—22— O’Shaughnessy’s • Spring 2005 Activists’ Cases Riding on Raich and Booker By Ann Harrison The U.S. Supreme Court decision in Ashcroft v. Raich will have far-ranging consequences for medical cannabis pa- tients, caregivers, growers and dispen- sary operators fighting federal marijuana charges. Directly at stake are the homes, the businesses and the freedom of at least 30 defendants. Their cases were put on hold following a December 2003 ruling by the 9th U.S. Circuit Court of Appeals entitling Diane Monson and Angel Raich and her caregivers to use and cultivate marijuana under California law. The 9th Circuit injunction —which the Bush Administration challenged in Bryan Epis with daughter Ashley (above) after his release from month sentence before being allowed out on bail. While Epis was the U.S. Supreme Court— applies in the federal penitentiary at Lompoc in August 2004, pending the incarcerated, supporters publicized his plight on billboards in Cali- eight western states that have medical outcome of the Raich case. Epis had served 30 months of a 53- fornia. marijuana laws. The injunction has had an indirect The Blakely and Booker decisions sated for ninety-five percent of his grow, nabis Buyers Club. The three cases have effect, too, according to Attorney Omar could change the lives of 64,000 people and did not receive payment for the re- been bundled together as a single case, Figueroa, who says he is seeing differ- sentenced in federal court each year. maining five percent. All of the medical but they have different implications for ent enforcement practices in federal Ninety-seven percent of federal defen- cannabis that he grew was used inside the dispensaries involved. court districts in California. In the North- dants plead guilty to avoid a jury trial the state of California, says Epis. But the The Marin Alliance For Medical ern District, from Santa Cruz to the Or- that could result in longer sentences. As jury in his case was not allowed to hear Marijuana in Fairfax was slapped with a egon border, says Figueroa, federal pros- a result, federal prosecutors often deter- that he was growing for patients. federal injunction in 1998 prohibiting ecutors appear to be taking a wait-and- mined the length of the sentence which “If they restated the sentence under founder Lynnette Shaw from distribut- see approach, holding off on new medi- judges were bound by the guidelines to the current set of facts with new guide- ing marijuana. The injunction arose from cal marijuana prosecutions until Raich follow. lines, we can go to trial and win,” said a civil lawsuit in which the government is decided. Epis. “The 9th Circuit can drop the con- sued six medical marijuana dispensaries, But in the Eastern District, from Yolo The Booker decision could spiracy charge to grow 1,000 plants, and three of which have since closed. County east to Nevada, which includes have a significant impact on I could get nine months at most with a Shaw disputed the government’s Sacramento, Figueroa says the attitude drug treatment program.” claim that it had jurisdiction over her dis- is, “if you grow any marijuana we will medical cannabis cases be- According to Epis, the U.S. Sentenc- pensary based on the Interstate Com- arrest you and we’ll see what happens cause judges can give reduced ing guidelines before the Booker deci- merce Clause. She ignored the injunc- with the Raich case. If the Supreme sentences to people who are sion prevented him from receiving a tion and continued to defiantly distrib- Court puts a stop on it fine, but we’ll “safety-valve” exception to the manda- ute medical cannabis. “We have noth- still prosecute.” clearly patients. tory minimum sentences. Now the jury, ing to do with interstate commerce,” says Recent sentencing decisions from the not the judge, decides what kind of sen- Shaw. “Our business reduces interstate Supreme Court could also impact many It is unclear how judges will use their tencing enhancements apply to his case. commerce be- of the federal cases awaiting the Raich expanded discretion to make sentencing “Even if Raich loses,” says Epis, “Un- cause we use decision. The Supreme Court’s decision decisions. Medical marijuana defendants der Booker, the jury has to find beyond locally grown last June in Blakely v Washington held may reap the benefit of judges’ recog- reasonable doubt that I forced these medical mari- that federal sentencing guidelines vio- nizing their status as patients and people to let me grow for them.” juana for local lated a defendant’s right to a jury trial. caregivers. But most legal scholars pre- patients and The court ruled that juries, not judges, dict that judges will not make dramatic Keith Alden reduce de- should weigh the facts that could in- departures from the guidelines. Keith Alden could also be sent back mand for the crease a defendant’s prison sentence un- Defense specialist Laurence Lichter to prison if the Raich injunction gets commercial Lynnette Shaw testify- der federal guidelines. The decision expects the lasting impact of the deci- overturned. Alden, who lives in Windsor market.” ing at the Institute of struck down a state sentencing system sion in the Raich case will be limited to in Sonoma County, is fighting three con- Shaw says Medicine hearing in that gave judges too much power in sen- non-commercial medical marijuana victions including a 2002 conviction for her dispensary Irvine, April, 1998 tencing. transactions. “Most of our clients don’t cultivating 755 marijuana plants for sev- is supported by the town, the county and The justices have confirmed this logic do it for free,” Lichter observes, “and eral medical cannabis dispensaries. He the local DA. But if the government wins in the U.S. v Booker decision and the U.S. the feds can draw a line between people served 20 months of his 44-month fed- the Raich case, the dispensary has a sud- v Fanfan decision, which found that fed- who do it for free and those who don’t.” eral sentence before being released in den death provision in their agreement eral defendants were also entitled to jury Several defendants whose cases April 2004. His sentence is currently on with Fairfax. This allows the town to judgments. Justice Stephen Breyer wrote straddle the line between commercial appeal in front of the 9th Circuit pend- immediately close the dispensary due to that the federal sentencing system was and non-commercial have been released ing the outcome of Raich. an indemnity clause in the permit that broken because it forced judges to be from prison pending the outcome of the “The only thing that the government removes them from liability. “They can driven by sentencing guidelines. The Raich case. Others hope the Raich rul- could argue in my appeal is that I was at and will yank the permit and close the justices retained the guidelines for judges ing will uphold their states-rights argu- a distribution level,” said Alden. “I was club immediately which would be a to use as voluntary advisories. ments and help shield them from having only convicted of cultivation, the jury medical disaster,” says Shaw who notes Blakely found that power should be to attend a federal sentencing hearing. would not find any number of plants.” that the dispensary serves 900 patients a shifted from judges to juries; Booker The roster of individuals currently in Alden says the Raich case helped fo- month and has registered over 2,700 granted judges more power to act out- limbo reads like a Who’s Who of activ- cus public attention on cases like his. But members. side the compulsary guidelines. ists who made Prop 215 a reality. he says supporters of the Raich case Shaw says she has an emergency con- should now focus their attention on sup- tingency plan, but she would not be able Bryan Epis porting defendants appearing in local to distribute medical marijuana for the A government victory in Raich could courts to fight federal marijuana charges. rest of her life. send back to prison two California medi- “The attorneys are all done now, but we “If they decide that the drug war is cal cannabis growers, Bryan Epis and the people are not done and we will al- more important than state’s rights and Keith Alden, who were released pend- ways maintain the right to petition and close the clubs, it will be a human disas- ing the Supreme Court ruling. Bryan be heard and now is our time to step up,” ter that will empower the gangsters, the Epis was sprung from his 10-year man- said Alden. “We the people will put the thieves and the illegal drug market which datory federal drug sentence in August. pressure on, there is very little that the is guaranteed employment for the narcs,” He had been arrested in June 1997 for attorneys can do.” says Shaw. “They are all for it.” growing medical cannabis for four medi- cal marijuana patients in Chico. It took Marin Alliance Oakland CBC the government five years to convict For Medical Marijuana The Oakland Cannabis Buyers’ Co- NINTH CIRCUIT’S JURISDICTION him. Epis has completed 30 months of The decision in the Raich case will operative has the longest and most extends to eight states that have legal- his 53-month sentence. also affect three California medical can- tangled legal history of any dispensary ized cannabis for medical use —Alaska, nabis dispensaries with cases in the 9th in the nation —and is the only one to Hawaii, Washington, Oregon, Califor- If the Supreme Court finds in favor nia, Montana, Arizona, and Nevada— of Raich, Epis says he will get a new Circuit: the Oakland Cannabis Buyers’ have taken its case to the Supreme Court.