MONTANA LAW IS HARSH, SENTENCES VARY FOR MARIJUANA USE, DISTRIBUTION

The amount is so little, the potential penalty so very big.

Get caught passing marijuana to a friend in Montana - as Matthew Otto
did last November - and you could end up facing life in prison.

In theory, at least. And in law, too.

Otto was convicted last month of criminal distribution of a dangerous
drug, a classification that includes marijuana. The law in such cases
calls for a minimum penalty of a year in prison and a maximum of life.

Actual practice is a different story.

"Nobody is ever going to ask for life in prison, ever," said Deputy
Missoula County Attorney Andrew Paul, who prosecutes drug cases,
including Otto's. "It's not as if any county attorney's office in the
state has a vendetta against small-time weed use."

Brant Light, who heads the Montana Department of Justice's
Prosecution Services Bureau, said that "while Montana's laws - which
are crafted by the Legislature - do not differentiate between
substances or amounts, the reality is judges by and large are not
sentencing young, first-time offenders to prison for selling small
amounts of marijuana."

The Montana Supreme Court ruled in 1983, in State v. Arbgast, that
state law allows for deferred or suspended sentences in cases
involving marijuana sales.

"While the judge exercises his or her best discretion," Light said,
"those first-time offenders are likely to face a deferred or
suspended sentence."

A review by the state Public Defender's Office bore out those
statements. Public defenders handled 76 cases statewide between
January 2010 and January 2011 involving distribution of dangerous
drugs, a category that includes narcotics, opiates, heroin and
cocaine. Five of those cases involved small amounts of marijuana and
two of the five were in Missoula County. Probationary sentences are
typical, according to the Public Defender's Office.

Still, "I don't see anything in statutes themselves that would
preclude them from applying (the stricter penalty) when they see
fit," said Chris Lindsey, a Missoula attorney who often represents
people in medical marijuana cases.

The fact that the penalty remains on the books rattles marijuana proponents.

Said John Masterson, head of Montana NORML, the National Organization
for the Reform of Marijuana Laws, "I'll take (the county attorney's
office) at their word that that's the unwritten prosecutorial policy."

But he called the law, "madness, absolute madness. ... Montanans
believe it's absurd to have laws prohibiting consensual acts between adults."

While there's plenty of gray regarding the penalty, the law regarding
the offense is black and white.

Otto had a medical marijuana card. But his legal pot became illegal
the minute he handed a pipe filled with it to someone else, Missoula
County District Judge Dusty Deschamps reminded jurors in his
instructions to them on March 30. Such instructions don't include
information on the potential penalties.

If jurors found that Otto passed that pipe - even though it held just
3 grams of marijuana, about a tenth of an ounce - Deschamps told
them, they had to find him guilty. And they did.

Montana's law is among the toughest in the nation, according to
NORML, which maintains a list of state penalties for marijuana offenses.

In Oregon, California and Ohio, for instance, "gifts" of small
amounts of pot are violations or misdemeanors. And many states take
the amount involved into consideration when it comes to the sale and
distribution of marijuana. Sell or distribute to minors, or in a
school zone, and the penalty goes up. In Montana, penalties increase
if minors are involved, or if someone has previous convictions.

Alabama has a potential life sentence for marijuana offenses, but
only for selling to minors, or trafficking more than 1,000 pounds.

Recent prosecutions of marijuana distribution in Missoula County also
involved other allegations, such as dealing drugs, or sharing with minors.

Teuray Cornell, whose case gained national notoriety in December when
potential jurors objected to prosecuting a case involving 1/15th of
an ounce of marijuana, was a convicted felon who also was accused of dealing.

Earlier this month, a 28-year-old medical marijuana patient, Benjamin
Levi Bartlett, was charged with criminal distribution of dangerous
drugs after being accused of sharing a bowl last summer with a
15-year-old girl on the Clark Fork River trail.

Last month, Tyler Andre Pyle, an 18-year-old medical marijuana
patient, allegedly gave marijuana-laced butter to a DeSmet School
eighth-grader, who made cookies with it and shared them with friends
at school. Pyle also was charged with criminal distribution of dangerous drugs.

And in Ravalli County, a Billings couple was charged last month for
selling "a bowl or two" of their legally acquired medical marijuana
for $10, according to the Ravalli Republic.

Therein lies the problem with Montana's law, said Lindsey.

"What a prosecutor may do in a fairly liberal community may be
completely different than what a prosecutor might do in a different
community," Lindsey said. "It comes up against the issue of
fundamental fairness on many fronts."

All of those cases will play out in court during the next several weeks.

Bartlett is scheduled for a preliminary hearing Monday in Missoula
County Justice Court. Otto is to be sentenced May 3.

And Jaclyn Shannon, 19, and Christian Dinkle, 18, the Billings couple
accused of selling the medical cannabis at the Trapper Creek Job
Corps in Ravalli County, have another court appearance May 12.

Meanwhile, final action could come this week on the Montana
Legislature's sole remaining revisions to the state's medical
marijuana law. Any change in the present law, enacted by voter
initiative in 2004, could widely affect marijuana prosecutions
throughout the state.

Also, Montana's U.S. attorney, Michael Cotter, last week released a
letter reiterating that his department would prosecute businesses
unlawfully marketing marijuana. That letter also re-stated that the
U.S. attorney's office "generally does not focus its limited
resources on seriously ill individuals who use marijuana as part of a
medically recommended treatment regimen consistent with applicable
state law" - a position taken by the Justice Department in 2009.

Both situations underscore the need to formally lower the penalties
for cases involving small amounts of pot, Lindsey said.

"Our criminal laws have not been updated to reflect what I think is
where most people would place marijuana in the big scheme of things,"
Lindsey said.

Changing law will mean electing legislators who support such change,
Masterson said.

"All eyes are on 2012," he said.