The Colorado sun was baking hot. The ground was still muddy from thunderstorms that flooded Four Mile Canyon the night before. Clumps of dirt and dung exploded into clouds of dust as I stroked the horse’s flank with a stiff metal brush. Glittering dung-dust settled on my face and arms as one word kept rolling around in my head:
Locked away in a cold, cramped cage, Luke Scarmazzo is serving over twenty years in federal prison for operating a medical marijuana dispensary in compliance with California law.
That law, the Compassionate Use Act of 1996 (also known as Proposition 215) allows patients with a valid doctor’s recommendation, as well as their primary caregivers, to possess and grow marijuana for personal medical use.
Subsequent bills further clarified the intent of its authors—specifically, to allow patients to associate collectively to cultivate marijuana, as well as to provide state ID cards for patients and caregivers.
Prop 215 passed with 55.6 percent of the vote—it was the will of the people of California that patients be allowed to use marijuana to ease their suffering.
But the will of the people has long since been subverted by over-zealous officials with their own agendas, people like former L.A. District Attorney Steve Cooley, who has insisted since 2009 that the Compassionate Use Act means no money can change hands for medical marijuana. In Cooley’s book, all medical marijuana sales are illegal—as in, felonies.
All he has to do is send an undercover cop with a fake ID and a legitimate doctor’s recommendation to make a few purchases at a medical marijuana dispensary and voila! He’s caught himself a kingpin. (Listing the same “crime”–selling marijuana–over and over during the length of an investigation lets police astronomically increase the bail bond amount and pile on felonies, including conspiracy charges, setting up dispensary owners as “kingpins.”)
In court, the prosecutor—for the People—determines the charges, some of which come with automatic mandatory minimum sentences. “Mandatory minimums” were enacted by Congress in 1986 during the Reagan/Bush administration. Part of a bi-partisan effort to get tough on drugs after up-and-coming Celtics basketball star Len Bias died of a cocaine overdose, mandatory minimum sentencing was intended to stop international drug cartels from trafficking.
The idea that some street-level dealer serving a long prison sentence would deter his criminal “kingpin” employer would be laughable if so many law abiding growers and dispensary owners weren’t getting caught in the dragnet. But beyond the fact that this policy was based on magical thinking, by taking sentencing control away from judges and giving it to prosecutors, it also stopped judges from judging. Thanks to mandatory minimums, a judge no longer gets to decide whether the punishment fits the crime.
“Fuck the Feds”
and organizations that participate in the unlawful manufacturing,
distribution and marketing activity involving marijuana,
even if such activities are permitted under state law.” ~United States Attorney John Walsh, May 2, 2011
In Stanislaus County, Luke Scarmazzo and Richard (Ricardo) Montes were medical marijuana patients who decided to open a dispensary in the central valley because they, like many local patients, had to travel over a hundred miles to get their meds. And because it looked like a damn good way to make a living. In 2004, after complying with state regulations, they opened the California Healthcare Collective (CHC). Their first day of operation earned them a headline in the local newspaper: “Pot Dispensary in Modesto.”
“When I arrived at work the next morning, there was a line of people waiting at the door,” wrote Scarmazzo in a letter originally published in Prison Outreach Press. “The line was so long it looked as if a blockbuster movie was premiering inside our building.”
Instant success inspired them to intensify their efforts to comply with the law. Security personnel examined patients’ state ID cards. CHC contacted doctors’ offices to verify every recommendation. They hired an attorney and paid taxes, despite the attorney’s legal interpretation that cannabis as medicine ought to be exempt from taxation. “We thought we had appeased everyone,” he wrote.
The Modesto Police Department and City Council thought differently. They began taking steps to ban dispensaries within city limits. Scarmazzo and Montes hired a land-use attorney and attended a series of meetings with the city council. “On each occasion, the outpouring of community support was overwhelming,” wrote Scarmazzo. “The council sensed that they were fighting a losing battle and finally, after months of litigation, conceded. We were exhilarated.”
Their triumph was short-lived. Twenty-four hours before their final meeting with the city council, in the pre-dawn hours, the Federal Drug Enforcement Agency (DEA) sent in storm troopers. At gun-point, they raided and arrested Luke, Richard, and all the employees of California Healthcare Collective. Federal prosecutor Kathleen Servatius charged the two men with conducting a continuing criminal enterprise—a “kingpin” charge originally intended for crack-cocaine drug-lords and international cartels–and which carries a mandatory prison sentence of twenty years to life.
“We were unnerved by [the prospect of] such an intimidating sentence, but I knew we had followed the letter of California law completely and committed no crime,” wrote Scarmazzo. With that in mind, he and Montes turned down a ten-year plea deal and chose instead to put their fate in the hands of a jury.
Business Man by Kraz
During the trial, the Court did not permit them to present the defense that they ran a state-approved dispensary. By order of the judge, Scarmazzo and Montes couldn’t so much as whisper the words medical marijuana or state law. Their attorneys pleaded with the judge and prosecutor to allow them to tell their side of the story, to no avail. Despite the defendants’ sworn oath to tell the whole truth, they were systematically denied that right by the judge himself.
The prosecutor, on the other hand, was permitted during her closing arguments to play a music video entitled “Business Man.” The YouTube video depicts Luke, performing as hip-hop artist Kraz, rapping about marijuana, cash, weapons and women. The catchy refrain, “Fuck the Feds!,” did not help his cause. In fact, a case could be made that Luke is doing time for making bad art–within a month of the release of his rap album, he was indicted by the feds.
Responding to Luke’s assertion that he was being sent to federal prison over a rap video in violation of his 1st Amendment right to free speech, prosecutor Servatius wrapped up her argument, saying, “We don’t prosecute people because they sing songs. We prosecute people because they sold marijuana in violation of federal law.”
“The decision to take this case to trial was political,” stated federal Judge Oliver W. Wanger. “Not on the part of the government, but on the part of Mr. Scarmazzo.”
Amendment Up in Smoke
and star of “Saint Misbehavin”
Back in the early Eighties, when I read The Trials of Lenny Bruce by Ronald Collins and David Skover, I came away with a single conclusion: Once you start talking about legal cases, it’s just not funny any more. Not that I’m trying to be funny. The point is, we need to delve into some seriously unfunny legal matters if we are to understand–and more importantly, reverse–a dangerous trend in our system of justice, which is to say, a trend toward gross injustice.
Strands of this malevolent web stretch back to the early Seventies and President Richard M. Nixon. Nixon spawned the “War on Drugs,” which was really a war on anti-war protesters, liberals and anyone else who got in his way. “You see,” he said to White House Chief of Staff H. R. “Bob” Haldeman on an Oval Office tape (May 13, 1971), “homosexuality, dope, immorality in general: These are the enemies of strong societies. That’s why the Communists and the left-wingers are pushing the stuff. They’re trying to destroy us.”[For more information on Nixon’s War on Drugs, read Johnston’s War Without End.]
The Controlled Substances Act (CSA), which Nixon signed into law on October 27, 1970, created five “schedules” for regulating drugs based on medicinal value and potential for addiction. Marijuana was listed as a Schedule I drug with no medicinal benefit and a high potential for abuse. The following year, Nixon created the National Commission on Marijuana and Drug Abuse, known as the Shafer Commission, after “law and order” Governor Raymond P. Shafer of Pennsylvania, whom Nixon personally appointed to head it up.
In a surprise move, the Shafer Commission, after conducting the most comprehensive study of marijuana in American history, wound up recommending that possession and non-profit transfer of marijuana be decriminalized, stating, in part, that the actual and potential harm from using marijuana “is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.” President Nixon did not share that reluctance. His reaction was to declare “all out war, on all fronts” against marijuana.
In 1973, having declared drug abuse Public Enemy #1, President Nixon established the Drug Enforcement Agency. The DEA currently has a presence in virtually every country in the world, although increasing numbers of governments and the United Nations have begun to question the efficacy of the so-called War on Drugs.
More Things Change, the More They Stay the Same
And his bony reach from the grave seems to have President Obama by the throat, because in 2011 Obama said he was not planning to end the war on drugs any time soon.
Despite Obama’s 2008 campaign promise to lighten up on marijuana prosecutions, and Deputy Attorney General David Ogden’s 2009 memo (referred to as the “Ogden Memo”) to U.S. Attorneys instructing them not to focus federal resources on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana,” federal attorneys in the Obama administration have taken a disturbingly hard-line position.
Indeed, President Obama has put more medical marijuana patients in prison than any other president in history. “Far surpassing his predecessor George W. Bush, President Obama has conducted more than 200 SWAT-style raids on state-compliant medical marijuana businesses and has indicted more than 80 people since he took office,” stated Kris Hermes, spokesperson for Americans for Safe Access, on January 4, 2013. “The number of sick patients being locked up by the Obama Administration is unprecedented and deplorable.”
In a worst-case example, Montana’s first registered caregiver Richard Flor died in federal custody at a private prison facility in Las Vegas, Nevada on August 30, 2012. After suffering two heart attacks and organ failure, Flor was placed on life support while still shackled to his bed, according to his lawyer. His friend Montana marijuana patient advocate Tom Daubert wrote in West Coast Leaf, “Twenty minutes after Flor died, federal marshals unlocked the shackles on his ankles, placed there despite the fact that Flor had long before lost the ability even to walk.”
On September 25, 2012, according to California NORML, “federal authorities took legal action against 71 medical marijuana dispensaries in Los Angeles County, including all known collectives in downtown and Eagle Rock as part of an ongoing campaign to crack down on medical marijuana.” The same thing is going on all over the state, but lest this blog become a litany of federal travesty, California NORML keeps a running account of “notable examples” at CANORML.org.
In one such case, on September 27, 2012, “150 agents from US Homeland Security (!), FBI, DEA, CHP and Sonoma sheriff’s deputies wearing military garb and accompanied by an armored military vehicle stormed from house to house, pulling up backyard gardens, in an impoverished section of Santa Rosa.”
Americans for Safe Access also keeps track of medical marijuana raids, arrests and incarcerations. ASA spokesperson Kris Hermes didn’t mince words when he stated, “The Obama Administration is lying to the American people when it says it’s not targeting individual patients….”
In addition to mass arrests of patients and providers, the federal government has sent letters to landlords who rent to medical cannabis collectives, threatening them with asset forfeiture and criminal charges. In states like Washington, Rhode Island, Arizona and Hawaii, U. S. attorneys have threatened local elected officials with criminal prosecution should they try to regulate medical marijuana dispensaries.
At least one dispensary owner in California, on top of being arrested for marijuana possession and distribution, was later hit with federal money laundering charges. And the largest dispensary in the state, if not the world, Harborside Health Center in Oakland, was slammed with $2.4 million dollars in back taxes, in effect, putting them out of business.
California NORML Director Dale Gieringer, Ph.D., says, “The DOJ’s real agenda is to try to destroy the most successful leaders in the medical cannabis industry because they prove that lawful access to cannabis works, contrary to the government’s bankrupt policy of prohibition.”
On July 8, 2011, the United States Court of Appeals for the District of Columbia Circuit denied a nine-year-old request by the Coalition for Rescheduling Cannabis to have marijuana removed from Schedule I of the Controlled Substances Act (CSA) and rescheduled as cannabis in Schedule III, IV or V.
However, in the wording of the Ogden Memo, quoted earlier, by acknowledging existing state laws on medical marijuana, the federal government has tacitly admitted marijuana does have a medical use. That alone would seem to be grounds for rescheduling. But at least, by coming down with a ruling, the Court opened the way for Americans for Safe Access to appeal the decision. Finally, lawyers were able to present the federal government with scientific evidence of marijuana’s medicinal benefits. On October 16, 2012, oral arguments were heard in the case Americans for Safe Access v. the Drug Enforcement Agency (DEA).
Disregarding numerous scientific studies that have shown marijuana’s medical efficacy, the D.C. Circuit Court of Appeals denied the petition on January 28, 2013, “deferring to the [DEA’s] interpretation of these regulations [of the Controlled Substances Act],” maintaining marijuana’s status as a Schedule I drug.
And I must be crazy to keep flying.
But if I ask to be grounded, that means I’m not crazy anymore,
and I have to keep flying.~ Yossarian, Catch-22 by Joseph Heller
Commenting on the Appeals Court decision, California NORML Director Dale Gieringer, Ph.D. stated, “In its reply, the DEA claimed that it would only accept large-scale, controlled FDA trials. In a Catch-22, however, the DEA has deliberately blocked such trials by refusing to approve the licensing of a private production facility to supply marijuana for medical research and development at the University of Massachusetts. The only existing legal source for research marijuana in the country is the National Institute for Drug Abuse, which recently blocked a request to study marijuana for treatment of PTSD and has said that it has no intention of developing its marijuana for medical use.” [Italics added for emphasis.]
The D.C. Circuit Court of Appeals decision of January 28, 2013 also rejected the recommendation of DEA administrative law judge Mary Ellen Bittner, ruling in support of Professor Lyle Craker’s application to the DEA to grow marijuana, concluding that it is in the public’s interest for Craker to be permitted to grow marijuana for use in research into the plant’s medical benefits.”
Meanwhile, Back in the Gulag
Convict-writer Dannie Martin described Lompoc Penitentiary as a “caldron of fear, hatred and violence” in an article for The San Francisco Chronicle in the late ‘eighties, accusing the warden of creating riot conditions. Today, with the occasional report of gang violence, prison riots and random stabbings leaking into the news, USP Lompoc is an overcrowded hellhole. There you will find Federal Inmate Number 63131-097—the husband, father, son, businessman and artist formerly known as Luke Scarmazzo.
Because he was given a mandatory minimum sentence of twenty-one years and eight months for his involvement in a “continuing criminal enterprise,” he was classified as a maximum-security inmate. “I have been condemned to wander this desert of solitude until I am a gray, old man,” wrote Luke. “I will never give up hope that one day I will feel the warm sunshine upon my face, smell the sweet fragrance of freedom and hear Jasmine’s voice softly whisper, ‘Welcome home, Daddy.’”
Meanwhile, back at the ranch, horses were being groomed in the Colorado sunshine for a surprise father-daughter horseback entrance at my cousin’s wedding. Flower girls laughed and talked while making bouquets of long-stemmed red roses at a picnic table in the shade of an olive tree.
As I brushed tangles out of a horse’s mane, I thought about Luke Scarmazzo’s little girls, growing up without their father. I know from experience what it’s like when Daddy goes away. The reason doesn’t matter. Only the absence does.
Luke Scarmazzo is one of a burgeoning number of incarcerated Americans, snatched from their families in the dark of night. The day he was arrested also happened to be his daughter Jasmine’s fourth birthday. She and her mother, DeVina, were waiting for him at a hotel in Disneyland. He was scheduled to catch the noon flight to Los Angeles after meeting with the city council. “I never made that flight and I never showed up for her birthday party.”
Instead of celebrating his daughter’s birthday with Mickey Mouse, Luke Scarmazzo was surrounded by men in black military fatigues, storming his home with machine guns, “ripping me out of bed at barrel-point.”
When the trial was over and the jury found out how much time he and Richard Montes were going to serve, several jurors begged the judge to dismiss the verdict. The judge was unmoved. Or maybe he was just immobilized by mandatory minimums.
Some jurors filed affidavits, recanting their verdicts. That became part of an appeal to the 9th Circuit Appellate Court. “We felt sure they would correct this injustice and overturn our egregious sentences,” wrote Scarmazzo. “I was certain we would return home and be reunited with our families. I was wrong.”
Back from working all day in the prison commissary warehouse and anxious to return to his “cold, cramped cell,” Scarmazzo noticed his name on the mail distribution list. He eagerly opened a letter from his brother Nick.
“Bro, sorry to hear about the news,” wrote Nick, who went on to tell him that the 9th Circuit Court of Appeals had affirmed their convictions.
“I was devastated. My attorney had not even contacted me with the news,” he wrote. “Worse than hearing the judge’s gavel slam when the guilty verdict was read aloud, this feeling had much more permanence and finality. Like a heavy mallet, the thought hammers me that the next twenty years of my life could likely pass through these dreary, interchangeable prison cages…”
Ironically, on May 24, 2013, Eduardo Arellano Felix of the brutal Arrellano Felix organization, a/k/a the Tijuana cartel, who smuggled hundreds of tons of cocaine and marijuana into California, took a deal and plead guilty to money laundering and conspiracy, and is awaiting sentencing. Federal prosecutors are recommending 15 years, almost six years less than Luke Scarmazzo, who operated a medical marijuana dispensary according to state law.
Irony of Ironies
In addition to the United States Penitentiary at Lompoc, there’s an adjacent prison camp that once housed minimum security male inmates. This is where White House Chief of Staff H. R. “Bob” Haldeman served time as a convicted felon after the Watergate scandal forced President Nixon to resign in 1974.
Nixon’s personal attorney, Herbert Kalmbach also checked into USP Lompoc after admitting to illegally soliciting $3.9 million in campaign donations.
But Lompoc is not “Club Fed” any more. In 1990 the prison camp was upgraded from minimum security Lompoc Federal Prison Camp to Lompoc Federal Correctional Institution to create space for more prisoners, mostly drug “offenders,” serving longer, mandatory sentences. As of January, 2013, sixty percent of prisoners at Lompoc FCI were serving time for drug “offenses.” According to the Lompoc Record, the Lompoc Federal Correctional Complex currently houses over 3,300 inmates in facilities that were designed for 2,200.
While Tommy Chong was a federal inmate, he confided to Sacred Cow Productions, “I’m the resident celebrity.” Interviewed in a holding cell, he talked about life behind bars, which is no fun, even for a funny man. But he brightened when he said, “I spend a lot of time taking pictures with inmates, which I love. I get a lot of mail and I love that, too! I love hearing the C.O. call my name. Chong! Chong! Chong! I love that!”
Sending a letter to a prisoner is like shining a light into a very dark corner. Tommy Chong is free now, but you can write to Luke Scarmazzo at:
Luke Scarmazzo, Register No. 63131-097
U. S. Penitentiary
3901 Klein Blvd.
Lompoc, CA 93436
With good behavior, he will be released on April 25, 2027.
Cynthia Johnston began writing about her experience as a medical marijuana patient as soon as she “got legal.” She went public on behalf of legalization in 1980 with the California Marijuana Initiative and a headline: “Marijuana Protester Busted at High Noon.” Johnston published her first blog before blogging was a word. A subsequent online journal earned her the opportunity to write a piece, “Mobile Homeless,” for The San Francisco Chronicle. She’s been blogging ever since.