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