sentence. When Foster had to show ID in a police encounter, the warrant popped up, and he was jailed. Desperate, Foster filed a writ of habeas corpus and won! A California judge ruled the warrant invalid, and Foster was a free man again. But not for long. It's thirst for vengeance still unslaked, the state of Oklahoma issued yet another parole violation warrant for Foster's extradition because he refused to agree to an extension of his parole to 2015--four years past the original Oklahoma parole date. Then he got raided in California, thanks to bad information from an informant with an axe to grind. Foster had a legal medical marijuana grow, but it took a hard-headed Sonoma County prosecutor more than a year to drop charges, and Foster has been jailed the whole time. Now that the charges have been dropped, Foster still isn't free because Oklahoma still wants him back. Extradition warrants have been signed by the governors of both states, and he was days away from being extradited in shackles when he filed a new habeas writ this week. Filing the writ will stop him from being sent back to Oklahoma, but it also means he's stuck in jail for the foreseeable future. The writ is a legal strategy; his real best hope is to get one of those governors to rescind the extradition order. You can help. Click on this link to find out how to write the governors. I think a campaign of letters to the editor of Oklahoma papers might help, too. Those letters might ask why Oklahoma wants to continue to spend valuable tax dollars to persecute a harmless man whose only crime was to try to get some relief for his ailments--and who has no intention of ever returning there. ...So, anyway, I went to see Will at the Sonoma County Jail Saturday night. But I didn't get in. The steel-toes in my footwear set off the metal detector, and I quickly found out such apparel was a security risk. Who knew? I'll go back later this week. I guess I'll wear sandals. In the meantime, there are letters waiting to be written. Keyboard commandos, saddle up!

The Canadian House of Commons today passed the Conservative government of Prime Minister Steven Harper' C-15 crime bill, which will institute mandatory minimum sentencing for some marijuana and other drug offenses. The vote, in which after dilly-dallying for days, the opposition Liberals joined in, came despite hearings in which no witnesses favored such a tough on crime approach north of the border. It's not a done deal yet. The bill must still be approved by the Canadian Senate, which issued a report several years ago calling for the government to head in the opposite directoin. But the Senate, which is appointed, is not known for bucking the government and the House of Commons. That the Liberals buckled for fear of being "soft on crime" and supported the Conservatives in this giant step backward is disappointing but not surprising. Oh, Canada! Once we looked to you for a progressive example on drug policy. I will be writing about all this for the Chronicle later this week, as well as focusing on our other border with a feature article on the Obama administration's new initiative to thwart the Mexican so-called drug cartels.

This Cleveland Plain-Dealer story just completely blows the lid off the inherent racism of the war on drugs. Reporter Bob Paynter pulled out all the stops, digging through court records to demonstrate how people of color receive harsher punishments than white defendants for the same drug crimes.

This is superb reporting, a rare find when it comes to criminal justice issues. Reporters across the nation should repeat Paynter’s methodology. Racial disparities are endemic to the war on drugs and you will find them everywhere. All you have to do is look.

George Michael’s latest drug arrest has reduced Ross Clark at The Times Online to a sputtering mess. In an embarrassing editorial entitled It's just as wrong to use drugs as it is to sell them, Clark compares drug use to child pornography and calls for casual users to serve long sentences:

With stolen goods, illegal weapons and child pornography, the law is clear: the user is as guilty as the supplier. The police didn't let Gary Glitter off with a little rap on the knuckles and the rest of us didn't shake our heads and say: “Poor Gary, how sad that he has fallen victim to these evil porn dealers.”

He was prosecuted, quite rightly, on the basis that those who provide the market for child porn are implicated in its production. So why then do such different attitudes persist in the case of drugs? If it is wrong to produce and trade drugs, then it is equally wrong to use them.

Clark goes on explain that drug addiction doesn’t happen to intelligent people:

…Among drug users and drug peddlers alike, there are, of course, sometimes mitigating circumstances. If you have been brought up by drug addicts, beaten and abused, it shouldn't come as too much of a surprise if you grow up with a somewhat confused sense of right and wrong.

But none of this applies to George Michael, who is intelligent enough to know that taking crack is not just an issue of personal liberty: there is a clear association between use of the drug and propensity to commit violent crime. If caught with illegal drugs he should be treated to no less a punishment than if he had smuggled them into the country and sold them on the streets.

Dude, chill out. No one wants to spend $250,000 imprisoning a guy for $20 worth of dope. I’m sure you had fun writing this, but do you actually agree with your own idea? Did you know that it costs money to keep people in jail? If you hate drug users so much, do you really want to pay for all their food and clothes and healthcare for 10 years every time we catch one? No you don’t, so shut up before we lock George Michael in your pantry and make you take care him forever.

Pete Guither points out that the Republican Party’s newly released platform pledges to continue the disastrous and increasingly unpopular war on drugs:

Continuing the Fight against Illegal Drugs

The human toll of drug addiction and abuse hits all segments of American society. It is an international problem as well, with most of the narcotics in this country coming from beyond our borders. We will continue the fight against producers, traffickers, and distributors of illegal substances through the collaboration of state, federal, and local law enforcement.

In 2008, I’m beginning to doubt that anyone is going to win any votes with this kind of language. Given the risk of rubbing the libertarian crowd the wrong way, it wouldn’t have surprised me to see this rhetoric left out altogether. Of course, that would have been a conspicuous omission, I suppose, and you can bet that we’d have more than a few words to say about that.

On the plus side, Pete noticed that the section called "Locking Up Criminals" omits drug crimes from the list of offenses for which the Republicans support mandatory minimum sentencing:

We support mandatory sentencing provisions for gang conspiracy crimes, violent or sexual offenses against children, rape, and assaults resulting in serious bodily injury.

That’s really a rather positive sign, indicating that we may be moving towards a bipartisan consensus that our drug laws have gone too far.

I’m also tempted to theorize that Obama’s decision to bring Biden onto the ticket may have been a contributing factor here. Months ago, Dick Morris editorialized in favor of attacking Obama on sentencing reform, arguing that by supporting revised crack sentencing guidelines, Obama wants to let thousands of crack dealers out of jail. It’s cynical and ruthless ploy that becomes considerably harder to pull off with Biden on the ticket. Given his central role in pushing through the original sentencing disparity, and his recent evidence-based reversal, Biden has all the credibility to blow any "soft on crack" attacks back to the '80's where they belong. I’m no fan of Biden’s drug war record, but there’s an interesting dynamic here, which I'll concede to those who've argued that Biden's awful history could end up providing cover for reform.

Which brings us to the obvious question: if the democrats don’t support mandatory minimums for drug offenses, and the republicans don’t support mandatory minimums for drug offenses, who does?

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Via John Tierney at the New York Times, posted late last night... Judge Leonie Brinkema sentenced pain physician Dr. William Hurwitz to 57 months, more than pain treatment advocates were hoping for but considerably less than the 25 years handed down in the first trial by Judge Wexler. With time served, he could be out in 17 months. One paragraph in particular from Tierney's blog post encapsulates much of the backwardness inherent in the federal sentencing system, backwardness that affects many much more run-of-the-mill cases as well:

While there was no evidence that Dr. Hurwitz was profiting from the resale of his prescriptions -- and the jurors I interviewed said they didn’t think he intended the drugs to be resold -- he will still spend more time in prison than almost all the patients who admitting lying to him and reselling the drugs. Thanks to the deals they made to cooperate with prosecutors, seven of the nine patients got sentences ranging from 10 to 39 months. Only two got longer sentences than 57 months -- and one of them, who got 72 months, was also guilty of armed robbery and arson.

The other thing that is really troubling about this case is that jurors admitted to Tierney (previously) that they were not clear on what the law says about whether a doctor who screws up and prescribes to the wrong people, but isn't intentionally diverting drugs to the black market, should be held criminally responsible. But that is precisely the point of law on which the verdicts turned. If jurors don't understand the law they are judging, what is the justification for keeping the conviction and imprisoning someone for it? Despite the praise that has been given to Brinkema by Tierney and others for her handling of this case -- which admittedly was far better than other judges have done -- at the end of the day I have to say that I think she failed to do proper justice. I repeat, if the jurors admit that they did not understand the key point of law before them, I see no reasonable way for the verdicts to be considered legitimate, because the process itself is simply unsound. I could see an argument (theoretically) for having a third trial, but Dr. Hurwitz should be at home tonight with his family, and it's a crime that he's not -- not only for his sake, but for all the pain patients who effectively are being tortured by denial of pain medication because doctors don't want to take the risk of getting sent to prison. Lastly on this theme, think about the fact that the first set of convictions were invalidated, and this second set for the aforementioned reasons clearly should have been. That's an extraordinarily poor track record. A criminal justice system that imprisons people even when jurors admit they didn't know what they were doing is a system that is fundamentally corroded and has lost its way. Don't be proud of yourselves, feds! Despite all of the foregoing, I also have to say that I am relieved. 17 months is a long time to spend in prison, even if one hasn't already spent some years there already, but it could be much, much worse. Judge Brinkema could have given him the same 25 years, or life -- or 10 years, or 12 or 15. The trial also had a bright spot in that Brinkema saw through the misrepresentation about dosages that prosecutors had attempted:

Brinkema said she had read news accounts of the first trial and had seen some of the massive prescriptions Hurwitz had given out, including one patient who was given 1,600 pills a day. "The amount of drugs Dr. Hurwitz prescribed struck me as absolutely crazy," the judge said. But after hearing testimony from both sides, "I totally turned around on that issue," Brinkema said. "The mere prescription of huge quantities of opioids doesn’t mean anything."

In fact, there are known pain treatment cases in which the dosages were literally four times greater than the largest dosage prescribed by Hurwitz in the cases at stake (as I pointed out in a letter to Judge Wexler before the first sentencing, though obviously to no avail). Now lawyers in other pain cases (current and future) can read Judge Brinkema's comments to judges and jurors to explain why the apparently large doses may have been appropriate. The problem hasn't been a lack of experts willing to say that in trials; the problem has been that for some reason it just seems to wash over people in the face of the large number of pills. I think that having a quote like that from a federal judge will help to break through. I'm not a physician, and I'm not in a position to judge whether or not Dr. Hurwitz practiced good medicine in every case. But I'm completely confident that he did not engage any drug-dealing conspiracy. Perhaps the fact that I've met him several times in the past biases my view. But I've also met many of his former patients -- some of them I know well -- and it's a provable fact that he helped many people whom others doctors wouldn't help and who desperately needed the help, and that he gave them the benefit of thoughtful attention. A lot of these people were left in the lurch when the authorities moved against him, causing at least one suicide and arguably a few of them. Hopefully this outcome, while highly imperfect, has enough good points in it to help move things in the right direction; time will tell. You can keep with all of our pain reporting in our topical archive -- RSS is available here -- email us if you'd like to run our pain feed (or any other feed we offer) on your web site.