Nicole Flatow, ThinkProgress

More than six months ago, the U.S. Department of Justice once again changed its position on marijuana. In the wake of Washington and Colorado laws legalizing recreational marijuana and the proliferation of medical laws, the agency that oversees federal prosecutors called on its U.S. attorneys to avert prosecution of those growers and distributors complying with state law.

U.S. Attorney General Holder also decried the impact of mandatory minimum drug sentences, and directed his prosecutors to avert them in non-violent drug cases — even cases already pending. But in a case set to go to trial next week, federal prosecutors in Washington will seek a ten-year mandatory minimum sentence against a family of individuals with medical marijuana cards who say they were growing marijuana for their own use.

By all appearances, the Harveys are not the sort of people that would be the target of federal prosecution. In a 2012 raid during an era when federal authorities were regularly raiding facilities in compliance with state law, officials seized 44 premature marijuana plants, some marijuana cookies, and several other items from the home of Larry Harvey and his wife Rhonda Firestack-Harvey.

Larry Harvey, 70, is a qualifying medical marijuana patient in Washington and suffers from conditions that include heart disease and severe gout, according to Americans for Safe Access. He was nonetheless jailed for several days and “denied medical attention.” In the intervening years, he, his wife, his son and daughter-in-law, and a family friend, are all facing felony charges of federal marijuana distribution. To lob charges of growing more than 100 plants, federal prosecutors inferred consistent growth over a period of several years, according to Harvey’s lawyers.

In defense, the Harveys sought to argue that they are growing marijuana plants in a small remote section of this 33-acre plot to treat all five of their own medical conditions and not for any other purpose. But as has been in the case in many other federal trials before it, the judge ruled this week that they cannot even bring up Washington’s medical marijuana law, because it is not a defense to federal marijuana charges. After all, under federal law, there is no exception to marijuana prohibition, for medical reasons or otherwise.

There is no evidence that the factors the Justice Department listed as priorities for going after medical marijuana cases were in play in this case, among them marketing to minors, funneling revenue to criminal enterprises or across state lines (there is no evidence at all of revenue), or growing marijuana on public lands. One of the primary factors escalating these marijuana charges is the fact that the Harveys had guns in their home. These guns were possessed legally in a rural mountainous region of eastern Washington, where gun possession is common both for hunting and for fending off coyotes and other animals. But their presence nonetheless allowed prosecutors to charge them with a separate count carrying a five-year minimum sentence of possession of firearms in furtherance of a drug crime.

Other than the mere presence of these guns, there is also no apparent evidence of violence associated with their marijuana growth. Citing all of these factors, the Harveys’ lawyers wrote to U.S. Attorney General Eric Holder arguing that this case was exactly the sort the Justice Department should not target under their latest guidance. “When deferring to prosecutorial discretion in recent policy memos, is this the outcome you had in mind?” they wrote. But so long as the federal Controlled Substances Act includes blanket criminalization of marijuana use, individual prosecutors retain the discretion to do what they like, and some are.

“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,” said Kari Boiter, the Washington State coordinator for Americans for Access.

The Harveys’ lawyers also pointed to a recent Maryland federal judge’s decision to halve the recommended marijuana sentence for a defendant sentenced after the DOJ’s new guidance. While Maryland did not at the time even have a medical or recreational marijuana law for the defendant to comply with, U.S. District Judge James K. Bredar reasoned that the memo signaled a broader shift in attitude from the time when the sentencing guidelines were issued 20 or 30 years earlier.

The DOJ memos have been part of that shift. So has an initiative by President Obama to exercise his presidential power to shorten drug sentences, and the increased willingness of politicians to come out in favor of legalized medical marijuana, at least in the states.

But with the Harveys unable to raise their state’s medical marijuana law when they go to trial Monday, the odds have increased that they could join other medical marijuana defendants in federal prison.

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