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Why Should Medical Marijuana Providers Die in Prison? | The Nation

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Liliana Segura

Liliana Segura

 Dispatches on prisons, sentencing, civil rights, race and activism.

Why Should Medical Marijuana Providers Die in Prison?

When it premiered at South By Southwest last March, Code of the West was an eye-opening, at times gripping, chronicle of Montana’s battle over medical marijuana—and a window into the high-stakes standoff between states that legalize it and a federal government devoted to the War on Drugs. After a pro-legalization voter initiative passed with strong bipartisan support in 2004, tens of thousands of Montana residents obtained medical marijuana cards and dispensaries cropped up with little regulation. The proliferation of pot paraphernalia led to hysteria; activists like Cherrie Brady, co-founder of a group called Safe Communities, Safe Kids, warned that the drug was seeping into schools and creating a whole generation of drug addicts—a claim with no basis in reality. Even as efforts were made to build upon and improve the law, in 2011, Republican Speaker of the House Mike Milburn—urging his colleagues to take back Montana’s “culture” from “hippies” and Colombians alike—introduced a bill to repeal it completely, much to the dismay of patients and providers who had strived to comply with state law for years.

Director Rebecca Richman Cohen takes viewers into the Montana state capitol over the course of the 2011 legislative season, as activists on both sides of the issue make their case. She introduces us to women like Lori Burnam, a grandmother with terminal cancer who prefers marijuana to pills with punishing side effects, and who occupies the film’s moral center. But the dramatic turning point occurs when federal agents raid a growhouse operated by Montana Cannabis, one of the largest providers in the state, and the business at the heart of the film. The Drug Enforcement Administration carried out the raid on March 14, 2011, at the very moment state senators were voting against repealing the law. One of twenty-six conducted throughout the state, the film shows how the raid reinvigorated the repeal effort and sparked backlash at the same time, spreading fear among growers and sellers, and, ultimately, helping to dismantle the medical marijuana business in Montana.

But the story doesn’t end there. Mere months after Code of the West premiered, a number of its protagonists were indicted on federal drug charges. The film’s main character, affable pro-legalization lobbyist and former managing partner of Montana Cannabis, Tom Daubert, pled guilty and was given five years probation. Another partner, Chris Lindsay, struck a deal as well. But their former partner, Chris Williams, refused to plead guilty to conduct that his own state did not consider criminal. (When viewers first meet Williams, he is chatting cordially with state authorities touring his operation; he vows to show them around whenever they wish. Later, he acknowledges the contradiction. “Even now, the DEA could come kick our door in and arrest us all.”) The federal Controlled Substances Act prohibited Williams from invoking the legality of the state law at the time of the raid, so the fact that he was in compliance with Montana law has no bearing on his fate. Today, Williams, who has a teenage son, faces a mandatory minimum sentence of more than 80 years in prison.

More tragic still, 68-year-old Richard Flor, a Vietnam veteran who does not appear in the film, was given a five-year sentence and died in federal custody this past summer. “I wasn’t planning on being a martyr or ending my life in prison,” says Tom Daubert at the start of the film. But for Flor, this is exactly what happened.

Today, Rebecca Richman Cohen is working to update her film to tell these men’s stories. (Go here to donate to her Kickstarter campaign, which is in its final days.) “In the epilogue of the film, they’re in the process of plea-bargaining,” she says. But when she finished taping, “I had no idea that Chris would be facing a sentence of upwards of eighty years.” I spoke to Cohen over the phone about the film, the fate of the people it portrays, and the Obama administration’s policies on medical marijuana.

Liliana Segura: You have focused much of your recent attention on Chris Williams’s case. I understand that part of the reason his sentence is so harsh is that it involves mandatory minimums for guns—legal guns—he was keeping on the property at Montana Cannabis and that, had there not been marijuana involved, he would have been charged with no crime.

Rebecca Richman Cohen: That’s exactly right. The gun charges are four counts of possession of a firearm in furtherance of a drug trafficking offense. So, it’s not that he brandished them, it’s not that he threatened [agents]. It’s just that he owned guns. In fact, most Montanans own guns, that’s a pretty standard thing.

Prosecutors often use these threats of draconian mandatory minimums to force people to take pleas. You see almost none of those cases go to trial because rational people [fear] the charges against them. Chris was growing and selling medical marijuana. He had guns at the growhouse. So, in terms of those facts, he’s largely guilty of what he’s accused of. Most people wouldn’t want to test that in front of a jury. But Chris really wanted his day in court, and he wanted to expose the story of how unjust these prosecutorial tactics are.

In some ways Chris Williams’s case is incredibly unique. But in other ways his case is not unique. Because many other medical marijuana growers and many people caught up in the criminal justice system are facing charges that carry mandatory minimums. Chris’s case got national attention because he made—in my opinion—what is in some ways an irrational decision and, as a result, he may spend the rest of his life behind bars. Most people when faced with the threat of eighty-plus years in prison would take the plea. And so their stories wouldn’t be known.

Meanwhile, Tom Daubert, who figures so prominently in the film, got such minor time by comparison and was able to use the film in his own defense. Why was that?

Tom was given a plea deal; in exchange for pleading guilty and for testifying against Chris Williams during his trial, the US attorney only charged him with Conspiracy to Maintain a Drug Involved Premise, which carries no mandatory minimum. And at his sentencing, his lawyer was able to use the film as an exhibit to present a larger context of how Tom was operating. Had he gone to trial, Tom would not have been able present a defense that he was complying with Montana state law. But in the sentencing phase defendants are allowed to bring in a much broader array of evidence and testimony.

Did you know Richard Flor?

I didn’t know him personally. I’ve come to know his family since he passed away. Richard was based in Miles City in the far eastern part of the state. He was the first registered caregiver in Montana and he’d had some years of growing under his belt when they came together in 2009 to form the partnership that was Montana Cannabis. He ran a family business; his wife was sentenced to two years and his son was sentenced to five. His daughter, Kristin Flor, had nothing to do with the family business. But she’s become as become a real activist and has been traveling, speaking at events, and trying to raise awareness about what happened to her father. Right around the time of his death, it got some national media attention but not a lot. It really begs for a deeper investigation.

The film is very effective in portraying the irrational federal approach to medical marijuana and marijuana more broadly—particularly in the dramatic scene where Montana Cannabis is being raided, and particularly knowing that these raids have been ramped up by the Obama administration.

In Obama’s first term there were more federal raids on medical marijuana growers than there were during the entire eight years of Bush’s presidency.

What do you think accounts for that policy? And if it’s related, what do you think explains the timing of the raids in Montana?

It’s true that the raid was on the day that the Senate Judiciary Committee was voting on the repeal of the state’s medical marijuana law. But I don’t have any intuition that the raid was timed to the day, because if they really wanted to affect the vote they probably would have done it right before it, not during it. But I think there’s good reason to suspect that, at the very least, it was timed for the middle of the legislative session. I think it sent a very clear message to patients, to growers, and to legislators about the federal government’s enforcement policies.

I don’t know what accounts for Obama’s enforcement policy. It wouldn’t surprise me if there’s lots of different feelings within the administration. When the history about this gets written it will be fascinating—I think there are lots of things we don’t know right now. Even though there was a crackdown, which we documented, starting in 2011 recently there haven’t been a great deal of raids. In fact, the administration was silent on the votes in Massachusetts, Arkansas, Colorado and Washington leading up to the 2012 election. That wasn’t true two years prior in California. The administration was very vocal in its opposition to its 2010 legalization ballot initiative. So, I think it’s telling, public opinion has shifted. In Colorado marijuana got more votes than Barack Obama. So this really is just a different historical moment. There’s an opportunity for the administration now to step back and rethink its policies.

The Obama administration’s response to the votes in Colorado and Washington—the silence has been absolutely deafening. I think it’s surprising to many people that the only comment the administration has made is that the federal Controlled Substances Act is still in effect and we’ll say more later. We can hope that this is an opportunity to create a moment to explore some experiments in sensible drug policy.

What could states like Colorado and Washington learn from Montana’s experience. Does your film serve as a cautionary tale?

I think it’s definitely a cautionary tale. I think first and foremost, one of the lessons learned from the film is that it was the visibility of marijuana that motivated Cherrie Brady and the opposition to try to repeal the law. The law was passed in 2004 and it wasn’t until 2009 or 2010 that she really started mobilizing. Regulatory measures as simple as zoning could avoid a lot of the pitfalls that we saw in Montana. And the states that are continuing to legalize and to create sensible regulations aren’t running into those problems. There weren’t nationwide raids, there were raids in the states that had loose regulations. And so I think Massachusetts and Colorado and Washington are well poised to think through these lessons learned.

How did you come to this issue and how did you come to focus on Montana specifically?

I went to law school and I teach courses on law and film. When I was in law school, I worked at a public defender’s office. I interned at the Bronx Defenders and I sat in arraignments day in and day out, and I saw people arrested for nonviolent drug crime whose lives were really badly affected—sometimes destroyed—by these charges. It just seemed absolutely senseless. So, that was my original interest in drug policy issues. But I also came to medical marijuana issues very skeptically. My only exposure to it was walking down Venice Beach and seeing all the doctors’ shops and head shops there and thinking very cynically about it.

For the purpose of the film, we knew there was going to be a big showdown in Montana and we knew that the state legislature only meets every two years for ninety days and then goes home. So one way or another they’d pass some law. But also, of all the medical marijuana states, Montana had, I think, one of the most problematic laws. There was almost no regulation in place and, in particular, the weakest part of the law was that there were no zoning regulations in place for most of the state. Some cities, like Bozeman, did create zoning ordinances, but most of the cities and towns didn’t. So in places like Billings, you had medical marijuana dispensaries opening up kitty-corner from schools. And it infuriated people.

At the start of the film, we see Cherrie Brady, the lead opponent, who is very religious, driving through Helena, and what she seems most disgusted by is the “culture” of marijuana. And that disgust—and the fearmongering claims about the effect on children—in many ways overtakes the actual problems at the heart of the law.

That’s right. Cherrie Brady’s platform was that they were going to lose an entire generation of children to drugs under “the guise” of medical marijuana. And lo and behold, when you look at the federal government’s own survey, a survey designed by the Centers for Disease Control and by the Montana Superintendant of Schools—two institutions that have no stake in promoting medical marijuana—you actually see that there was a substantial decrease in the number of children who were using marijuana since the law was passed. The legalization of medical marijuana wasn’t causing teen use. There wasn’t even a correlation between the two.

One of the things that would probably be most eye-opening for viewers who may be, as you were, a bit cynical about the medical marijuana movement is when you see patients describe how medical marijuana has helped ease their pain in a way other drugs cannot. I am curious about the fate of Lori Burnam, who had to go back to using the meds she hated.

Lori Burnam is doing pretty well. Her doctor, almost three years ago, gave her six months to live. She’s really become an outspoken advocate. She’s down to 65 pounds. But she’s doing okay. She’s still going.

How are you using the film as an advocacy tool?

We’ve partnered with drug policy reform organizations across the country. Law Enforcement Against Prohibition has helped us organize speakers at some of the festival screenings we’ve done. The ACLU of Montana organized a grassroots screening tour across the entire state. We’re working with Americans for Safe Access and Drug Policy Alliance. And NORML has been very supportive as well.

You are hoping to raise money to update the film. What would an updated version of Code of the West look like?

We really want to update at the very least the end of the film. Most important we want to make sure we include Richard Flor’s tragic death and Chris Williams’ trial. Chris is not a central character in the cut as it exists and we want to flesh out his stakes and his personality.

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