Federal judge weighs shift on marijuana sentences

Judge cites Justice Department policy to defer to legalization in Colorado and Washington

October 25, 2013|By Ian Duncan, The Baltimore Sun

A federal judge said Friday he would consider lighter-than-normal sentences for members of a major suburban marijuana smuggling organization — the latest fallout of the drug's legalization in several U.S. states.

U.S. District Judge James K. Bredar noted that federal authorities announced this summer they would not pursue criminal cases against dispensaries and others legally handling marijuana in states where the drug has been legalized.

Bredar, who called the hearing to discuss the issue, said it might be more appropriate to compare the defendants in the Maryland marijuana case to smugglers of improperly taxed cigarettes rather than treat them as hardened drug traffickers.

"It's a serious thing," Bredar said of the group's operation, "but it's not the same as dealing heroin."

Bredar's comments show how the effect of legalizing marijuana in Washington and Colorado last year is rippling across the country, and how federal authorities are struggling to adapt to changing state laws. The drug remains illegal under U.S. and Maryland law, but the case in Bredar's court also highlights evolving attitudes not just toward smokers but toward traffickers and dealers as well.

J. David Nick, a San Francisco-based attorney who represents one of the defendants in the case, said the hearing was an unusual step for a judge to take and that lawyers would be paying close attention to the outcome.

"People will be reading his opinion," Nick added after the hearing.

Bredar did not say when he would issue his verdict, but the first defendants in the case are scheduled to be sentenced Monday.

Public attitudes toward marijuana are rapidly evolving, and a Gallup poll published this week found for the first time a majority of respondents — 58 percent — favor legalizing it.

In Maryland some prosecutors are already experimenting with alternative approaches to marijuana possession cases, diverting defendants into programs where they can complete community service and avoid a conviction.

Maryland took a small step toward less restrictive marijuana laws by allowing the drug's use to alleviate certain medical conditions. The law restricts such use to tightly regulated programs operated out of academic medical centers. Broader decriminalization laws have failed to pass.

But Friday's hearing involved defendants convicted of running a smuggling operation that imported large quantities of marijuana to Howard and Anne Arundel counties from California and New Jersey and laundering the proceeds through an eBay business located in a Jessup warehouse. Twenty-two of the 23 people charged in the case have been convicted; charges against one were dismissed.

Earlier this month, Bredar canceled all of the scheduled sentencings in the case and announced his plan to hold a hearing on changes in Justice Department policy that allow marijuana handlers such as dispensaries and cultivation centers to operate openly in states where marijuana is legal.

In August, Deputy U.S. Attorney General James M. Cole issued a memo advising federal prosecutors to defer to regulators in states where marijuana has been legalized, as long as local rules are properly enforced.

At issue in the Maryland case, Bredar said, is whether that shift means the government has decided the drug is less serious now than when federal sentencing guidelines were formulated.

"Has the federal government changed its enforcement policy?" Bredar asked.

Assistant U.S. Attorney Andrea L. Smith said the topic was an appropriate one to discuss, but argued that marijuana remained a serious drug and noted that the case involved guns and violence. She suggested it might be more appropriate to compare marijuana dealing to trafficking in illegally obtained prescription pain pills rather than to cigarette smuggling.

In a memo filed with the court, Smith acknowledged an internal Justice Department debate about when to pursue cases but argued that once prosecutors move forward, the cases should be treated the same as before.

"The government emphasizes that the discussion within the Department of Justice … is guidance on the evaluation process of what cases to bring, or more accurately, what cases not to bring," she wrote. "Once the case meets the required threshold however, it should be handled, prosecuted, and sentenced, as every other case before the Court."

Bredar said he recognized the legitimacy of the federal statutes outlawing marijuana and the serious nature of the crimes in this case. But he also said the federal government wouldn't necessarily defer to state regulators if that state had decided to legalize some other drugs.

"The government would never go along with this if some crazy state decriminalized heroin," he said.

And on a sliding scale of regulated substances, Bredar said, he thought marijuana had moved away from hard drugs and toward tobacco.

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