What-were-they-thinking? Dep’t

I have to agree with William Portanova that it’s “mind-boggling” if, in fact, “hundreds” of lawyers in California have been telling their clients they can safely run massive enterprises growing and selling marijuana as long as their customers pretend it’s for medical use.

A five-year mandatory sentence for open and non-violent pot-dealing is absurd; if I’d been the U.S. Attorney, I would have considered charging the case differently to generate a more reasonable sentence. But if you’re growing 2000 plants at a time, and making money at it, you’re precisely the sort of large-scale, for-profit operator Eric Holder promised to go after. Keeping your books accurately is a fine trait, but it doesn’t make illegal activity legal.

California “medical” pot-dealing is a lucrative business precisely because you can go to prison for it. If Matthew Davies genuinely didn’t know that, he should sue whichever diploma mill gave him his M.B.A. And if his lawyer told him that hiring Chris Lehane to lobby against prosecution was likely to work, he must be practicing law on some other planet.

Adam Nagorney seems to sympathize with the defendant – with lots of heart-string tugging about his young family – as if the existence of federal law were a deep mystery that no mere Californian should be expected to figure out. Having a newborn at home is a good reason not to commit big-money crime; it’s not, alas, a good reason not to have to pay the price.

I’m all for rethinking both the structure of federal sentencing and the notch-on-the-gunbelt ethos that has penetrated too many prosecutors’ offices. But Matthew Davies isn’t in the same category as Aaron Swartz.

Comments

  1. John Beaty says

    I love it that you still think that 2000 plants is a large grow operation. Kind of puts the whole thing in perspective for me.

    • Warren Terra says

      The Times story said he had $8 million in annual revenues. If that’s all from harvesting the 2,000 plants, it’d be hard to say it isn’t a large operation, at least in absolute if perhaps not in relative terms.

        • John Beaty says

          It’s very hard to get more than about 2.5-3 oz of saleable material per plant, unless you are using tight forced grow methods, which doesn’t seem to be the case, as then he would have had many more than 2000 plants (which was my point). 2000 plants would result typically in about 350-500 pounds, which at $400/ounce would be about $2.25-3.2 million. If he sold in bulk for around $4000/pound it would obviously be much less. I would expect him to have 2+ cycles/year so, the numbers don’t seem far off. But these are gross revenue numbers: electricity, fertilizer and tending would take more than 1/2 of that.

          • Kurt says

            CA very good weed goes for $2,500 (white widow) to $3,500 (sour diesel or LA confidential) – this is the typical bogus cop accounting that always accompanies the drug busts. Plus, each of those plants costs about $300-$400 to grow – so even at 1 lb a plant, a very high yield, there is no way to get to 8M with a 2,000 plant a year grow.

      • John Beaty says

        I can tell you that I know of at least 3 grows in SoCal that are about 8-10 times larger and the people who run them, don’t think of themselves as huge. In NorCal, outdoor grows can reach 100,000 plants, spread out over large areas.

  2. nedhoey says

    “… precisely the sort of large-scale, for-profit operator …”

    So, “precisely” where is the line that defines large scale? And “precisely”, how much gross revenue is too much? And besides, gross revenue is not profit. You might go check that code defining non profit status. Shall we discuss the highly variable enforcement the Feds undertake across CA? To what extent does the personal peccadilloes of the local district Federal prosecutor play a roll? They have huge discretion on what to prosecute, who to prosecute and how to charge them. That has resulted in gross disparities in prosecutions in CA. And what about full compliance with state law? Holder committed to not prosecuting those in full compliance. He didn’t say that success, and growing beyond that, um “precise” size would change no prosecution to utter total full blown aggressive prosecution.

    Where is the Federal guidance elaborating on specific thresholds? Aside from this decades old prohibition being racist, xenophobic and arbitrary, what exactly is the urgent necessity to pursue such transparently mean spirited “gotcha” games against obvious nonviolent, non threatening persons? What Federal prosecutors are doing in this case and others (like in Montana) is tyranny masquerading as “justice”.

    How and when are we as a nation going address the culture that now exists in the world of our prosecutors. Overreach and misconduct in order to prevail is poisoning our “justice” system.

    • Sean says

      Federal prosecutors following the law is the opposite of “tyranny.” It may not be “justice,” but the hyperbole is ridiculous.

      • H says

        Prosecutors have way beyond discretion in deciding which laws to enforce and how to do it. One might rightfully wonder why they choose to go after pot distributors doing what is pretty much legal under California law. Or why they chose to go after Aaron Swartz.

        http://www.cliffsnotes.com/study_guide/Prosecutorial-Discretion.topicArticleId-10065,articleId-10015.html
        “Prosecutorial Discretion

        As an elected or appointed official, the prosecutor is the most powerful official in the criminal justice system. Prosecutors exercise unfettered discretion, deciding who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources. In jurisdictions where the death penalty is in force, the prosecutor literally decides who should live and who should die by virtue of the charging decision.

        Criminal justice professors Joseph Senna and Larry Siegel propose the true measure of a prosecutor. In their view, a litmus test for the integrity of a prosecutor is how he or she answers the following question: ‘When you exercise discretion, are you more concerned with fairness, the likelihood of conviction, or political considerations?’”

          • Laertes says

            People who ask to see “the rules” about basic standards of civility and decency are always up to no good.

          • Freeman says

            People who ask to see “the rules” about basic standards of civility and decency are always up to no good.

            izatso? Well, I saw the original comment here, and that’s why I’m asking. I saw nothing uncivil or indecent about it.

            It seems to me that your comment could be considered a breach of the “Attack arguments, not people” clause that Mark invokes above. To me, it’s no better than the one that got nuked. Just sayin’…

          • Laertes says

            Indeed. And your judgment on such matters will be worth something on the blog that you host.

          • Freeman says

            Indeed. And your judgment on such matters will be worth something on the blog that you host.

            Indeed, and the only thing I’m interested in judging is whether or not anything I might intend to say here at any given time crosses some arbitrary line I’m not expecting. That’s why I pointed out that what you wrote, as innocuous as it was, seemed to me to have crossed the same line as the deleted comment, though I would no sooner expect yours to be deleted.

            I’m not questioning Mark’s judgment in deleting the comment, I just want to know where the line is so I don’t waste my time writing something that later gets deleted.

      • nedhoey says

        With a law as blatantly politicized as this one has been for decades, and the with the ardent zeal most prosecutors exhibit, and with power and deference judges give them, sorry but it does reasonably approach tyranny. Have YOU ever been on the receiving end of an aggressive pot prosecution? I have. And it is not hyperbolic to say that this law allows one societal political group (marijuana haters) to persecute another (marijuana producers, users and sellers). What this prosecutor is doing is just plain mean, it isn’t actual justice but it is the use of the power of the state to destroy an individual’s life. They might just as well publicly flog him, but that would leave physical scars, this way they’ll only be psychological which makes seem more like justice. That’s all that will be accomplished. All the users receiving their supply from this guy will find supply elsewhere, CA is flooded with it these days.

      • kant says

        Strictly speaking if passing a law and then enforcing the law is negates the application of the term tyranny, then there has never been an act of tyranny.

        I hate to violate Godwin’s law but Hitler’s rounding up jewis/disabled/gypsies/gay people, Stalin’s purges, and our history of slavery were all legal acts in their respective countries. Yet all are be considered acts of tyranny. An immoral/oppressive action doesn’t become moral or non-oppressive just because a law is passed.

  3. scott g says

    Speaking of ‘highly variable enforcement,’ folks at Humboldt State put together a little Google Earth flyover video to help provide some perspective on questions of scale presented by the rapid growth of large open/ greenhouse marijuana operations in the Emerald Triangle. There are newsworthy busts several times a week here, year-round, but I don’t think there have been even a dozen big takedowns over the last 12 months, certainly not big federal ones. It does not appear to be for want of opportunity.

    Do attend to the note about watching in HD if you’ve the bandwidth.
    http://www.youtube.com/watch?v=GMpu0kbsV7w

  4. says

    A situation like this is a breeding ground for corruption. How much money goes into the pockets of bent cops and prosecutors to turn a blind eye? The integrity of the criminal justice system should be Holder’s prime objective, ahead of enforcing the law as it stands (or in this case wobbles like a jelly).

    • Barry says

      “A situation like this is a breeding ground for corruption. How much money goes into the pockets of bent cops and prosecutors to turn a blind eye? The integrity of the criminal justice system should be Holder’s prime objective, ahead of enforcing the law as it stands (or in this case wobbles like a jelly).”

      You are assuming that bribery (direct or indirect) is not the desired outcome.

      • says

        Surely you just have to think bigger? Cf Mexico, Brazil, Prohibition USA. It would be very interesting if widespread, socially accepted but illegal drug use did not lead to corruption, perhaps racially skewed.

        • Andrew Sabl says

          I think “skewed” is a key element. Prohibition was *ethnically* skewed in a big way: it was perceived as–because it largely was–an attempt by nativist Protestants to outlaw a vice they regarded as characteristic of Catholics and immigrants. (The Women’s Christian Temperance Union under Frances Willard made this explicit via their slogan, iHome Protection,” which as Willard made clear in her speeches referred to the protection of (Real) America from the mores of “Hamburg and Cork,” not just of housewives against drunken abuse) Alphonse Capone wasn’t the only person in Chicago who resented being thus dictated to by Alabama, or Evanston.

          In the current case, I think it’s less clear. Except for Rastafarians, I don’t think users of weed are clearly stereotyped as one ethnicity rather than another. (I understand–though Mark may care to contest this–that African-Americans get *punished* more for using weed. But I don’t think it’s the case–again, I’m willing to be corrected–that members of that group disproportionately want it legal or think that flouting federal law on the subject is justified.) If anything, the sterostype of a stoner is an upper-middle-class white person.

        • Mark Kleiman says

          Yes, it’s fascinating that the Controlled Substances Act has led to only minimal corruption. Well worth a study to determine why. (One theory: overlapping jurisdictions.) But the fact is there.

    • Brett Bellmore says

      Oblivious to it? Unlikely. Happy with it? The law didn’t pass by a large enough margin that they won’t be able to pack a jury with it’s opponents. Expect the feds to scan social media, and kick out of the jury pool anyone who shows signs of approving of the state law.

      Anyway, the usual thing, or so I understand, is to avoid cases ever reaching the jury, and the risk of acquittal, by piling on such an outrageous mountain of charges that a plea bargain looks sensible to accept, after seizing all of the defendant’s assets so that they can’t afford good representation, and then deliberately making the case overly complex to overwhelm any pro-bono representation they may get.

      The Department of Justice well knows how to prevent somebody from getting a fair trial, if they’re really determined to nail them at any cost.

      But they may not even wait post-trial for a punishment phase, they also know how to make the service of a search warrant sufficiently abusive to make a trial essentially redundant. If they’re really determined to quash this, they’ll pick some high profile cases, and go all police state on them, with midnight raids with the risk to life and destruction of property dialed up to 11.

      Doesn’t matter if you expect to be acquitted, if you aren’t certain you’ll survive being arrested.

      On the other side of this, I expect the calculation is that there are going to be too many growers for the DEA to get more than a tiny minority of them. The feds really don’t have enough resources to reach most ‘offenders’ without extensive aid from the states.

      Which does imply the feds will go the police state route, if they really want to do something. To a large extent you can substitute terror for probability of being caught, when you lack resources to make enforcement certain.

      • Ebenezer Scrooge says

        I’ll agree with everything Brett says except the little bit of Econ 101 at the end. (And even there, organized criminals are much more likely to do a cost-benefit analysis than ordinary street offenders, for whom Mark’s “swift and certain” is the only effective deterrent.)

        I’ll even raise the stakes a bit. At the time of the Bill of Rights, juries were the main form of citizen participation in the state. It was expected that their legislatures would be elected by (or controlled by) their betters. However, the 1789-vintage state had few means of coercing citizens save through a jury. And juries were expected to reflect the popular will, on both the facts and the law.

        The professionals–prosecutors and judges–didn’t like this state of affairs. In the early 19th century, judges obtained control over the law. More recently, prosecutors obtained control over the facts, through the mechanisms Brett set forth. And police have long had control of the facts on the ground.

        • Brett Bellmore says

          Everybody does cost-benefit analysis, it’s built into our heads. It’s just that not everybody does it explicitly.

          Using terror tactics disguised as serving a warrant isn’t exactly a new tactic for compensating for a low probability of apprehension. The BATF was doing that in the run up to Waco, and in the war on drugs I have a strong suspicion it’s what’s responsible for the widespread adoption of military tactics and no-knock searches by police.

      • Laertes says

        “Expect the feds to scan social media, and kick out of the jury pool anyone who shows signs of approving of the state law.”

        Is that a thing? I’ve been through voir dire a few times, and I was always “juror number so-and-so” once I left the jury assembly room. Do the attorneys have lists of the jurors real names?

        • Mitch Guthman says

          It would depend on the jurisdiction but, generally, yes or at least I always did. And, again depending on the jurisdiction, but usually more than the just the names—basically everything from your voter registration profile, which is enough in turn to generate a pretty good profile of you as an individual. That’s more common in cases where the defendant has money. Usually the prosecution just checks your criminal history to see if you have a felony conviction or something that might disqualify you as a juror.

  5. Freeman says

    pretend it’s for medical use

    Are you denying that there are legitimate medical uses for cannabis? Are you a medical doctor, Dr. Kleiman?

    But Matthew Davies isn’t in the same category as Aaron Swartz.

    Are you saying providing medicine in ways banned by federal law is morally different than providing information in ways banned by federal law? Your hero-worship of someone breaking federal law to provide information that legally wasn’t his to provide contrasted with your vilification of someone breaking federal law to provide a medically-beneficial plant that legally wasn’t his to provide (federally-speaking) says something about you, especially given the fact that the marijuana provider was following state law and the information provider had no law allowing what he did.

    Or are you just trying to bait “legalizers” with this claptrap so that you can make them look like bad guys (footnote) when they call you out on it? It’s no wonder you get “mistaken” for a full-on prohibitionist drug-warrior after you write something like this post. Keven Sabet would be proud.

    • Freeman says

      Dang. Having a lot of trouble with my links lately. “Make them look like bad guys” should have pointed to the main post instead of a comment. I’m referring to Mark’s footnote.

    • Student says

      I will just go ahead and presume to answer for Dr. Kleiman here… No I do not claim to be a medical doctor nor do I claim to have a perfect understanding of the medical uses of cannabis (no one does, because appropriate studies are blocked by the law all too often) but I do claim that all of the persons involved in the medical marijuana industry in CA (both in distribution and in consumption) are aware of the fact that 90% or more of the consumers do not have a legitimate medical purpose (despite having the recommendation). How do I know this? Well I live and work in California, I am not blind / deaf and was not born with the IQ of a potted plant. Freeman, if your intention is really to argue that one would have to be a doctor to know that the medical cannabis law in CA is widely abused, I have no choice but to call shenanigans on you here. By your logic, arguing that some people seek narcotics without appropriate cause is the same as arguing that narcotics have no medical uses. Poor show, sir.

      Perhaps the gentleman’s intent was truly to provide medicine to the needy, but even if it were true, you would still be a moron to believe it. I think Dr. Kleiman was trying to point out the absurdity of the controlled-substance producer being surprised or angry by an arrest. The only reason his business ever existed in the first place was because of its illegality… Phillip Morris would have forced this guys margins into the negative in weeks otherwise.

      • curious says

        Yes but if medical use is entirely legal, but it is never legal to distribute whether for medical or purely recreational purpose, then where are the justified medical users supposed to obtain the product?

        • Student says

          There are no justified medical users under federal law (or there are like 6, didn’t permits get issued under Nixon to 7 people or something?), so I do not understand your question.

          • curious says

            I mean that it is never really legal to distribute pot in California, whether to medical users or recreational users. So the fact that users might be abusing the medical use exemption should be irrelevant to the prosecution of wholesale distributors since the distributors are not the ones opining on the medical need or abusing the exemption. I’m not sure I understand the distinction that the federal government has made between the justifiability of prosecuting “large-scale” distributors and not consumers.

          • Student says

            It is legal under CA law to distribute to users who have a recommendation if certain requirements are met (the distributor has filled out a caregiver form, etc. etc.). It is never legal to consume or distribute under federal law. You are not alone in failing to understand what exactly the feds think they are doing… I doubt they themselves know at any given time.

        • Student says

          Really? That is fascinating. I would have thought that all of the time I have spent inside such establishments actually talking to patients might have been of some value, but fortunately you are here to correct me. I see you have linked to real academic evidence which totally beats my anecdotal accounts, point Strayan! I see here that the investigators used information from the forms filled out in the “clinicians” office, and a good thing too. I see here that anxiety, insomnia and pain are the most frequently given reasons on the forms… most good. We can accept the data lifted from the forms in the clinicians office as being truth right? Because one can obtain a recommendation without having a stated reason right? Surely we can rely on the honesty of the clinician (AKA Da Kush Doktor, not to be confused with The Kush Doctor or Teh Kush Doctor, his two competitors next door on either side)? He or she would never run a practice which was a simple mill for the generation of such recommendations right? The sidewalks of the Venice Beach area aren’t plastered with posters that read “KUSH DOCTOR GUARANTEED RECOMMENDATION $60 or you don’t pay a DIME :) !!!!

          When I wrote above that I lived in this state, you might have taken it as an opportunity to avoid making a fool of yourself by pretending that the paper you linked has anything at all to do with the percentage of recommendations that are in some way fraudulent. No wonder serious people laugh at us legalizers… almost all of us are like you and almost none of us are like me.

          • strayan says

            Please define what you mean by a ‘fraudulent recommendation’. Are you suggesting that patients are forging their own recommendations?

          • Student says

            No. I am suggesting that many clinicians write the recommendation without truly believing that there is a medical basis for doing so. I am suggesting that the vast majority of “patients” who consult Da Kush Doctor or any similar clinician want the recommendation for purely recreational purposes. I am suggesting these things because A) They are obviously true and B) I actually, personally, know them to be true totally apart from the obviousness.

            It is important that Freeman understand this so as to be better prepared for the world around him. If he thinks it is appropriate to disapprove of Dr. Kleiman for suggesting that the vast majority of CA “medical” users are abusing the law, he wants instruction. I have attempted to provide it here, only to be “countered” by your link, which coincidentally has absolutely nothing to do with whether or not the law is being abused.

          • Student says

            I am a little slow today so I am only now getting around to realizing that I should have asked you this question long ago. Strayan… are you intentionally arguing in bad-faith? You trollin me bro? Or is the above a fair representation of your thoughts on this matter? Please notice that the following two things can absolutely be true at the same time…

            1) It were better that cannabis be legalized fully at the federal level.
            2) It is the case that the vast majority of the consumers of medical MJ in California are abusing the law.

            I believe both are correct but cannot be too sure on item 1. I am sure to a moral certainty of point 2, and anybody who actually lived in this state would agree without hesitation or else immediately betray aforementioned bad faith.

          • strayan says

            Student, I’m going to put your doubts regarding the legitimacy of MMJ users down to the fact that you are probably underestimating the number of people who may get relief from using cannabis. In Australia roughly 40% of the population are living with a disability or long-term health condition – http://goo.gl/gSjPi

            A cursory search reveals that the Californian statistics are likely to be quite similiar – http://www.cdc.gov/ncbddd/disabilityandhealth/images/US_disability2_600pxjpg.jpg

          • Student says

            Strayan,

            Every single person I knew in high school (I was a big pothead in high school) has a medical permission that they lied to obtain from a winking physician. Every. Single. One. All of them have had them for many years. Almost all of them buy supplies at the vending locations and then vend them to people without recommendations (not to make money but just as a normal thing… if you smoke a lot of pot for recreation you end up functioning as a dealer from time to time without intending to and without intending to make money doing it) I actually WAS an mmj patient for a year, and almost EVERY SINGLE PERSON I spoke to in the OVER 10 medical dispensaries I visited had lied to obtain a recommendation from a winking physician. You put it down to whatever you like, the simple truth of the matter is that the vast majority of mmj patients in CA are lying to a winking physician. Has anyone else here actually been an MMJ patient and want to contradict me? Has anyone claiming to be a patient ever said anything different here or anywhere else?

            I am not saying there are not legit patients… I met one or two (out of the thousand or so people I spoke to in such establishments) who were actually running a caregiving errand for someone battling cancer or aids. There was one nice lady who had glaucoma. What is really happening in CA MMJ is that almost all recommendations are fraudulent, and everyone knows it. I am sure a few people here and there actually run a collective, only pay themselves a reasonable salary for services, etc. The vast majority are people who were ALREADY involved in marijuana distribution and have made millions by being able to sell smaller quantities to more people since the market went grey.

            I know you are committed to this cause and I know you want to believe that a good amount of the activity in CA is in compliance with the spirit of the law because it helps with your worldview, BUT IT JUST AIN’T SO. I WAS AN ACTUAL PATIENT. None of the above is to say that it should be illegal or even that it is bad or wrong that people are abusing the law. But the fact is that they ARE abusing the law, any grower or mover or vendor in the CA MMJ game KNOWS that everyone is abusing the law and they are all gleefully cashing in. The thing is, the only reason these guys can make the millions is BECAUSE a real corporation cannot compete with them. If these guys had to compete with organizations for a piece of this unlawful trade, they would be out of business instantly. It isn’t supposed to be the case that the few who dare to break the law and risk prison make millions and no one else can get into the game. I should be able to buy shares in a marijuana growing organization… but only criminals can at this point. I am not saying this dynamic is solved by the feds randomly busting a few people, but FFS lets not pretend the man did not know the score. Everyone in CA knows the score, and he was at the center of the game.

          • Freeman says

            Every single person I knew in high school (I was a big pothead in high school) has a medical permission that they lied to obtain from a winking physician. Every. Single. One. All of them have had them for many years. Almost all of them buy supplies at the vending locations and then vend them to people without recommendations (not to make money but just as a normal thing… if you smoke a lot of pot for recreation you end up functioning as a dealer from time to time without intending to and without intending to make money doing it)

            Huge improvement. Every single person I knew in high school (I was an occasional pothead in high school in the ’70′s) got it from another high-schooler (making us all criminals in the eyes of the law), or from a criminal dealer who also pushed Coke and LSD to high schoolers (who also sold those to other high schoolers). Every. Single. One. This is one consequence (unintended or otherwise) that we should be celebrating instead of arguing over whether or not it justifies the incarceration of participants.

      • Freeman says

        So, just so we’re clear, you’re saying *nobody* can know this:

        nor do I claim to have a perfect understanding of the medical uses of cannabis (no one does, because appropriate studies are blocked by the law all too often)

        but *you* do know this:

        the fact that 90% or more of the consumers do not have a legitimate medical purpose (despite having the recommendation).

        because:

        How do I know this? Well I live and work in California, I am not blind / deaf and was not born with the IQ of a potted plant. Freeman, if your intention is really to argue that one would have to be a doctor to know that the medical cannabis law in CA is widely abused, I have no choice but to call shenanigans on you here.

        I’d like to see your data and collection methods on the factual claim about the 90%, but I’m reasonably certain you have no such data. I suppose I should call shenanigans on your insistence on your own facts. I have little doubt that lots of people are in possession of frivolous MMJ recommendations, nor did I make any claim to the contrary. Diversion happens with all abusable doctor-recommended drugs, but that phenomenon has nothing to do with whether or not a substance has beneficial medical application.

        Any individual who isn’t “blind / deaf and was not born with the IQ of a potted plant” can better understand the medical benefits of cannabis simply by witnessing the improvement it makes in the lives of those who truly benefit from it. There is a lot of scientific research on the subject — the US Government has a patent on medical treatment using cannabis citing no less than 25 scientific documents on the subject. If you live and work in CA, it shouldn’t be hard to find someone with direct experience who can tell you all about it. I live two states away from the nearest MMJ state and I know a local woman in her ’70′s who gets it from a relative in CO. She gets high-CBD low-THC orally administered cannabis product that doesn’t get her high at all, but relieves her symptoms far better and with far less negative side-effects than any treatment her doctor has been able to offer her. Her doctor told her if it works keep doing it. Since you think you know so much about who really benefits from cannabis and who just wants to get high, I’m surprised you don’t think you know anything useful about it’s medicinal properties, but real facts are available to all who seek them.

        By your logic, arguing that some people seek narcotics without appropriate cause is the same as arguing that narcotics have no medical uses

        Nonsense. I asked Mark “Are you denying that there are legitimate medical uses for cannabis? Are you a medical doctor, Dr. Kleiman?” in response to his claim about “massive enterprises growing and selling marijuana as long as their customers pretend it’s for medical use” without even so much as the 90% qualifier you posited. He seems to completely deny any legitimate medical use for marijuana. I want to clarify whether or not that is his position, and what qualifications he bases it on, as these are vital inputs to the Bayesian processing that goes into shaping my own opinions.

        Perhaps the gentleman’s intent was truly to provide medicine to the needy, but even if it were true, you would still be a moron to believe it.

        I reject the idea that believing something is somehow moronic just because someone else finds it unlikely. In my world, the sort of prejudicial thinking that presumes to divine another man’s intent is the hallmark of foolishly arrogant self-deception, which I don’t see as helpful to my decision-making process or my rhetorical effectiveness.

        I think Dr. Kleiman was trying to point out the absurdity of the controlled-substance producer being surprised or angry by an arrest.

        Well you got me there. It’s quite absurd indeed to trust the USDOJ on anything, but especially when they strongly imply that they won’t prosecute providers who are in strict compliance with their state MMJ laws. I’ll have to put down the pipe and re-think that one.

        • Student says

          @Freeman

          RE: “I’d like to see your data and collection methods on the factual claim about the 90%, but I’m reasonably certain you have no such data. I suppose I should call shenanigans on your insistence on your own facts. I have little doubt that lots of people are in possession of frivolous MMJ recommendations, nor did I make any claim to the contrary. Diversion happens with all abusable doctor-recommended drugs, but that phenomenon has nothing to do with whether or not a substance has beneficial medical application.”

          In your original remarks you made it seem as though Dr. Kleiman was arguing that there are no legitimate medical reasons, an argument he has never made. You were prompted to accuse him of this because he DID argue that the vast majority of people who receive cannabis do so by seeking out a clinician who is willing to join with them in a bad-faith creation of a recommendation. I will once again presume to speak for Dr. Kleiman here… There are of course legitimate medical uses AND the laws allowing for them are routinely abused. You are right, I do not have a study to cite to back up my claim that 90% or more of CA’s patients lied in order to get the recommendation. Guess what? Its still true. You don’t have to believe me, and I guess I don’t blame you for not believing me, it is good informational hygiene to ignore people who make numerical claims without a study. Despite it speaking well of your intellect that you do not believe me, what I wrote is still correct and you are still missing information by rejecting what I wrote, which is fine.

          RE: “Since you think you know so much about who really benefits from cannabis and who just wants to get high, I’m surprised you don’t think you know anything useful about it’s medicinal properties, but real facts are available to all who seek them.”

          Now here I lose some respect for you. Neither Kleiman nor I have ever written or said that there were no medical uses, although BOTH of us have written that there ARE. I have spent 100s of hours reviewing the available scientific material on medical uses. My opinion based on my research is that the benefits of cannabis for patients with Glaucoma, Chemotherapy programs, and Migraines have been established scientifically to the point that it would be foolish to doubt it. Cannabis may be useful in many other conditions, it would not at all surprise me, and I DO blame the lack of robust scientific findings on the prohibition regime.

          RE: “I reject the idea that believing something is somehow moronic just because someone else finds it unlikely. In my world, the sort of prejudicial thinking that presumes to divine another man’s intent is the hallmark of foolishly arrogant self-deception, which I don’t see as helpful to my decision-making process or my rhetorical effectiveness.”

          I stand by my argument. It is best to assume that people behave in a self-motivated fashion until proven otherwise. If I were to ask you if a heroin dealer did it for the money or out of the desire to be of service to people who had chronic pain but could not easily access medical services, you would respond that he almost certainly was doing it for the money (at least, I should hope you would). If you are really AS willing to attribute vending behavior to altruism as to self-interest, good for you… that is very cute.

          RE: “Well you got me there. It’s quite absurd indeed to trust the USDOJ on anything, but especially when they strongly imply that they won’t prosecute providers who are in strict compliance with their state MMJ laws. I’ll have to put down the pipe and re-think that one.”

          Yes the feds suck at drug policy and have so far not been perfect on medi mari enforcement. Big surprise there.

          • Freeman says

            In your original remarks you made it seem as though Dr. Kleiman was arguing that there are no legitimate medical reasons, an argument he has never made. You were prompted to accuse him of this because he DID argue that the vast majority of people who receive cannabis do so by seeking out a clinician who is willing to join with them in a bad-faith creation of a recommendation. I will once again presume to speak for Dr. Kleiman here…

            You can speak for Dr. Kleiman as much as he tolerates it for all I care, but I’ll thank you to stop trying to speak for me. I didn’t “make it seem as though Dr. Kleiman was arguing that there are no legitimate medical reasons”, nor did “I accuse him of this”. I asked the question for the reasons I’ve already explained. If you will point out to me where Dr. Kleiman’s post left any room whatsoever for legitimate medical use I’ll concede your point.

            RE: “Since you think you know so much about who really benefits from cannabis and who just wants to get high, I’m surprised you don’t think you know anything useful about it’s medicinal properties, but real facts are available to all who seek them.”

            Now here I lose some respect for you. Neither Kleiman nor I have ever written or said that there were no medical uses

            I suppose it’s a good thing my self-esteem isn’t dependent upon the respect of anonymous commenters. ;) I haven’t argued that either you or Kleiman has said that. But didn’t you just say:

            I will just go ahead and presume to answer for Dr. Kleiman here… No I do not claim to be a medical doctor nor do I claim to have a perfect understanding of the medical uses of cannabis (no one does, because appropriate studies are blocked by the law all too often)

            I stand by my perception that the implication of that statement is that “you don’t think you know anything useful about it’s medicinal properties”.

            that is very cute

            I think you’re cute too. I gotta say, I’m lovin’ this new civility around here!

          • Student says

            I have said I will presume to speak for him only to repeat (paraphrased only slightly if ever) things which I have either heard him say on video or recording, heard him say in person, or found written in a book of his. These things are…

            1) There are medical uses for marijuana but much less research than there should be because of prohibition and obstruction of research by government actors.
            2) The existing medical marijuana laws are often abused (where abused means the exchange of recommendations without proper medical consideration or without proper medical cause, based on deception by the patient and / or a wink by the clinician)

            If I have erred in any of the above I do apologize, but I believe strongly that I have not and that it really should not be very hard for me to remember those things, having… you know… heard or read both of them several times.

            On wrongheaded federal obstruction of marijuana research http://www.samefacts.com/2010/01/drug-policy/science-and-politics-in-medical-marijuana/
            Obviously in support of use as an anti-emetic http://jco.ascopubs.org/content/9/7/1314.short

            I will just leave those two because the actual number of times he has said that cannabis has obvious medical utility is mind-boggling. You could have figured out if he was a medical doctor simply by googling his name, he is a researcher you know. Instead, you wrote this…

            “pretend it’s for medical use

            Are you denying that there are legitimate medical uses for cannabis? Are you a medical doctor, Dr. Kleiman?”

            The implication of what he wrote is that a tremendous amount of the volume of medical marijuana consumption is not appropriate as a medical treatment, it is not that it has no medical uses. See a helpful fellow clearing that up on this very page “Diversion happens with all abusable doctor-recommended drugs, but that phenomenon has nothing to do with whether or not a substance has beneficial medical application.” I agree with the you of earlier today; to suggest that MMJ laws are abused is wholly different than suggesting that there are no legitimate medical uses. Asking if he was an MD rather than simply looking it up was for rhetorical effect, and it would land better if it were aimed better (if I am wrong and you really thought that asking in the comments section was the best way to figure out his CV, I apologize… but seriously). If on the other hand it was for obvious rhetorical effect and your tone was confrontational coming in, it were poor form to act innocent now.

            If most people were asked if the following sentence means I have never read anything about the medical uses of cannabis, I think you would be surprised… “No I do not claim to be a medical doctor nor do I claim to have a perfect understanding of the medical uses of cannabis (no one does, because appropriate studies are blocked by the law all too often).” Clearly the possibility for imperfect knowledge remains… I assume your knowledge about the medical uses of cannabis would be enhanced by decades of peer-reviewed research with solid funding? Mine would. I will conclude by saying I hope that you were not being sarcastic about the new civility.

          • Freeman says

            Sarcastic? Me? Never! No Student, I really do think you’re adorable! ;) And I’ve always advocated for civil discourse.

            Please. Go back and re-read our conversation and the OP. Try to see where you’ve conflated my remarks to imply accusatory statements I never made, and where you’ve embellished Mark’s statements to imply that they really do kinda almost say what you think I said they don’t. Then come back and answer this:

            Wouldn’t you agree that blanket statements like “their customers pretend it’s for medical use” and the conflation of state-legal MMJ provision with illegal street-dealing like “California “medical” pot-dealing is a lucrative business precisely because you can go to prison for it”, or a statement that mocks the extreme misfortune of a young family that naively trusted the USDOJ to keep it’s word with something like “Adam Nagorney seems to sympathize with the defendant – with lots of heart-string tugging about his young family – as if the existence of federal law were a deep mystery that no mere Californian should be expected to figure out” are likely “for obvious rhetorical effect” and “confrontational”? Is there a rational reason to condemn that on one hand and defend it on the other?

          • strayan says

            Student

            There is plenty of research documenting the therapuetic value of cannabis and cannabinoids.

            Two major reviews of the therapeutic value of cannabinoids (randomized,(double) blinded, and placebo-controlled trials) have been published:

            1. Ben Amar, M. (2006). Cannabinoids in medicine: A review of their therapeutic potential. Journal of Ethnopharmacology, 105(1), 1-25.

            2. Hazekamp, A., & Grotenhermen, F. (2010). Review on clinical studies with cannabis and cannabinoids 2005-2009. Cannabinoids, 5, 1-21.

            More research needs certainly needs to be done, but doesn’t it always?

            I’m eagerly awaiting more results re: the anti-psychotic potential of cannabidiol: http://www.ingentaconnect.com/content/ben/cpd/2012/00000018/00000032/art00025

            Preliminary studies appear quite positive: http://www.nature.com/tp/journal/v2/n3/abs/tp201215a.html

          • Student says

            @Freeman

            Would Dr. Kleiman’s remarks make sense to you and provoke less anger if you assumed from the beginning that the vast majority of the CA MMJ game is based on fraudulent recommendations? I am not saying you agree that it is, I am posing it to you as a hypothetical. Lets say 95% of the MMJ users in CA obtained their recommendations inappropriately AND that everyone knows it, especially the people who are growing it for profit (remember the feds always said they would go after for-profit operations, always). IF YOU ASSUMED THESE THINGS as a starting position, would Dr. Kleiman’s remarks or mine make sense to you? Or would you still disagree?

      • Kurt says

        Are you under the impression that no doctor ever writes a oxycontin prescription for someone who is faking an injury? I don’t think we need to be in the business of telling other people what to do….

    • Student says

      Disclaimer: I am in favor of full federal legalization of cannabis. I refuse to allow my support of legalization turn me into a fountain of counter-factual nonsense. I refuse to allow my support of legalization to cause me to be angry at Dr. Kleiman for not also supporting full legalization. I refuse to allow my support of legalization to compel me as if by necromancy to read RBC articles and pull the most negative and absurd possible inferences simply to attack the blogger now that we disagree on something (if you had spent 5 seconds reading or paying attention to Dr. Kleiman’s work you would know that he is fairly certain there are some demonstrable medical uses).

  6. says

    You’re right, Swartz and Davies both broke stupid laws that shouldn’t exist, but Swartz wasn’t arguably in compliance with state law, or intentionally vague enforcement guidelines.

    I would certainly agree with you that no lawyer worth his J.D. would tell anyone in California it’s fine to operate a medical marijuana dispensary, or s/he shouldn’t worry about the feds. But as it relates to federal law, this administration has gone out of its way to make federal law a “deep mystery.” You make it sound like no reasonable person could expect to get away with running a dispensary that makes this much money and not go to prison, when in fact dozens already have and continue to every day. Steve D’Angelo makes eight times this much money running the biggest dispensary in the world in Oakland, and he does it on the Discovery Channel. Yet somehow the feds haven’t initiated criminal proceedings against him. Hundreds more are operating similar businesses in Colorado.

    Davies is facing prison time because the feds have made a mockery of the rule of law in California. It’s no longer clear what is allowed and what isn’t.

    • Bruce Ross says

      The unfortunate irony is that in many cases the feds have gone after operators who are taking every effort to comply with state and local laws — and even federal laws related to taxes and such. To make an example of them? Because all the paperwork makes the cases easier? Meanwhile, the real cowboys go about their business.

      • Mitch Guthman says

        Not really. There are a huge number of people violating the federal law against distributing marijuana, vastly more than could ever be prosecuted given the limited resources of the DOJ or the local USA. Consequently, there will always be a degree of randomness about marijuana prosecutions but that doesn’t mean that because you can’t prosecute everybody then you can’t prosecute anybody.

        There are certain very specific requirements for abuse of discretion to be deployed as a defense in a criminal prosecution and none of them seem to exist here. My own feeling is that the USA undertook this prosecution because it was likely to be very easy to get a conviction since the defendant was supposedly following California law which, if my memory is correct, has a lot of record-keeping and transparency requirements which themselves seem to mandate the commission of federal money laundering and bank crimes. This was just way easier than going after the Mexican Mafia or some other prison gang or the Mexican cartels.

      • Kenneth Almquist says

        According to the story: “The federal authorities said they stumbled across the operation after two men were spotted apparently breaking into Mr. Davies’s 30,000-square-foot Stockton warehouse. The police said they smelled marijuana plants. Federal agents conducted a raid and confiscated 1,962 plants and 200 pounds of marijuana.”

        My take is that the federal government is not specifically targeting marijuana growers who comply with state law. Davies wasn’t caught because of something he did to comply with state (or federal) law; he was caught because police stumbled across a warehouse where he was growing marijuana.

        People break the law every day without being prosecuted for it. I’ve seen estimates that only 20% of murderers are convicted. That does not mean that whether murder is illegal is a “deep mystery.” As Mark Kleiman said, Eric Holder stated that he would prosecute folks like Davies. Davies just had the misfortune of getting caught.

  7. Josh says

    Well gosh, as a prosecutor in the Emerald Triangle, I had no idea that I was either accepting bribes or hunting witches.

    Snark aside, I agree with most of you that in liberal enclaves such as my county, pot laws do not reflect political will. Perhaps that is one reason that my office does not generally seek prison sentences on cultivation/transportation cases. Of course, it is a mistake to believe that the political will of the Emerald Triangle, Berkeley, or West LA is the political will of Tulare County, Arizona, or Alabama. And the problem with living in a democracy is that others’ opinions can create criminal liability. The solution, as with copyright law, is not to yell at the prosecutor for doing his or her job, but to change the law.

    Of course, the obvious short term solution would have been to leave drug laws to the states. But of course, the problem with promoting states’ rights is that other states may then create laws that we don’t like on things like birth control, and in any event, the liberal justices of the US Supreme Court sacrificed this potential solution in order to preserve federal civil rights laws a few years back. (Raich v. Gonzales (2005) 545 U.S. 1.)

    • Mitch Guthman says

      Nevertheless, and speaking as an ex-prosecutor myself, this seems like an appalling allocation of some fairly substantial resources. I appreciate what Mark has been saying about stupidly, openly flouting federal law (and indeed I made many such points in previous discussions of the new state laws Colorado and Washington) but I don’t really understand why this case was accepted and resources spent on prosecuting these people when it is well known that there are many violent prison gangs and large scale drug traffickers operating in that district—not to mention a very large number of white collar cases which are starved of resources.

      There is an obvious solution which is for somebody in the administration or Congress to have the balls to suggest some kind of absolute immunity shield for people who are in good faith compliance with state law (and that would extend, for example, to a safe harbor for banks accepting state licensed marijuana operators as customers).

      In the meantime, here’s some free legal advise: Complying with the state law requirements for growing or sell marijuana absolutely positively does not insulate anybody from federal criminal liability. It just paints a target on your back and guarantees that if a DEA agent or an USA decides to target you for any reason (good, bad or evil), you will have careful assembled the instruments of your downfall and handed them to you nemesis on a silver platter. (I have a more detailed that I left in a comment here awhile back. My Google fu is too weak to find it at the moment but if you’re thinking about going into the marijuana I think it pretty good food for thought)

      • Josh says

        Absolutely right. These are points that we agree on.

        And as long as we are talking about questionable allocations of federal resources, we should mention the government’s prosecutions Barry Bonds and Roger Clemens for unethically damaging their own bodies in order to advance their careers, and the government’s failure to prosecute Wall Street executives for unethically damaging the rest of us in order to advance their careers.

      • Josh says

        Absolutely right. And there are a lot of ways that I think that the U.S. DOJ has mismanaged its resources: See e.g. the prosecutions of Bonds and Clemens; the failure to prosecute Wall Street execs.

  8. GeoffBr says

    “I’m all for rethinking both the structure of federal sentencing and the notch-on-the-gunbelt ethos that has penetrated too many prosecutors’ offices. But Matthew Davies isn’t in the same category as Aaron Swartz.”

    Can you differentiate Aaron Swartz and Matthew Davies, except insofar as you have more nuanced views as to the desirability of marijuana legalization? If Orin Kerr’s summary of the facts is correct, Swartz repeatedly attempted to evade detection by MIT and JSTOR while downloading copyrighted material, continued to do so after it became clear that both wished him to stop, and eventually broke into MIT facilities in order to secretly finalize his downlaods.

    I’m sympathetic to both primarily because I think the laws they were accused of violating aren’t particularly intelligent ones (at least as applied in their situations), and because I believe prosecutorial discretion should account for this. But both Swartz and Davies committed actions that were obviously illegal under federal law and which they clearly knew about prior to the act. I’m not sure how you let one off the hook but not the other.

    • Ebenezer Scrooge says

      I’ll try.

      It’s not a question of law. Both Swartz and Davies violated federal law. In my opinion, the law that Swartz violated is unconstitutional, but that is not the opinion of our plutocratic Supreme Court and they–not I–have jurisdiction. I only have jurisdiction if I’m on the appropriate jury.

      The distinction is the meaning of “let off the hook.” There was no sanction–short of felony conviction–that is appropriate for Davies. A deferred prosecution agreement was tailor-made for first-time acts of morally serious civil disobedience such as Swartz’s. (I also have some Constitutional reservations about deferred prosecution agreements, but a citizen could never serve as juror on that kind of case.) Swartz was willing to accept it; the prosecutor was not. That, I believe, was an abuse of prosecutorial discretion.

      • Freeman says

        I’m interested in your case for the constitutionality of drug prohibition. Why did alcohol prohibition require a Constitutional amendment to enact and another to repeal, but subsequent drug prohibitions have not?

        I’m also interested in your case for the unconstitutionality of Copyright law. Isn’t copyright addressed in the Constitution?

        • Ebenezer Scrooge says

          Sure.

          In 1919 (or thereabouts), our understanding of the Commerce Clause was fairly limited, thus requiring a Constitutional amendment for alcohol prohibition. (In a move that may now be more familiar, Congress used a tax to regulate marijuana.) But since Wickard v. Fillburn, as reaffirmed by Raich and the Obamacare case, the Supremes have changed their minds. It’s all wide open. In this respect, I agree with the Supreme Court.

          I do have some reservations about some of the criminal penalties attending drug regulation. It doesn’t quite rise to a feeling of Constitutionality, but I think that there are severe Constitutional improprieties with most federal offenses that are local conduct. (There are obvious exceptions to this: murder on federal property is a perfectly appropriate federal crime IMO.) Wholesale commerce does not bother me in this respect, although I think that the drug laws are substantively moronic. But the Constitution is no guarantor of sensible legislation: “unfair” does not imply “unconstitutional.”

          Copyright is addressed in the Constitution. Like the Second Amendment, the copyright clause has a preamble, which I think is necessary in interpreting the scope of the substantive text. It also has limiting language (unlike the Second Amendment.) Both are rare in the Constitution, although there is limiting language in the Bill of Rights. I cite: “To promote the Progress of Science [i.e., literature] and useful Arts [i.e., technology], by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. IP protection for public-source materials does not promote the Progress of Science; indeed, it hinders it. And the anti-circumvention provisions of law operate for an unlimited time.

      • Brett Bellmore says

        “In my opinion, the law that Swartz violated is unconstitutional”

        I have some sympathy for Swartz’ cause, but by all accounts he violated quite a few laws towards the end, some of them of utterly clear constitutionality.

        • Ebenezer Scrooge says

          You might be right. I’m only thinking of the anti-circumvention law, or perhaps data-theft laws as applied to public domain material.

          This reminds me. I’ve heard that a favorite prosecutor’s game is opening up the Gospels to a random page and figuring out how many violations of criminal law they could pin on what Jesus did at that moment. My moral judgment of this game depends completely on the spirit with which they approach it: facing up to their inner Pilate with humility, or glorying in their power.

          • Freeman says

            Interesting. For one thing, Jesus manufactured drugs, and from the account, it was the good stuff. But he also warned against abuse.

            His knowledge of drug abuse did not lead him to call for the drug’s prohibition, or to tell his followers not to imbibe. To the contrary, he was willing to go to miraculous lengths to provide a drug for an appropriate “recreational purpose” despite his knowledge of it’s common abuse. He argued only against it’s abuse, knowing better than to blame the drug. If only our government and policy analysts were as wise.

          • Ebenezer Scrooge says

            Freeman,
            That’s the one place where the Bible–both Old and New Testament–is completely self-consistent. Wine is good; abuse of wine (e.g., Noah) is not.

    • Warren Terra says

      Also, assuming his grow-op wasn’t a fire hazard and that he was paying his workers properly (payroll taxes, etcetera), Davies really had no victims.

      Swartz on the other hand, for all he was idealistic and thought he was doing Right, did have victims, both direct and indirect: the logical consequence of his actions would be to ensure that copyright holders would further resist the efforts of philanthropic organizations like JSTOR to make their articles cheaply available to Americans and freely available in the third world, lest activists like Swartz reach through JSTOR to deprive the rights-holders of all control over their property. Further, Swartz’s efforts threatened to deprive JSTOR of the revenues necessary to carry on their mission. You can justly criticize our intellectual property laws, and you can rightly excoriate the for-profit bandits of academic publishing like McMillan, Wiley, and Elsevier, and even those not-for-profit institutions like the AAAS that demonstrate little interest in public service. But Swartz chose in his crusade to attack MIT and JSTOR, both of whom were doing the best they could to alleviate problems with the current situation, rather than those abusing and intensifying the problems. More proximally, his trespassing, burglary, and resource theft on the MIT campus should be obvious. Swartz’s transgressions don’t make his proposed imprisonment a just outcome, and nothing could make his tragic death anything other than a terrible wrong – but I am getting mightily tired of the canonizing of Aaron Swartz and of the whitewashing of his actions.

  9. Servetus says

    Justice systems aren’t supposed to be arbitrary and capricious, which describes exactly how a few U.S. Attorneys are treating marijuana dispensaries. It’s the arbitrariness of the judicial system that tempts people to ignore it, to take the risk of setting up a business that makes them vulnerable, which is why arbitrariness in law is highly discouraged.

    The feds say they fear the big dispensaries, but they’re vague as to reasons. Large dispensaries using their proceeds to clarify or bring change to the drug laws have been targeted in Oakland and elsewhere. Perhaps the federal aim is to limit free speech, or free association. Certainly the equal protection of the laws clause is being ignored, or in some way thwarted.

    Believing the state can do no wrong is a myth believed by children. The wrongs of the state can’t just be panned off onto the victims it creates, claiming it’s their fault, they should’ve known better, and so forth. Americans are made stupid by design, as well as fiscally desperate. It’s too easy for their government to turn them into victims, to exploit them. It doesn’t need to happen, and making it happen is essentially an act of war that usually results in the abolition of laws and governments.

    • Mitch Guthman says

      It’s neither arbitrary nor capricious. It simply the luck of the draw. On any given day, twenty people may zoom past the motorcycle cop hiding behind the billboard. He can’t possibly ticket all of them but he tickets as many as he can. It’s simply the luck of the draw which of these twenty speeders gets a ticket.

      The other point which you and many others are simply choosing to ignore is that everybody involved knows that federal law trumps state law. A state has no ability to immunize anybody from federal prosecution. Your complaints about the way the federal government goes about it business may have validity. I’m strongly of the opinion that states should be given some kind of safe harbor to experiments with legalization and there were many alternatives the available to the USA to duck this prosecution, however blatant this guy may have been.

      But, in the final analysis, all of these people knew the risks and they knew that if anybody in the criminal justice system was interested in destroying their lives and the lives of their families, there was nothing they could do about it. I believe they all made poor choices, just as I believe that the Congresspersons who don’t propose a safe harbor are cowards.

      • Servetus says

        I don’t believe the raids are random. And I’ve heard the duck hunters’ analogy from traffic cops regarding who gets ticketed and who doesn’t. But there’s entrapment to consider as well, in the form of speed traps that burden people in rural areas with traffic tickets that ultimately do little more than drive up their auto insurance costs. Speed traps are supposed to be illegal, at least according to some court decisions I’ve read, but it happens anyway.

        There is a right way to do things involving drug laws enforcement or traffic laws, and then there’s the way the federal government does it. At the moment, we have a dysfunctional congress that might otherwise have chosen to correct some of the incompatibilities between state and federal law in regard to marijuana experiments, but they didn’t, and they don’t appear motivated to do anything positive in the near future.

        The consequence has been to punish risk takers, the very type of people who made this country great. ‘Risk taking’ has been the unofficial motto of every person who ever immigrated into the United States. Some behaviorists even theorized that a genetic predisposition for risk taking exists to the great benefit of American population, because of the people who risked coming here, as well as those who stayed to tame the wild West, or seek gold in California.

        If I were to choose between the risk takers and prohibition, I would choose the risk takers every time.

  10. darkcycle says

    Seems to me the prosecution of this individual is arbitrary and capricious. The fight the federal Government should be pursuing (but isn’t) is with the state of California. If this law is truly in conflict with Federal laws, then why is Mr. Davies being sent away for a long period of time, yet there is no concurrent effort underway to overturn California’s (or an other medical State’s) law? This is allowed under State law, and after Mr. Davies is sentenced it will STILL be legal under California law. The prosecution and incarceration of these individuals is not going to change California’s law in any particular.
    The spotty, inconsistent prosecutions assure that there is a low enough risk to tempt ever more people in to fill these niches. As long as it remains legal under California law, and the odds of being targeted by the Feds so low, people will always be willing to take the risk and step up. And there will always be people who (right or wrong) will look at the enforcement, and look at State law and believe they have “read the tea leaves”. Everybody but you, M.K., seems to have missed it when he gave “precise’ guidelines for who to prosecute. Some people will be convinced that they have the method or system that will keep them safe from Uncle’s depredations, after all, Holder’s J.D. DID suggest (albeit obliquely) there WAS…suggesting they wouldn’t go after those compliant with State laws. So, the current limbo assures that ever more people will be incarcerated, and more resources will be committed, and more lives will be destroyed (yes, that IS what is happening to Mr. Davies), to no effect whatsoever.
    Sounds “Arbitrary and Capricious” to me.

    • matt w says

      I’m not sure I see the argument about the state here. There is something prohibited by Federal law which is not prohibited by California law. But there isn’t a principle that conduct that is illegal under Federal law must also be made illegal by state law, is there?

      As I understand it, this isn’t like the proposed bill in New Hampshire that would have made it a felony for any federal official to enforce a federal law, which clearly would’ve proposed a state conflict with federal law (and frankly, I think the people who voted for it were arguably in open rebellion against the federal government). It’s just a situation where the laws of a state are not exactly the same as federal law, which is a ubiquitous situation. So I don’t see where the Federal government has a case for pursuing a fight with the state of California.

  11. Dante says

    OK, no names then:

    Drug warriors make their living by prosecuting the war on drugs. If the war on drugs ended, the drug warriors would be out of a job. They would also lose their importance in human society, certainly within the Law Enforcement society. They would be harmed (ending their employment) by doing a good thing for humanity (ending the drug war).

    Given that, what is the probability that a drug warrior would actually seek to harm himself by actually doing anything in any way that would derail his own gravy train?

    Zero.

    Protect & Serve (Themselves!)

    It’s the Drug Warrior Motto.

    • Mitch Guthman says

      I don’t think that’s even remotely true. If you think about it, there’s more than enough crime to go around even if all scheduled drugs were legalized and free available over the counter. Nobody would be out of a job. And I’ve never encountered anyone in the criminal justice system who viewed the “war on drugs” in the way you suggest and the only remotely analogous historical example proves you wrong. The Bureau of Prohibition didn’t go out of business and its agents didn’t lose their jobs when prohibition ended. They all simply were transferred to the Department of Justice.

      • Keith Humphreys says

        What Mitch says is completely correct, all the police in the country could be fully occupied just be arresting people for alcohol-related crimes (The number arrested for DUI is not even 5% of the portion of the population who self-reports drink driving).

        • NCG says

          I don’t agree with Dante technically, but I do agree that there seems to be a large and quite powerful lobby in favor of the incarceration complex (or whatever it’s called). It’s not an accident we put so many people in jail — lots and lots of people live off it. And our legislatures and judiciary are heavily biased towards the prosecution side. I don’t see why anyone should get to be a criminal court judge if they haven’t worked both sides, but that’s not a rule, is it? And that’s no accident either.

  12. Richie Rich says

    Josh: The Raich decision was a travesty..to assume that pot grown and consumed in California might theoretically have some impact on the national cannabis market, and relying on an old and vague case having to do with wheat, proves that the justice’s ( none are really liberal ) were determined to ignore states rights in order to promote the drug war mentality. The 4th Amendment is already a dead letter due to drug war exceptions. No rational person would assume that prosecutors are getting bribed routinely, but the power they hold is frightening. Prosecutors enjoy absolute immunity and can abuse the process wantonly with the knowledge that at worst they lose a case now and then. How many prosecutors have been sanctioned in a serious manner this or the last century? Virtually none.

    When the majority of the people support the removal of severe penalties for cannabis” offenses”, yet the Fed’s ignore this totally and blatantly and shamelessly include pot in schedule 1 and spend millions of dollars of tax money to persecute state law abiding people, it has gone too far. We know that science, history and common sense prove that cannabis should be available to adults without penalty, and that drug warriors cannot produce a shred of evidence to the contrary. Holland and Portugal prove that when regulation is used instead of throwing citizens in jail for pot use , but the good old USA stands stubbornly like a petulant bully to deny the facts and insist that other nations follow our nauseating example of ” justice” despite the truth.

    There is no middle ground: keeping cannabis illegal for adult use is insane, unless you are a profiteer, which includes the prosecutors and cops and private prison cabal, et al..and it seems to me that most prosecutors have no conscience or shame about caging fellow citizens for disobeying laws that should not be on the books to begin with…when you look at how pot came to be illegal, with racist and money grubbing politicians obeying corporate masters and smarmy fed’s like Anslinger heading the charade, it is obvious that no morally sopund appraisal would allow for penalizing people for cannabis use or marketing. I am ashamed of my nation for being so corrupt and immoral in this regard, and prosecutors are just a part of the horrific system on injustice that is in place.

    Think about this: In the future, will our citizens wonder how and why we allowed such a travesty to exist for so long, or will they look back and see a logical and worthwhile use of the trillions of dollars soend and lives ruined by such hated and unfair laws? If you know that the future will hold contempt for what you are doing now, defending it is disgusting and the fact that a law is on the books does not mean it is right.

    • Josh says

      One’s opinion of Raich likely depends on the relative importance that one gives to recreational drug use vis-a-vis civil rights, inasmuch as Raich can easily be read as a decision that had less to do with the Controlled Substances Act than it did with Civil Rights-era legislation. These laws were all passed (and upheld) under the Commerce Clause. (See e.g. Heart of Atlanta Hotel v. United States (1964) 371 U.S. 241.) However, the Commerce Clause is completely silent on the question of civil rights.

      This fact was not lost on the conservative majority of the 90s-era Rehnquist Court, which duly struck down two laws passed under the Commerce Clause that had very little (if anything) to do with interstate commerce. (See United States v. Lopez (1995) 514 U.S. 549 (striking down a federal law prohibiting firearms on school property) and United States v. Morrison (2000)529 U.S. 598 (striking down a federal law providing a civil remedy to victims of gender-based violence).) Shockingly, these decisions were both 5-4, with Stevens, Souter, Ginsburg, and Breyer dissenting. And these decisions foreshadowed the conservative majority’s willingness to roll back the scope of the Commerce Clause. What to do?

      Well, one of two things needed to happen. First, Congress could have redrafted these laws using the Fourteenth Amendment, and then hoped that the Supreme Court would have reconsidered its position from the Civil Rights Cases [(1883) 109 U.S. 3], which basically gutted the Fourteenth Amendment. Not likely. Or, the liberal wing of the Court could find a Commerce Clause issue that would bait the conservative members of the Court into upholding a broader reading of the Commerce Clause. What legislation was passed under the Commerce Clause that outlaws a set of behaviors that conservatives tend to dislike? If you guessed the Controlled Susbtances Act, you’re absolutely correct. The Ninth Circuit took up a medical marijuana case from Berkeley, and found that Lopez and Morrison dictated a finding that the Commerce Clause was unconstitutional. Scalia and Kennedy joined the four liberals, the Commerce Clause was (mostly) safe, and the rest is history.

    • Josh says

      And as a corollary, though I personally favor some sort of pot legalization, I don’t think that the fact that it is illegal quite rises to the level of travesty. A wrongful murder conviction is a travesty. State-sanctioned torture is a travesty. A school shooting is a travesty. Limiting the way that someone can legally get high doesn’t quite get there in my book. But that’s just me.

  13. Laertes says

    Have you guys considered non-nested comments? Given the moderately low volume and generally high quality of the comments here, it seems like it might suit this community really well.

  14. says

    Deleted for failure to conform with RBC civility standards.
    Comments must not insult posters or other commenters.
    You may re-post – once – in coformity with the (long-posted) rules, or find another place to comment.

    • Mitch Guthman says

      I think you’re missing the point. Mark doesn’t think anybody should go to jail behind this case or at least not for anything remotely like five years. That’s my feeling, too.

      It’s also true that if I were the USA in that district, I would not have brought this prosecution at all and there were a number of alternatives for getting the case out of the system which don’t seem to have been considered. I suspect that once the decision to charge a crime at all was made, the natural tendency of federal prosecutors to charge everything imaginable in the hopes of forcing pleas took over and Mr. Davies and his employees were doomed. This is very much the dynamic in both of the tragic cases we’ve been discussing. Either you submit and take the deal or you roll the dice on what is basically a life sentence.

      In many ways you and some of the other commentators have been talking about your personal feelings about whether marijuana should be legalized or whether you think a different approach to drug enforcement would be more just. Clearly, most people would agree with you. But the tend towards state “legalization” has really set people like Mr. Davies and his employees up for a tragic fall—the very things you point to as evidence of his good faith compliance with California law were the very things that made it seem to the feds that he was thumbing his nose at them.

      I don’t doubt that Davies is a good man, who loves his family and is doing what he thinks is right. Nevertheless, he must have known that he was playing Russian roulette with a federal prosecution that he couldn’t possibly survive. That the hammer had landed on an empty chamber so many times didn’t really mean that it always would do so. This tragic result was inevitable.

      • says

        I certainly did not miss the point and don’t agree that Mark is against jail for weed. He basically says that in his opinion if you don’t know you are taking a risk, you should suffer the consequences – like go to jail. The point I see is that many uninformed people are talking about laws and revised legislation and working with what is in place, etc, etc, etc. How about the fact that the Drug War is a complete and total failure and this type of thinking is an extension of those years of beainwashing. There is only one point to this discussion thread – nobody goes to jail for weed. Get the point? And by the way, if he operated in “good faith compliance with California law”, that seems to be what our Constitution clearly dictates is the right thing to do. Standing up and saying a legal change to the Constitution is necessary is right also. Abiding by the laws of the state you live in is right. Putting people in jail for weed is wrong. Change must be made in the law and legisaltion , not in how each of us exercises our Constitutional and moral freedoms. If I can offer a quote from Henry David Thoreau…”Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward.”

    • says

      Sorry for the tone or failure to conform to civility standards. Not my intent. Here is a revised post:
      Mark Kleiman and William Portanova may be dangerously wrong on several levels.
      1. NO reputable lawyer anywhere in California is telling their clients “they can safely run massive enterprises growing and selling marijuana as long as their customers pretend it’s for medical use”. This type of comment can perpetuate misinformation spread by some who have limited concept of the laws of California.
      2. “if you’re growing 2000 plants at a time, and making money at it, you’re precisely the sort of large-scale, for-profit operator Eric Holder promised to go after. Keeping your books accurately is a fine trait, but it doesn’t make illegal activity legal”. The way Matthew Davies operated, California law allows for the amount of plants and his books reflect quite simply that “collective overhead and costs associated with members” was properly accounted for , by California Law. This was NOT the large scale, for profit operation Holder says he is going after.
      3. “California “medical” pot-dealing is a lucrative business precisely because you can go to prison for it.” Not a helpful statement. Serves no purpose other than to antagonize by relating medical marijuana to pot dealing. If one doesn’t understand medical marijuana or the related Californa laws, they should be cautious in how they comment. I don’t believe there is any value in displaying contempt for what Davies knew or should have known.
      4. Again, more sarcasm at Davies and his families intelligence is not really productive.
      5. Comparisons to others and supporting potential Federal abuse can be dusruptive and as a lesson for us all, we might be more informed by actually reading the US Consitution. It helps us all understand our freedoms, individual rights and State’s rights. Learning from what has happened in Colorado and Washington and learning from the major polls helps us see that a majority of US citizens support medical marijuana. Learning how there are provisions in the constitution that address the fact that the Federal GOvernamnet is not always right and there are ways to legally correct it is a valuable civics lesson for everyone.
      6. Your all for “rethinking” the structure of Federal sentencing? But you have no problem thinking about another harmless, non-violent, compasssionate, family man going to jail? I suggest that we should all think again about who should be jailed and then be able to justify it and explain it to everyone, including Davies wife and kids. Going to jail for weed is just wrong
      .

      • NCG says

        I basically agree. I would hope/think that part of being a prosecutor should be weighing the *inherent* equity and proportionality of all charges and potential sentences, and this should be happening at *EVERY* stage of a prosecution. I understand that it’s human for people to dig in emotionally, but I’m sorry, if you’re a federal prosecutor, I expect you to have a little better ethics and self-knowledge than that. With power should come responsibility and maybe even some humility. And I don’t care if that has to be the result of annoying trainings, rather than something that’s inherent to the person. Whatever it takes. I mean, ideally, those people would get weeded out, but again, we’re all just humans. So. For whatever reason, the Justice Department is behaving badly these days, on a number of fronts. Somebody should look into it. Although, I’m sure they also do a lot of things right, too.

        Not that it’s any of my business, but my guess is that Mark doesn’t actually want this guy to go to jail, he’s just very annoyed by this whole situation. I mean, we do all support the rule of law. And, yes, technically, this is still illegal federally. But, the law should be enforced sensibly, and in this case, probably changed. There’s no blood on this guy’s weed, that I know of.

  15. Andrew Laurence says

    There is no relation between how many plants you grow and whether your operation is for profit. If you sell the product (to card holders only) at a cost sufficient to lease your premises, pay your employees, keep the lights on, and other legitimate business overhead, and at the end of the year you’re left with zero profit, you’re a nonprofit and thus OK under California law. Of course, Federal law trumps California law, but Obama said his Justice Department wouldn’t go after the dispensaries. He was either lying or changed his mind. Either way, it’s a stupid use of law enforcement resources.

  16. nedhoey says

    There is also a map I’d like to see. This map would show for starters, the “red”, “blue” and “purple” areas of CA. As in, conservative leaning, liberal leaning and mixed. Then it would show where Federal prosecutions have been. My nonscientific and anecdotal impression tells me that the “red” areas of CA would show the most Federal activity. Especially if the type of enforcement action is also depicted. The most aggressive prosecutions happen mostly in “red” or “purple” zones. Why would that be? I would argue that it is because the local authorities (civil and law enforcement) are the most open to and even inviting of, Federal action in their jurisdictions. Why would that be? Because they share a political/cultural affinity of being anti marijuana, medical or otherwise. AND the political climate in these areas is the most tolerant and even favorable toward traditional harsh enforcement. CA may be a blue state overall but it does have large red areas.

    So if anyone is wondering why Federal enforcement is so inconsistent across CA, I propose to you that it is this. Authorities in blue areas typically oppose and discourage the Feds by refusing to be cooperative and supportive. Harsh Federal actions tend to get very negative press in these areas. And so, because this prohibition is actually more of a culture war and politically based law than a genuine health and safety law (it’s pretext for being on the books), the Feds seek out the safest most cooperative parts of the State to act. This alone should be a serious red flag as to the validity of this prohibition. The power of the State should not be behind oppressing the liberties of those wishing to possess and use the plant to satisfy the intolerance of others. I’m willing to venture that the founding fathers and those who really deeply believe in the 14th Amendment would agree.

    • Warren Terra says

      I don’t know if any of your biases ring true. A number of the federal raids, and most or all of the heavily publicized ones, have been in urban areas, especially at the storefront distribution centers. There definitely has been at least the rhetorical claim that the facilities being targeted have ticked off the local authorities with their disregard for regulations, even basic workplace regulation about record-keeping and employee age that aren’t even connected to marijuana in particular, and that these storefronts were targeted because they were believed to be playing fast and loose even with California’s rather loose eligibility requirements.

      And the most famous marijuana-growing region – or at least the one that got a long-form article in Harper’s a couple of years ago – is Humboldt County, which is rural but went 60% for Obama, just above the statewide total (though obviously below the urban results). I don’t know for certain that it’s a focus of federal enforcement, but if even someone as oblivious as I am has heard of the pot-growing activities there I have to imagine the feds are taking some interest. The county may be rural, but it’s hardly Red-State-America territory there; I’d guess (admittedly based entirely on my prejudices) that it’s rather libertarian and anti-government, including anti-law-enforcement.

      • nedhoey says

        I don’t have “biases” as you put it. I have an anecdotal sense of where the most aggressive and punitive FEDERAL prosecutions are taking place, MOSTLY. Not exclusively but predominately. State LE continues to various degrees to make busts too, in every county. Maybe a detailed analysis would prove me wrong but I doubt it. Don’t conflate state/local actions and Federal ones when considering my theory.

        Rural or urban is not what defines red, blue or purple. Dominant voting patterns do. Humboldt was redder in the past and bluer today. Actually, southern Humboldt is blue and northern is red at this point although Humboldt’s red is probably more libertarian than full on mainstream Republican. The Feds don’t do nearly as much there as one might expect because they aren’t welcome. Their focus in that part of the state is on public land, even thought most growing is actually on private land. Note for example that in Mendocino, there are hundreds of large grows, yet the Feds do not engage in massive aggressive actions for the most part. EXCEPT, for the Northstone Coop, featured on a CNBC documentary. Northstone was prominently featured as a fully compliant provider participating in the Sheriff’s plant tagging program. Within months of the airing, the Feds raided and shut down Northstone without informing the Mendocino Sheriff. Obviously, someone in Federal law enforcement bitterly resented the portrayal on CNBC and targeted Northstone specifically. Needless to say the Mendcino Sheriff was very upset by that action.
        .

    • Bruce Ross says

      nedhoey,

      There are cases where local authorities have essentially invited the feds to enforce the (federal) law where a city or county cannot crack down on abuses under (state) law. So your speculation’s entirely plausible.

      That said, the U.S. DOJ has kept itself busy throughout the state, and I don’t get the impression the Northern District (i.e., coastal NorCal) is any less so.

    • NCG says

      I don’t have an opinion on this question of why the feds are so het up here in California, but I would just remind people that we ought to ask for data on the supposed “local” opposition to MM. There are people in LA who are very upset about MM, but I never see any actual evidence of how it’s supposedly hurting all these neighborhoods. Maybe it is. Maybe it isn’t. It would be nice to actually know something.

  17. Byomtov says

    You know, I’m officially disgusted. Completely. I don’t know the details of this case, but again, the penalties, not to mention the situation, seem absurd.

    I just happened, who knows why, to click on a CNN link having to do with the travails of Lindsay Lohan. Let me suggest that, leaving her theft of a $2500 necklace aside, her driving habits are a much greater threat to the public than anything Davies (or Aaron Swartz) ever did. So she faces a maximum penalty, for a probation violation, of 245 days in jail, which will likely end up being a fraction of that.

    Ok then. I hereby suggest that criminal sentences be determined by the Lohan Principle. Evaluate the damage, or potential damage, done by the defendant, and compare to the potential damage done by a repeat drunk driver. Assess the penalty proportionately, always assiuming that the accused has legal representation as good as Lohan’s.

    • Student says

      Ok, how are you going to dissuade me from smuggling weed? Don’t want to discourage me too much because you don’t think its all that bad a thing to do? Fine you are probably right. What about smuggling cigarettes to avoid the tax? Because if you make it so that the penalty for smuggling cigarettes is much less intense than the penalty for drunk driving, I am going to drop these classes I am in and take a serious look at organized crime as a career path.

      • Laertes says

        Seems like the penalty for smuggling cigarettes should be much less intense than the penalty for drunk driving. A drunk driver is a negligent homicide waiting to happen. A cigarette smuggler is committing tax evasion. If there was a magic button I could push that’d turn a thousand drunk drivers into a thousand cold-sober cigarette smugglers, I’d push it all day long.

      • Byomtov says

        Well, first it is multiple driving offenses, not one.

        Second, I’m not claiming Lohan should be locked up for life, or even 245 days, for that matter. I don’t know what the best way to handle her offenses is. No doubt the bloggers here have some good ideas, like a 24/7 program. I do know whatever has been done hasn’t worked.

        My main point is that I think there is a vast disproportion in the punishments faced by Lohan, on the one hand, and Davies and Swartz on the other when it seems to me that she is a greater menace than the other two combined.

        • Mark Kleiman says

          We actually know how to help the Lindsay Lohans of the world, and to protect the rest of us from the intoxicated misbehavior: an abstinence mandate, compliance monitoring, and swift and certain but proportionate sanctions for each instance of drug use or failure to appear for a test. The alcohol version is called24/7 Sobriety. The illicit-drug version is called HOPE or SWIFT or WISP or Swift-and-Sure. Not rocket science, but it works.

          • NCG says

            Or, we could just tell her she can’t drive anymore. Or both, if you want. But she definitely shouldn’t be driving. Who would be dumb enough to lend a car to someone with no license? Does that happen much, or am I being naive?

    • says

      That says it all. Right as always Mickey. It is not an arguement of what he should have known or expected. It is fundamentally unconstitutional and morally unethical to put this man or anyone else in jail for weed. Period.

  18. Malcolm Kyle says

    Stephen Anderson, a former New York Police Department (NYPD) narcotics detective, recently testified that he regularly saw police plant drugs on innocent people as a way for officers to meet arrest quotas. This practice has cost New York city $1.2 million to settle cases of false arrests. In Anderson’s own words: “The corruption I observed … was something I was seeing a lot of, whether it was from supervisors or undercovers and even investigators,” — Anderson was busted back in 2008 for planting cocaine on four men in a Queens bar.

    “This has been going on for forty years. These corruptions are emerging all over the country. It’s not systemic to a police department, per se, but it is systemic to the War on Drugs in the context that the federal government is basically corrupting local government with their funds and the helter-skelter way of putting these task forces together and diverting local police from their basic public safety duties to the priorities of the federal government in terms of the War on Drugs.”
    —Former Deputy Chief Stephen Downing, a 20-year veteran of the Los Angeles Police Department.

    According to Paul Craig Roberts, a former editor of the Wall Street Journal and former assistant secretary to the treasury under Ronald Reagan, “Police in the US now rival criminals, and exceed terrorists as the greatest threat to the American public.”

    http://www.newstatesman.com/north-america/2011/04/orleans-city-jail-police

    Here is part of the testimony of Judge Alfred J Talley, given before the Senate Hearings of 1926:

    “It has brought the sickening slime of corruption, dishonor, and disgrace into every group of employees and officials in city, State, and Federal departments that have been charged with the enforcement of this odious law.”

    The second biggest business during prohibition in Detroit was liquor at $215 million a year and employing about 50,000 people. Authorities were not only helpless to stop it, many were part of the problem. During one raid the state police arrested Detroit Mayor John Smith, Michigan Congressman Robert Clancy and Sheriff Edward Stein.