Criminal Law

Crim. Law Journal Winter/Spring 2014, Vol. 14, Issue 1

DISPARITY OF SENTENCING IN MARIJUANA CASES

By William S. Kroger

By now, anyone interested enough in the subject to read this article understands that a clear discrepancy exists between The Federal Laws and The California State Laws on the issue of marijuana. Under Federal Law, within the Controlled Substance Act, marijuana is a Schedule I narcotic and is illegal for all purposes, just like heroin, opium or cocaine. In 1996, California passed the Compassionate Use Act, permitting the use of medical marijuana for qualified patients. The complete ban of marijuana under Federal Law contradicts the exception created by the Compassionate Use Act created by California voters. Compounding this is the huge influx of medicinal marijuana patients and entrepreneurs that have formed thousands of store front dispensaries, indoor cultivation operations, delivery services, vending machines and other marijuana related businesses statewide. Some of these businesses act within the state laws, but most do not.

Because of the disparity, the general perception is that the federal government, by way of the DEA, could seek to stamp out marijuana in any form in California while the state has sent the message that it wants Uncle Sam to mind its own business. But this is not how medical marijuana has been policed over the last 10 years.

It is true that the DEA has raided dispensaries up and down the State of California. But the DEA has approximately 5,000 special agents. They cannot all be assigned to California. The ones that are, cannot all be assigned to marijuana and dispensaries. The DEA would be the first to admit that it lacks the agent manpower to actually raid and arrest enough locations to combat marijuana in California, medical or otherwise. Often, it has resorted to scare tactics such as threatening to seize property where dispensaries are located, sending mass letters to dispensary owners advising that an investigation is under way and issuing public statements about the impending raids and arrests that are just around the corner. Basically, when the DEA conducts a raid at a dispensary, they make some arrest, close it down and seize money and property. On some occasions harsh punishment ensues, but it does not happen very often.

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