Two months ago, the Washington
State Liquor Control Board
gave Sean Green, CEO of Kouchlock Productions, a license to
grow up to 21,000 square feet of marijuana for the state’s newly
legal recreational market. Green, who already owns two medical
marijuana dispensaries in Spokane, is growing those plants in a
building about six miles from the office of Michael Ormsby, the
U.S. attorney for the Eastern District of Washington. Green does
not seem worried, and Ormsby has shown no interest in shutting him
down. Yet next week at the federal courthouse in
Spokane, Ormsby’s office will
go to trial in a case involving a much smaller cannabis garden,
seeking to put five medical marijuana users behind bars for terms
ranging from 10 years to life.
In August 2012, three months before Washington voters approved
I-502, which legalized marijuana for recreational use and enabled
Green to expand his business, the Drug Enforcement Administration
(DEA) raided the home of Larry Harvey, a 70-year-old retired truck
driver, and his 55-year-old wife, Rhonda Firestack-Harvey, who live
in a rural area of northeastern Washington about 10 miles from
Kettle Falls. The DEA found 45 marijuana plants, about five pounds
of pot, and a freezer full of cannabis-infused butter, cookies, and
teas. The Harveys say the cannabis was intended for medical use by
them, their 33-year-old son, Rolland Gregg; his 35-year-old wife,
Michelle; and a 38-year-old family friend, Jason Zucker. All five
have medical recommendations, which under
Washington law gives them an affirmative defense against
possession and cultivation charges.
That defense applies to cultivation of up to 15 plants and
possession of up to 24 ounces per patient, and defendants can argue
that more is medically appropriate. In a February 26
letter to U.S. Attorney Eric Holder, the Harveys’ lawyers say
the amounts sezied by the DEA were consistent with typical medical
use. “Considering one to two ounces are needed to make a
pound of butter,” they write, “it’s easy to
understand how a cookie at night and some tea in
the morning could quickly diminish one’s supply. The point
being, of course, that there would be no cannabis
left over to sell or distribute because these patients needed
all of it and then some to properly treat their
medical conditions,” which include gout, osteoarthritis, chronic
pain from severe back injuries, and wasting syndrome. There is no
evidence that any of the marijuana raised on the Harveys’ property
was exchanged for money.
None of that matters under federal law, as the judge
overseeing the case
confirmed yesterday, ruling that the defendants may not mention
medical use or the state law allowing it during their trial. But
those factors should matter under the policy of
prosecutorial restraint announced by the Obama administration.
Since 2009 the Justice Department has been saying that
“prosecution of individuals with cancer or other serious illnesses
who use marijuana as part of a recommended treatment regimen
consistent with applicable state law, or those caregivers in clear
and unambiguous compliance with existing state law who provide such
individuals with marijuana, is unlikely to be an efficient use of
limited federal resources.” In a
memo issued last August, Deputy Attorney General James
Cole reiterated that policy of forbearance and extended it to
state-licensed suppliers of recreational marijuana, provided their
operations do not implicate “federal enforcement priorities.”
Despite those promises to leave patients alone, Ormsby has
charged each of the “Kettle Falls Five” (as local news outlets
call them) with four felonies: conspiracy to manufacture and
distribute marijuana, manufacture of marijuana, distribution of
marijuana, and possession of a firearm in furtherance of a drug
trafficking crime. Larry Harvey and Rhonda Firestack-Harvey are
also charged with maintaining drug-involved premises (i.e., their
home). Although only 45 marijuana plants were found, the indictment
alleges that the defendants grew 100 or more, based on evidence of
a previous harvest. That triggers a five-year mandatory minimum. So
does the firearm charge, which is based on the Harveys’ possession
of a pistol, a rifle, and a shotgun in an isolated area of
Washington where they hunt for food and where, according to their
lawyers, they have “encountered black bears, cougars and coyotes at
their front door on several occasions.”
Those two mandatory minimums mean the Kettle Falls Five face at
least 10 years in prison. The Huffington Post‘s Matt
Ferner
reports that “their maximum sentences range from up to 40
years to life in federal prison.” In their letter to Holder, the
Harvey family’s lawyers note how bizarre these draconian penalties
seem in the current legal and political context. “Here you
have a single family facing a combined 60 years in mandatory
minimum sentences for medical marijuana in the same state that
plans to allow cannabis distribution on a scale unlike anyone has
seen before,” they write. “In the very city where the Harvey
family is set to stand trial, an ordinance was recently passed to
establish groundbreaking licensing requirements for aspiring
entrepreneurs in the existing medical marijuana field, as well
as those planning to enter the emerging I-502
marketplace.”
The lawyers also note that Ormsby’s approach to medical
marijuana contrasts with that of Jenny Durkan, the U.S. attorney
for the Western District of Washington. “Where
defendants in Eastern Washington are being
systematically deprived of a defense due to the charging decisions
of the USAO,” they say, “similarly
situated individuals in Western Washington have
been given a green light of sorts, with the United States
Attorney for Western Washington yet to charge a
single case where a valid medical marijuana defense
would apply in state court.” All of this
disparate treatment, they say, amounts to “an equal protection
problem of epic proportions.”
The Kettle Falls Five case also contradicts repeated assurances
from President Obama, Holder, and Cole that the Justice Department
is not interested in targeting patients who comply with state law.
“This case is another glaring example of what’s wrong with the
federal policy on cannabis,”
says Kari Boiter of Americans for Safe Access. “If the Justice
Department can continue to aggressively prosecute individual
patients without any consequences from the White House, none of
these DOJ memos are worth the paper they’re printed on.”
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