By John Seiler | Watchdog.org
HELENA — Even though Montanans voted 62-38 percent in a 2004 referendum to allow medical marijuana, provider Richard Flor recently died while in federal custody, a victim of the Obama Administration’s ongoing crackdown on medical marijuana.
His death highlights conflicts between the federal government and state initiative. Medical marijuana is legal in 17 states and the District of Columbia.
“Richard Flor’s death came weeks after a federal judge denied an attorney’s request to release the 68-year-old Miles City resident while he appealed his five-year sentence,” reported the Associated Press. “U.S. District Judge Charles Lovell wrote in his Aug. 7 order that it was ‘unfortunate’ that Flor’s transfer to a Bureau of Prisons medical facility was delayed, but ‘it is not factually or legally significant.’
“Lovell sentenced Flor in April after Flor pleaded guilty to maintaining a drug-involved premises. Flor previously was diagnosed with dementia, depression and numerous medical conditions, and Lovell recommended that he be evaluated by federal prison hospital officials to determine what facility would be best suited for him.”
For Flor, a five-year conviction turned into a death sentence.
AP continued, “Flor was one of the co-founders of the now-defunct Montana Cannabis, which provided marijuana for about 300 people out of locations in Helena, Missoula and Billings, and from Flor’s Miles City home. It was one of the largest medical marijuana operations to be raided by federal agents in March 2011 in a crackdown on large providers.
“Three of his former partners are either facing or have pleaded guilty to similar federal drug charges after protesting that they were operating in compliance with state medical marijuana laws.”
Campaigning in 2008, then-Sen. Barack Obama pledged, “I’m not going to be using Justice Departmentresources to try to circumvent state laws on this issue.”
But he has done the opposite.
In April 2012, the president, who once taught constitutional law at the University of Chicago, explained to Rolling Stone founder Jann Wenner, “Here’s what’s up: What I specifically said was that we were not going to prioritize prosecutions of persons who are using medical marijuana. I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana — and the reason is because it’s against federal law. I can’t nullify congressional law. I can’t ask the Justice Department to say, ‘Ignore completely a federal law that’s on the books.’ What I can say is, ‘Use your prosecutorial discretion and properly prioritize your resources to go after things that are really doing folks damage.’ As a consequence, there haven’t been prosecutions of users of marijuana for medical purposes.
“The only tension that’s come up – and this gets hyped up a lot – is a murky area where you have large-scale, commercial operations that may supply medical marijuana users, but in some cases may also be supplying recreational users. In that situation, we put the Justice Department in a very difficult place if we’re telling them, ‘This is supposed to be against the law, but we want you to turn the other way.’ That’s not something we’re going to do. I do think it’s important and useful to have a broader debate about our drug laws. One of the things we’ve done over the past three years was to make a sensible change when it came to the disparity in sentencing between crack cocaine and powder cocaine. We’ve had a discussion about how to focus on treatment, taking a public-health approach to drugs and lessening the overwhelming emphasis on criminal laws as a tool to deal with this issue. I think that’s an appropriate debate that we should have.”
Bringing up the change in crack cocaine sentencing is ironic. CNN reported last November, “Congress passed the Fair Sentencing Act in August 2010, changing the 100-to-1 disparity between minimum sentences for crack and powder cocaine to 18 to 1.” The reason: black defendants disproportionally were being given long sentences – a five-year minimum – for crack cocaine while powder-cocaine defendants, who largely are white, were given smaller sentences for the same amount of the contraband drug.
So Flor’s sentence for marijuana was the same as the old, pre-Obama sentence for crack cocaine.
After Obama became president, his more tolerant attitude toward medical marijuana was instituted by his attorney general, Eric Holder. On Oct. 19, 2009, Holder announced new guidelines: “It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal. This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws.”
That was three years ago before the recent crackdown. “This was a 180-degree change by President Obama that started only in November 2011,” said Allen St. Pierreexecutive director of the National Organization for the Reform of Marijuana Laws. “Since then, an estimated 400 collectives and dispensaries have been shut down in California alone without a change in law. He came into office saying something different.”
The president also has acknowledged toking marijuana when he was younger, as have former presidents Bill Clinton and George W. Bush.
St. Pierre said Obama now is worried that, in the 2012 election, he would be labeled as someone who effectively legalized marijuana. However, the crackdown is being conducted selectively in states where the presidential election is not being strongly contested, such as in heavily Democratic California and in Montana, which is expected to vote fairly strongly for Republican Mitt Romney.
By contrast, there’s no crackdown in Colorado, a battleground state where medical-marijuana supporters’ votes are needed. “Colorado even has a state medical-marijuana enforcement division that makes sure they’re selling, manufacturing and taxing it correctly,” St. Pierre said. That’s the state Department of Revenue, Medical Marijuana Division.
“Obama needs Colorado,” St. Pierre added. “He’s not laying waste to that industry with 2,000 dispensaries.”
St. Pierre’s view was seconded by a June 2 Reuters story. “[W]ith Obama facing a stiff challenge from Republican Mitt Romney in the November 6 election, it’s ironic that his chances of winning the key state of Colorado could hinge on marijuana legalization, supported by a growing number of Americans.
“At issue is whether Obama will get a boost from young voters expected to be among the most enthusiastic backers of a Colorado ballot initiative that would legalize possession of up to an ounce of pot for recreational use — and give the state the most liberal marijuana law in the nation.
“The initiative is a reflection of Colorado’s unique blend of laid-back liberalism and anti-regulation conservatism that helped make the state the birthplace of the Libertarian Party….
“The Rocky Mountain State already allows the use of marijuana for medical purposes such as severe pain relief, and some communities have embraced it enthusiastically.
“The prevalence of medical marijuana dispensaries in Denver has moved pot into the mainstream in Colorado’s capital city.
“In Denver County, home to about 600,000 people, one in every 41 residents is a registered medical marijuana patient, leading to chuckles about the ‘Mile High City.’ Denver is roughly a mile above sea level.”
U.S. Rep. Paul Ryan, the Republican nominee for vice president, also has appealed to Colorado medical-marijuana supporters. Speaking in Denver on Sept. 8, AP reported that he said, “It was up to Coloradans to decide” whether or not to legalize medical marijuana.
However, AP added, “A spokesman for Ryan later said that Ryan agrees with Republican presidential nominee Mitt Romney, who has said that marijuana should never be legalized.
“Romney told a Colorado reporter earlier this year, ‘I think marijuana should not be legal in this country. I believe it’s a gateway drug to other drug violations.’”
So it’s unclear what would happen should the Romney-Ryan ticket win in November.
Part of Montana’s problem is that its state law is a mess, St. Pierre said, with the initiative and other state laws in conflict. To deal with that, Measure IR-204 is on the November 6 ballot. According to Ballotpedia, “The measure will place a legislative revision of an approved 2004 medical marijuana measure to a vote, instead of making it a law automatically. The measure was slated to become a law on May 13, 2011. To read more on the legislation that is seeking to revise the 2004 measure, click here. The petition to place the legislation on the ballot was filed with the Montana Secretary of State by John Masterson of Montana Cannabis Industry Association on May 12, 2011. The status of the referendum could be affected by a recent court ruling related to the newly passed revisions.”
I called at least twice the offices of all the major candidates running for office in Montana this November 6: Democratic Sen. Jon Tester and Republican Denny Rehberg for U.S Senate; Democrat Steve Bullock and Republican Rick Hill for governor; and Democrat Kim Gillan and Republican Steve Daines for the U.S. House of Representatives.
I inquired about the implications of the federal medical marijuana in Montana and the 10th Amendment to the U.S. Constitution, which is supposed to guarantee a great deal of federalist autonomy on such matters to the 50 states. I didn’t get a response from any of the six.
I also talked to Dan Cox, the libertarian candidate for U.S. Senate from Montana. “It’s a shame Richard Flor died in custody, because he shouldn’t have been there in the first place,” Cox told me. “The federal government doesn’t have any authority to prosecute anyone on medical marijuana charges. When alcohol was outlawed, they needed a constitutional amendment to do it,” the 18th amendment, which established Prohibition nationally. “But they never did that with the war on drugs.”
Steve Kubby was one of the key activists behind Proposition 215, California’s pioneering 1996 medical marijuana initiative that won with 62 percent of the vote. It ignited similar laws in other states, including Montana’s Measure I-148 in 2004.
Kubby ran for California governor in 1998 on the Libertarian Party ticket against then-Attorney General Dan Lungren, currently a Republican representative in Congress. Shortly after, Kubby was arrested on drug charges, but later all charges were dismissed and the arrest was expunged from the record. Denied medical marijuana in prison, he nearly died from the cancer that the medicine, according to his doctors, keeps in remission.
“I can relate to Richard Flor because of the time I spent in prison,” Kubby told me. “Medical marijuana patients are singled out for particularly unpleasant treatment. The problem is that a lot of police believe that medical marijuana is a joke or a fraud. They don’t believe the medical claims of the patient. The propaganda of the federal government is that most people take advantage of the law.”
The federal government, he said, fails to acknowledge studies that show the efficacy of medical marijuana in treating some diseases, such as a recent study by the Center for Medicinal Cannabis Research at the University of California, San Diego. In the summary of the Sacramento Bee, “State-funded studies – costing $8.7 million – found pot may offer broad benefits for pain from nerve damage from injuries, HIV, strokes and other conditions.”
“This was not a special or unique freak accident,” Kubby said of Flor’s death in federal custody. “I was exposed to it myself. I’ve known many victims who have been mistreated by the police, who think they’re hiding behind the law. It’s terrible. I would like to see an investigation. Although I don’t know the details, I would suspect that taking Flor off his medical marijuana triggered his fatal heart attack.”