Activists' Cases Riding on Raich and Booker,
|Activists' Cases Riding on Raich and Booker|
|Written by By Ann Harrison|
|Monday, 11 April 2005|
The U.S. Supreme Court decision in Ashcroft v. Raich will have far-ranging consequences for medical cannabis patients, caregivers, growers and dispensary operators fighting federal marijuana charges.
Directly at stake are the homes, the businesses and the freedom of at least 30 defendants. Their cases were put on hold following a December 2003 ruling by the 9th U.S. Circuit Court of Appeals entitling Diane Monson and Angel Raich and her caregivers to use and cultivate marijuana under California law.
The 9th Circuit injunction —which the Bush Administration challenged in the U.S. Supreme Court— applies in eight western states that have medical marijuana laws.
The injunction has had an indirect effect, too, according to Attorney Omar Figueroa, who says he is seeing different enforcement practices in federal court districts in California. In the Northern District, from Santa Cruz to the Oregon border, says Figueroa, federal prosecutors appear to be taking a wait-and-see approach, holding off on new medical marijuana prosecutions until Raich is decided. But in the Eastern District, from Yolo County east to Nevada, which includes Sacramento, Figueroa says the attitude is, “if you grow any marijuana we will arrest you and we’ll see what happens with the Raich case. If the Supreme Court puts a stop on it fine, but we’ll still prosecute.”
Recent sentencing decisions from the Supreme Court could also impact many of the federal cases awaiting the Raich decision. The Supreme Court’s decision last June in Blakely v Washington held that federal sentencing guidelines violated a defendant’s right to a jury trial. The court ruled that juries, not judges, should weigh the facts that could increase a defendant’s prison sentence under federal guidelines. The decision struck down a state sentencing system that gave judges too much power in sentencing.
The justices have confirmed this logic in the U.S. v Booker decision and the U.S. v Fanfan decision, which found that federal defendants were also entitled to jury judgments. Justice Stephen Breyer wrote that the federal sentencing system was broken because it forced judges to be driven by sentencing guidelines. The justices retained the guidelines for judges to use as voluntary advisories.
Blakely found that power should be shifted from judges to juries; Booker granted judges more power to act outside the compulsary guidelines.
The Blakely and Booker decisions could change the lives of 64,000 people sentenced in federal court each year. Ninety-seven percent of federal defendants plead guilty to avoid a jury trial that could result in longer sentences. As a result, federal prosecutors often determined the length of the sentence which judges were bound by the guidelines to follow. The Booker decision could have a significant impact on medical cannabis cases because judges can give reduced sentences to people who are clearly patients.
It is unclear how judges will use their expanded discretion to make sentencing decisions. Medical marijuana defendants may reap the benefit of judges’ recognizing their status as patients and caregivers. But most legal scholars predict that judges will not make dramatic departures from the guidelines.
Defense specialist Laurence Lichter expects the lasting impact of the decision in the Raich case will be limited to non-commercial medical marijuana transactions. “Most of our clients don’t do it for free,” Lichter observes, “and the feds can draw a line between people who do it for free and those who don’t.”
Several defendants whose cases straddle the line between commercial and non-commercial have been released from prison pending the outcome of the Raich case. Others hope the Raich ruling will uphold their states-rights arguments and help shield them from having to attend a federal sentencing hearing.
The roster of individuals currently in limbo reads like a Who’s Who of activists who made Prop 215 a reality.
Leroy Stubblefield, a quadriplegic Vietnam veteran from Portland Oregon, was outraged when DEA agent Michael Spasaro siezed 12 marijuana plants from his home in September 2002. Eight of the plants belonged to his two caregiver patients and fellow veterans, Scott Russell and Clarence Vandehay.
Stubblefield said the federal agent came onto his property without his knowledge in the company of the Valley Interagency Narcotics Team (VALIANT) who were performing a search under state law for an allegedly excessive number of plants.
Stubblefield’s attorney Anne Witte filed a claims notice of his intention to sue and a restraining order against state and federal agents. But the state narcotics officers claimed they did not assist the DEA, and a federal judge denied a request for an injunction against future federal raids saying the defendant had not shown a likelihood that he would be raided again. Stubblefield’s suit against the DEA is in the 9th Circuit pending the outcome of the Raich decision. Witte says she based the action on the lawsuit the State of Oregon filed against the DEA for its attacks on doctors and a Commerce Clause argument. Attempting to sidestep a constitutional crisis, Witte is interpreting the Controlled Substances Act as exempting the ultimate user of the substance who is shielded under state law —a tactic that was used in the Death With Dignity Act that left these matters to the states.
A non-profit pro-marijuana group, THC, gave Stubblefield, Russell and Vandehay seven new plants total and an ounce of marijuana each after the raid allowing them to continue to medicate.