CHAVEZ SENTENCE IS CRIMINAL

Marvin Chavez's severe sentence, handed down Friday, points up the
importance of developing guidelines and protocols for the orderly and legal
implementation of Prop. 215.

Mr. Chavez was sentenced by Judge Thomas J. Borris in Orange County's West
Court to 6 years in state prison for selling marijuana, slightly less than
a potential penalty of 8 years. Mr. Chavez contended he was attempting to
deliver marijuana to patients who needed it, under protection of
Proposition 215, passed by voters in 1996, which allows marijuana use with
a doctor's recommendation. Prosecutors claimed the transaction was a simple
sale, which is still illegal under state law. Mr. Chavez plans to appeal.

In the wake of Mr. Chavez's sentence, sick and disabled people with a
legitimate need for marijuana have no clearer idea of how to obtain their
medicine legitimately than they did before.

If anything, James Silva, one of Mr. Chavez's attorneys, had it right when
he told us after the sentencing, "The message this sends to patients is
simple: hide."

It shouldn't be that way. And it could and should have been less painful
for all concerned.

The first mistake was made by law enforcement officials who refused to
speak or meet with Mr. Chavez after Prop. 215 was approved. A patient
himself, Mr. Chavez early on announced his intention to develop a
cooperative to permit patients access to medical marijuana and tried to
elicit advice and cooperation from law enforcement officials.

Instead of sitting down with him and saying, "Listen, these are the rules.
If you follow them you'll be OK, if you don't you're going to jail," the
DA's office commenced undercover investigations against him. In other
localities in California local officials have closed medical marijuana
distribution operations through civil injunctions rather than criminal
charges.

Mr. Chavez, as it turned out, could not look to Prop. 215 to help him in
court. Judge Borris prohibited the jury to consider Prop. 215 during their
deliberations. Consequently, the jury considered a narrow transaction and,
on a larger scale, the final outcome does little to help develop legal
guidelines for giving patients access to medical marijuana through
legitimate channels.

Judge Borris, to be fair, was looking at an imperfect person in this
defendant. Mr. Chavez had had previous brushes with the law -- in fact, he
received the injuries that led to his disabilities while in prison on a
cocaine possession charge (he says he stopped doing it). One of those
violations took place when he was released on his own recognizance. So it
might be understandable that Judge Borris would refuse to release Mr.
Chavez on probation without prison time.

But the magnitude of the sentence still seems on the high end of the range
in sentencing guidelines. Mr. Chavez may have tried to implement Prop. 215
imperfectly, even illegally, but he was trying to follow the proposition
the best way he knew how. We talked to many patients who attended the trial
who have been helped by Mr. Chavez. The authorities should have worked with
him rather than pose as patients to meet him, ask for marijuana, then
"sting" him when a voluntary donation to the group changed hands.

James Silva and J. David Nick, Mr. Chavez's attorneys, say they will try to
ensure that Mr. Chavez has access to the medicine to which he himself is
legally entitled -- as all parties in this case have explicitly
acknowledged -- while he is in custody.

Others need to step up on this issue. California Attorney General Bill
Lockyer's office says he is assembling a task force to develop a statewide
plan to implement Prop. 215. Perhaps he should enter the appellate process
on Mr. Chavez's behalf as well. Newly elected Gov. Gray Davis has the
authority to pardon Mr. Chavez or to commute his sentence.

Local officials can help also. Sheriff Mike Carona and District Attorney
Anthony Rackauckas could meet with people on all sides of the issue who
have a stake in the development of consistent policies toward medical
marijuana patients and establish guidelines that will tell people how to
avoid running afoul of the law. The county supervisors could study the
matter and develop an implementing ordinance. Council members in local
cities could develop guidelines and ordinances -- as is happening in fits
and starts in other California cities.

Mr. Chavez will lose more of his life to incarceration in large part
because state and local officials failed to implement the voters' mandate.
That shouldn't happen again.