Getting Right With Jah
Published: November 6, 2013
Maryland U.S. District Judge James Bredar did something eminently sensible and long-overdue in recent weeks: He reconsidered the severe penalties facing federal pot defendants.
The Nose can almost hear the late pot prophet Bob Marley singing “Jah Live” in his grave about it—“The truth is an offense but not a sin!” Bredar’s welcome truth is that, yes, pot crimes are offenses, but not so sinful anymore that they should be penalized like those involving completely prohibited substances.
In the end, Bredar decided the 22 defendants before him for sentencing, after convictions in a massive, multi-state money-laundering and pot conspiracy, would face prison terms on the pot counts that would be 20 to 25 percent shorter than those called for in outdated federal sentencing guidelines.
The Nose hopes other judges take note and follow Bredar’s example—Maryland U.S. District Judge Roger Titus, for instance, who eventually will sentence Daniel McIntosh in a separate, massive pot-conspiracy case. Thanks to McIntosh’s prior convictions, he’s facing the outrageous prospect of living out his life in prison, despite playing a mid-level (if that) role in a non-violent pot business.
Before reaching his reasonable conclusion, in early October, Bredar first asked parties in a 24-defendant money-laundering- and pot-conspiracy case headed by Kerem Dayi to “address the question of what impact (if any) recent developments in national marijuana enforcement policy should have as the Court applies the sentencing factors” in assessing penalties against 22 convicted defendants whom he had not yet sentenced.
The developments noted by Bredar were: legalization measures passed last year in Colorado and Washington state allowing regulated production and sale of pot for recreational use; the fact that 18 other states and the District of Columbia have legalized marijuana for medical use; an August directive from Assistant U.S. Attorney General James Cole liberalizing pot-enforcement priorities for federal prosecutors in light of the Colorado and Washington measures; and Cole’s subsequent congressional testimony that the feds are reassessing how they view banking-and-finance conduct that supports marijuana entrepreneurship in states where it has been legalized.
Bredar’s early October order did not refer to another late-arriving development: that 58 percent of Americans now support pot legalization, according to a Gallup poll released Oct. 22. That’s up from 12 percent in 1969, when Gallup first posted the question.
Defense attorneys in the Dayi case responded with filings urging Bredar to ignore strict federal sentencing guidelines. “The federal guidelines provide for very harsh punishment,” wrote New Jersey lawyer Stacy Ann Biancamano, who represents defendant Patrick Russo, “while the movement among many states has been to make marijuana offenses the lowest priority of law enforcement.” So, she continued, those guidelines “should not be used as the basis for calculating” sentences until “they are changed to reflect current trends” in pot enforcement.
The main prosecutor in the case, veteran Assistant U.S. Attorney Andrea Smith, scored some points for the other side of the argument, saying the changing pot climate in this country should have no impact on federal sentences—though, in the Nose’s view, she is sticking to her guns in a fight that the hardass contingent has already lost and will continue to lose as time passes.
Smith pointed out that the Department of Justice’s changing posture toward pot crime is directed at: stemming the prison-population explosion caused by too-strict pot sentences; assuaging disproportionate impacts that enforcement is having on certain populations, especially young, poor minorities; and avoiding sending too many low-level drug-abusers to federal prison. Yet, Smith argued, none “are relevant to this prosecution.”
While “the government does not anticipate unduly harsh sentences” in the Dayi case, Smith wrote, and while the conspiracy was not composed of desperate people with drug problems or from a “low income, urban demographic,” it was in fact populated by “well heeled, mostly middle-aged, bright and ambitious persons . . . who not only should have known better, but who did know better.”
Smith waxed smartly about Prohibition. “One of the fallacies of the argument one hears likening the marijuana laws to the prohibition of alcohol,” she argued, “is that the criminal enterprises that evolved selling alcohol during Prohibition moved into selling heroin” before it was lifted. “It’s not about the marijuana. It’s about the money. . . . Marijuana has always been the low risk, high profit gamble. These defendants took that risk.”
And they lost. But the question Bredar posed was not about the risks the defendants took—which are presented by law enforcement’s discretion to go after them—but about, having been caught and convicted, the prices they must pay for having lost the gamble.
Bredar’s deconstruction of the issue, memorialized in an opinion filed Nov. 1, looked at two of the factors that come into play whenever people are sentenced in federal court: the seriousness of the offense and the possibility of unequal justice being applied.
Clearly, Bredar noted, society sees pot crimes today as much less serious than it did in 1987, when the current sentencing guidelines were instituted. And, he pointed out, if Dayi and his co-defendants had undertaken similar conduct today in Colorado and Washington, and abided by the regulations there, they wouldn’t even be prosecuted by the feds—so the unequal-justice factor comes into play too.
Bredar’s opinion emphasized that the “shift from prohibition to regulation moves marijuana-related offenses further from the traditional drug-trafficking offenses and closer to black marketeering in terms of severity.” And it laid out a rational case for judges to use their sentencing discretion in pot sentences to “dampen the disparate effects of prosecutorial priorities,” which allow federally banned conduct to go on in a regulated fashion in two states, but crack down on it everywhere else.
It remains to be seen how influential Bredar’s well-reasoned thoughts on this will become. At the very least, though, the Nose expects he’s provided fodder for defense attorneys’ sentencing memos from here to eternity—or at least until the sentencing guidelines are rewritten to incorporate society’s growing acceptance of the pot trade.