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George Ochenski: Judge Christensen Brings Sanity To Marijuana Sentencing


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Judge Christensen brings sanity to marijuana sentencing


September 10, 2012 8:01 am • By George Ochenski


The courtroom was packed with family, friends and supporters of Tom Daubert last Thursday to witness what sentence Federal District Court Judge Dana Christensen would hand down to the leading figure in Montana’s successful initiative to legalize medical marijuana. After almost two hours of agonizing tension, and much to his credit as an intelligent and fair man, Christensen rejected the contentions of federal prosecutors that Daubert should go to prison for six to eight years as the leader of a criminal conspiracy and sentenced him to five years on probation and a $50,000 fine instead.


The story behind that final act is long, sad, and reflects the tangled quandary of laws that differ radically at the state and federal level. As most Montanans know, in 2004 our votes passed Initiative 148 to legalize medical marijuana by a 62 percent majority – receiving more votes than any issue or candidate that year. Daubert, a veteran lobbyist and seasoned public speaker, helped write the ballot measure as well as organize the significant effort required to place the initiative on the ballot. As lead spokesman for the measure, he was in the media almost weekly doing interviews, writing columns and giving speeches.




While few can claim to have successfully led such an effort, Daubert’s high profile also brought him squarely into the sights of federal drug enforcement agents since, despite being legalized for medical purposes in 17 states, marijuana remains an illegal Class I narcotic under federal law.


The federal focus on Montana’s medical marijuana community climaxed in a series of raids on facilities and individuals, known as “caregivers,” that grew and distributed the marijuana to patients holding state-issued cards allowing them to legally purchase the substance for medicinal purposes. Daubert, as a former partner in a caregiver business known as the Montana Cannabis Association, was swept up in the raids, indicted, and harshly prosecuted.


Complicating the issue, however, were a number of ancillary activities both by Daubert and others involved in the industry. First and foremost in stoking the controversy was a very high-profile move by some caregivers to hold rolling sessions statewide to sign people up for the state’s medical marijuana cards. Some of these sessions included extremely short video sessions with doctors who then issued prescriptions without ever actually examining the patients.




Coupled with brazen displays of smoking a large bong in front of the Capitol, prominent advertising, and store-front “dispensaries” as the number of cardholders grew to 30,000 Montanans, these efforts sparked a backlash against the Medical Marijuana Act.


But Daubert was not a party to those brazen displays. In fact, he was a staunch critic of those who sought to squeeze through the loopholes in the initiative and worked tirelessly to reform the act so those who needed the drug for a variety of medical conditions could continue to receive it. Daubert routinely took local, state and federal law enforcement officials for tours of the operation’s Helena greenhouse, as well as legislators, reporters and others involved in trying to make the law work and prevent the abuses that eventually led to legislative efforts to repeal the entire law.


That’s not the way federal prosecutors saw it, however. To them, Daubert was part of a “conspiracy” to violate federal law and they went after him hammer and tong. Although Daubert had dissociated himself from the grow operation months before the busts, he was charged with being a “leader” in the “conspiracy” and faced up to 20 years in prison as well as hundreds of thousands of dollars in fines and forfeitures.




But on Thursday, Christensen brought reason, honor, and compassion to the courtroom as, in his quiet voice, he patiently laid out the charges and the unique circumstances of both Daubert’s case and Montana’s law. Part of his incredibly well-researched rejection of the harsh federal penalties grew from the 72 letters submitted by a former congressman, numerous legislators, state officials and a wide spectrum of professional associates and friends testifying to Daubert’s intelligence and character – as well as his life-long respect for the law. Prison, Christensen ruled, was simply not the sentence Daubert deserved.


Plenty of politicians this campaign season claim to be “fighting for Montanans.” But last week Christensen showed us all what that actually means. By rejecting the Draconian federal recommendations Christensen saved taxpayers tens of thousands of dollars a year in incarceration costs, stood with a well-respected fellow Montanan, and brought much-needed sanity to federal drug sentencing.


George Ochenski writes a column for the Missoulian’s Monday Opinion page. He can be reached by email at oped@missoulian.com.

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