Guidelines Give More Clemency for Crack than Cannabis

A silver-haired 65-year-old “classic hippie” with soft eyes and a penchant for flowing skirts; there aren’t many people like Sherryanne “Share” Christie in federal prison.

Christie began serving a 27-month sentence at a federal prison camp in Phoenix, Arizona, on Oct. 11, 2016. Her official punishment began after more than six years of supervised release since her arrest in 2010 for her role in running The Hawaii Cannabis Ministry — a small-scale cannabis operation on Hawaii’s Big Island — with her husband Roger.

For the couple and their followers, marijuana is a religious sacrament; for the U.S. Justice Department, growing 284 marijuana plants and distributing the harvest is still a crime.

Rather than go to trial and risk a long mandatory minimum under draconian federal drug laws, Christie took a plea deal. This is the kind of nonviolent, victimless drug offense that’s no longer considered serious enough for lengthy punishment — especially in the context of America’s multi-billion-dollar cannabis industry, where 284 plants wouldn’t earn a cannabis entrepreneur even consideration for a mention in a marijuana business publication.

And if leniency couldn’t come from a judge in the appeals process, where Christie’s conviction was upheld several times, surely it would come from Barack Obama, who publicly declared the country’s marijuana laws outdated and reduced the prison terms of more nonviolent marijuana offenders than any other president in history.

Or not.

When Obama’s pardon attorney released the final 330 names of prisoners whose sentences would be cut short or be pardoned entirely, Christie’s name was not on the list. Nor were the names of several other nonviolent marijuana offenders.

In a cruel twist, these prisoners are doing time for crimes which are now legal across most of the United States, but their penalties are not quite serious enough to be considered for clemency.

Slipping Through the Cracks 

America’s highest-in-the-world incarceration rate is well-known. For many, it’s a costly national embarrassment.

Since visiting a federal prison in 2014 and identifying the drug war’s role in warehousing Americans behind bars, Obama has commuted the sentences of more than a thousand nonviolent drug offenders.

Obama left the White House having released more prisoners from custody early than any other president in history: 1,715, including 568 prisoners who were serving life sentences. He commuted 330 sentences in one day alone — but left many nonviolent marijuana offenders behind bars to serve out their terms because their punishments were too light.

Obama set some rules for considering inmates for clemency. They had to be nonviolent offenders and well-behaved in prison. A weapons charge, an assault charge, or a stint in “the hole” in prison could all disqualify an otherwise ideal candidate. And though there were exceptions, inmates also had to have served more than 10 years.

The majority, however, have been for crack cocaine and not cannabis.

Tony Papa is an activist with the Drug Policy Alliance and a beneficiary of presidential clemency. He received a sentenced of 15 years to life after a cocaine bust in 1985 and received clemency from then-President Bill Clinton in 1996.

Papa said that anyone without such a stiff sentence was perversely out of luck when it came to Obama’s clemency requirements.

“The only way marijuana people are gonna get a pardon is if they have a lengthy sentence, and most don’t,” Papa said. “Most marijuana cases don’t have 10 years — they don’t fit the criteria.”

These “criteria” are not binding. There’s nothing in any law preventing Obama from springing every federal drug offender in the country from lockup.

Cheri Sicard, a clemency advocate active with the Marijuana Lifers Project, said there’s also no official explanation from Washington, D.C. why certain offenders made the cut and others didn’t.

“The president can pardon anyone, at any time, for any reason,” Sicard said. “As far as I can tell, they just throw darts at a pile of petitions.”

You could make the argument that a decade or even five years in prison is long enough for a nonviolent marijuana offense, particularly if the “offense” is legal conduct.

In Seattle, owners of a pair of recreational cannabis dispensaries are putting their stores up for sale for a cool $50 million. If Matt Davies, the Northern California marijuana entrepreneur currently serving a five-year term for operating several medical cannabis dispensaries in Stockton and Sacramento, had pulled such a stunt prior to his indictment on federal drug charges, he might have been facing longer than a 10-year mandatory minimum.

As it is, faced with the choice of risking a decade behind bars at trial or taking a five-year plea deal, he took the plea—and as a result, may have to serve the majority of his sentence rather than enjoy early release.

Sacramento attorney Rex Halverson, one of Davies’s advocates, said his client’s case may have gotten lost in the shuffle of so many cases with longer sentences.

“I guess it just didn’t measure up to 240 months, 360 months—some of those guys have huge time behind bars,” Halverson said. “Everybody told him he had a one-in-quadrillion shot… we’ll just start the process again with the new president.”

An Uncertain Future

But incoming president Donald Trump has a long list of promises to fulfill, including wide-ranging immigration sweeps and building a physical barrier with Mexico.

As president, Trump has yet to offer even a shred of insight as to his plans for the country’s burgeoning marijuana industry or the people still in prison for cannabis crimes, but there’s reason for fear. His attorney general nominee, Jeff Sessions, made no indication that he’d relax federal Justice Department enforcement of marijuana during his recent Senate confirmation hearings.

Justice is also escaping certain marijuana prisoners serving time in state prison — but again, only if they took what now appears to be the wrong deal.

Under California’s Adult Use of Marijuana Act, nearly every marijuana-related felony was reduced in severity — in some cases, punishable now by a civil fine with no jail time. Anyone serving time on a marijuana conviction in state prison or county jail or on probation or parole is eligible to be released early or have their sentences reduced consistent with current marijuana law.

But Omar Figueroa, a Sonoma County, California-based attorney who specializes in marijuana defense, said if the prisoner took a plea or was convicted of “lesser,” non-drug related charges, they’re also not eligible for early release — a final insult.

“Most people prefer a conviction without marijuana in it,” he said, “but now they’re not eligible for re-sentencing.”

One of Figueroa’s clients, Nicholas Ojeda, took a deal for three years in prison rather than risk a conviction on charges that carried a 20-year mandatory minimum — he, too, was considered ineligible for clemency.

“Anytime someone is punished with prison for cannabis, it’s egregious… but [the pardon attorney] is only looking at the most egregious cases,” Figueroa said. “And sometimes, it’s not egregious enough.”

TELL US, Do you think President Trump will consider clemency for cannabis prisoners?