Little Hope For Marijuana Sentencing Reform Any Time Soon

A 77-year-old Missouri man will serve a decade in prison, despite the presiding judge’s wishes, due to mandatory minimum sentencing on a marijuana cultivation charge.

In 2012, Polk County detectives came up empty in a search for an address linked to credit card fraud. They made their way onto the property of the next closest address, the home of Charles Frederick White. White approached them with a headlamp and the cops knew they smelt pot growing behind him. Not long after, they came back with a search warrant. The ensuing raid netted over 1,700 indoor marijuana plants.

Last week, White stepped into a courtroom to receive his sentence for his third marijuana cultivation offense and the biggest of the three by a significant margin. Judge Douglas Harpool could have sent White away for life on his third strike, but things quickly went in the opposite direction, as much as they could.

“This is not a sentence I feel particularly good about,” Harpool said, after explaining his hands were tied.

Even if he didn’t think the punishment fit the crime, he was mandated by federal mandatory minimum sentencing laws to give White a decade behind bars.

While this may look like a case of wrong-place wrong-time for White, his attorney argued it was far more calculated. He believed White had been a target of law enforcement dating back to a run-in with police outside a hydroponic store where they saw White loading up cultivation gear into his truck. Law enforcement claimed their record bust was just luck and that they didn’t open a gate with a no-trespassing sign and illegally enter the property.

Despite the major progress cannabis policy has seen in the last decade, sentencing reform just hasn’t entered the public conversation the way things like legalization, CBD, or even Cookies have. We reached out to the experts to get their take on what might make the general public more aware and find out how stalled progress is in a Department of Justice run by Jeff Sessions.

“There is an active marijuana caucus in Congress and they introduce numerous bills to scale back or remove sentencing rules. You see a number of different takes on it,” said Molly Gill, Vice President of Policy at Families Against Mandatory Minimums.

Gill noted the most common approach reform legislation takes is to block Jeff Sessions, unless certain parameters are met in a case. Other efforts include attempts to reschedule marijuana and full federal decriminalization bills. “The truth is none of these really go anywhere,” said Gill. She then noted on Rep. Maxine Waters’ bill — which she introduces every congressional session —would end the federal guidelines, but it’s been in the same failing boat as the other efforts.

A bill by Congressmen Bobby Scott and Thomas Massie titled the Justice Safety Valve Act would have played directly into Judge Harpool’s favor in sentencing White. According to Gill,  that bill would allow judges to avoid the mandatory minimum whenever they feel it is appropriate. “If the Justice Safety Valve Act passed, Judge Harpool wouldn’t have had to give that ten-year sentence,” Gill said. “He could’ve given two years, he could’ve given five years or probation for that matter. Whatever he thought was appropriate”

Senator Chuck Grassley announced last week he plans to reintroduce the Sentencing Reform in Corrections Act. Gill says that Grassley’s comprehensive bill would impact people getting mandatory minimums for marijuana and reform prisons because it would allow “quite a few” marijuana offenders to get time credit for doing programs. The bill stalled with over twenty sponsors last Congress due to election-year politics.

“The bills are very complicated, they’re not perfect. They don’t go far enough in our opinion, though they do some good things,” said Gill.

“Since the Trump administration began, I think the real question now is anything going to even be possible,” said Gill. “There’s a lot of work that’s going to have to be done to move this administration.”

Gill noted that in some ways White got lucky for not getting the life sentence that could have come with his third strike. “That says something right there, the fact he didn’t even get the harshest punishment possible under the current federal law,” said Gill. “Life without parole for 1,700 plants is insane. Ten years for 1,700 marijuana plants for a 77 year-old-man who seems to pose very little public safety threat — that shows how extreme and outdated these sentencing laws are.”

Former Pennsylvania prosecutor Patrick Nightingale has experienced mandatory minimums from both sides of the law. After six years at the Allegheny County District Attorney’s Office where he helped start the Domestic Violence Unit, Nightingale went into private practice in Pittsburgh as a defense attorney. He spoke with us on behalf of the Law Enforcement Action Partnership, which has been pushing for sentencing reform since its founding in 2002.

We asked Nightingale, who also serves as Executive Director of Pittsburgh NORML, when he believes sentencing issues will be addressed in the fast-moving world of pot policy.

“My concern is right now the attitude at the Department of Justice seems to be contrary to criminal justice reform,” said Nightingale. “Attorney General Sessions has made it clear he thinks federal sentencing is actually too lenient, as opposed to being far too draconian, which is the position of LEAP.”

Nightingale said it was rather dismaying to hear the Attorney General suggest somehow the federal sentencing guidelines and the federal mandatory minimum sentencing provisions are inadequate “for this failed war on drugs.” Nightingale believes Sessions is attempting to turn the clock back to the 1980s when we were “rushing forward with mandatory minimum sentences, completely ignorant of the devastating effects these sentences have.”

Nightingale concurred with Harpool saying that a judge’s hands are tied in White’s predicament because “once the indictment is filed with those quantities, there is nothing a judge can do,” he said.

Nightingale says the current sentencing structure puts all the power in the hands of the prosecutor and not the judge. “It isn’t fair, and it results in now another man being locked in a cage for a decade over a plant that’s legal in eight states for recreational use and 29 for medical.”

According to Nightingale, activists like himself must continue to show the public in general that these types of sentences for nonviolent drug offenses have absolutely no impact whatsoever on public safety or drug prevalence and use.

“All that we’re doing is continuing to contribute to the world’s highest rate of incarceration without taking a look at whether or not we’re having any success,” he said.

Morgan Fox of the Marijuana Policy Project said it is really tough to tell when sentencing reform will catch up to marijuana policy reform.

“For a time it seemed like the former was actually leading the latter and progressing much faster. Politicians who would not go so far as to support legalization were more than willing to talk about, even champion, criminal justice issues like reducing sentencing and incarceration,” said Fox.

Fox believes given that the current administration seems fine with rolling back criminal justice reforms in this area and reinstating mandatory minimums that been decreased or eliminated recently, he’s not optimistic that reform will happen soon.

“I’m worried that people who are perhaps only slightly violating laws in legal or medical states will be subject to particularly draconian sentences since the old prohibition laws often apply outside of the narrow allowances of the new laws, and in many cases would trigger a mandatory minimum sentence depending on the state or whether federal law enforcement was involved,” said Fox.

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