AMERICA'S SCHIZOID POT CULTURE

4 In 10 Have Smoked It, And Millions Are Still Getting Busted

The Obama administration is giving mixed signals on its pot policies
despite a tidal shift in social views on legalizing marijuana.

Fully 80 percent of Americans approve of the use of marijuana for
medicinal purposes, and fewer than one in five favor locking up
non-violent adults who use pot in general. But since the inception of
the disastrous "War on Drugs," politicians from across the political
spectrum have found that being a dedicated drug warrior is an easy
way to appear "tough on crime" without much political risk.

The result of that divide is a truly schizoid patchwork of laws
regulating the use of cannabis. Several states have decriminalized
the possession of small amounts of weed -- most recently
Massachusetts this year -- and 13 states have legalized medical
marijuana. Yet each and every year we continue to lock up
three-quarters of a million Americans for possession of marijuana and
waste an estimated $14 billion on our misguided prohibition of a cash
crop that's worth more than wheat and corn combined.

The Obama administration has sent markedly mixed signals about
whether it would continue the most regressive element of the "Drug
War" -- Bush's policy of going after medical marijuana providers in
the states that have legalized the industry.

Bush turned federal law-enforcement into a de facto White House veto
over state-level drug laws (and, often, over the will of the people
- -- 8 of the 13 states that permit the use of medical marijuana got
there through a referendum process). It's cliched to describe the
more labyrinthine corridors of our legal system as "Kafkaesque," but
the way Bush did it would draw a knowing sigh from old Franz.

Officially, in states where they're legal, the federal government
only goes after medical marijuana operations when they violate both
federal and state law. Officially. But after the DEA raids these
shops, their owners are prosecuted in federal courts, and they need
only be charged under federal laws. And here's where it goes from bad
policy to simple insanity: thanks to a 2005 Supreme Court decision in
Gonzalez v. Raich, defendants are prohibited from entering evidence
at trial that they were in compliance with local and state laws when
they were busted.

Then, if convicted, these operators of businesses that are legal in
their respective states face harsh mandatory drug sentences in the
federal justice system -- long minimums that Congress required in the
1980s ostensibly to deter "drug king-pins."

That's the situation Charles Lynch is looking at. Lynch is facing up
to 20 years in prison after being convicted under federal law for
running a medical marijuana clinic in Morro Bay, California. Before
DEA agents busted him, Lynch had been in business for 11 months.
According to the Los Angeles Times, the clinic had "the blessing of
the city's mayor and other public officials" -- including the city's
Chamber of Commerce. Morro Bay City Attorney Rob Schultz said that he
had received only one complaint about Lynch's operation in that time
- -- and that was from someone griping about the quality of the pot
Lynch sold. The town's mayor, Janice Peters, described Lynch as
"polite, compassionate," and at an April 23 sentencing hearing Steven
Beck, the father of a 17 year-old suffering from bone cancer who,
following the advice of his oncologist, had bought marijuana from
Lynch's clinic to treat the side-effects of chemo-therapy, told the
court that Lynch had often given the boy pot for free. After
describing how the teen "could not eat. He could not sleep. His
personality became dark and angry," Beck added, "I never felt as
though Charlie was there for the money."

Federal prosecutors charge that Lynch violated California's medical
marijuana law because he wasn't a primary care-giver, but Joe Elford,
Chief Counsel for Americans for Safe Access, a medical marijuana
advocacy group, said, "there is not even any evidence that state law
was violated." Elford added, "It's disingenuous to accuse people of
state law violations and then prosecute them under federal law,
thereby denying them an adequate defense in federal court."

While medical pot operators can't use their compliance with state
laws as a defense, it can be brought up at sentencing as a mitigating
factor. On April 23, District Court Judge George Wu, a
Bush-appointee, said that he was inclined to impose a sentence less
harsh than the mandatory minimum, but it wasn't clear that the law
would allow him to do so (there is a so-called "safety-valve" in the
mandatory sentencing scheme that allows judges leeway in certain
circumstances, but Wu was unsure whether Lynch's case qualified). "If
I could find a way out, I would," Wu said. He gave lawyers until June
2 to file briefs on the matter.

Lynch's case is seen as a test of whether the Obama administration
will reverse the Bush Justice Department's policy towards medical
marijuana, and so far the signals have been decidedly mixed.

In March, the New York Times reported that Attorney General Eric
Holder had "outlined a shift in the enforcement of federal drug laws,
saying the administration would effectively end the Bush
administration's frequent raids on distributors of medical
marijuana." Holder said the "Justice Department's enforcement policy
would now be restricted to traffickers who falsely masqueraded as
medical dispensaries and 'use medical marijuana laws as a shield.'"

A week later, a San Francisco dispensary was raided by the DEA. In
early March, the Los Angeles Times reported, "the U.S. attorney in
Los Angeles sent a confidential memo to prosecutors last week
ordering them to stop filing charges against medical marijuana
dispensaries, then abruptly lifted the ban."

The conflicting signals prompted Judge Wu to ask for guidance from
the Justice Department before proceeding with Charles Lynch's case.
The DOJ responded with a memo saying, "the Office of the Deputy
Attorney General has reviewed the facts of this case and determined
that the investigation, prosecution, and conviction of defendant are
entirely consistent with the policies of DOJ and with public
statements made by the Attorney General with respect to marijuana
prosecutions." But, again, Charles Lynch wasn't charged with
violating California law.

If this seems a mess of contradictory statements and actions, that's
because it is. Yet marijuana reform advocates caution that it's
premature to judge the young administration's policies. Carey Woodson
of Americans for Safe Access told the Drug War Chronicle, "I think
it's confusion --- it's important to remember that we aren't even
close to having the appropriate Obama officials seated at this
point." (This was before the San Francisco raid).

But in a country that imprisons hundreds of thousands of people each
year for simple possession -- for a "crime" that 4 out of 10 adults
have committed -- it bears close scrutiny. So far, we haven't seen
the change that we were promised.

Joshua Holland is an editor and senior writer at AlterNet.