05.05.2016
policy

420 POWs: How Conspiracy Laws Put Pot People in Prison for Life

What counts as a conspiracy these days is a crime.

Craig Cesal’s criminal history, until about 15 years ago, consisted of a $150 fine for unlawfully bringing his own beer into a bar. He was otherwise a model American. He donated to the Fraternal Order of Police and, to provide for his two children, worked overtime running two small businesses, one of which was a body shop for semi-trucks and trailers.

His company was frequently tasked with retrieving and rebuilding leased vehicles—many had been impounded and torn apart by law enforcement agencies in their search for contraband. Authorities weren’t fond of an arrangement that protected trucks belonging to leasing companies from being seized—as happens to vehicles owned by suspected drug smugglers—under asset forfeiture laws.

In March of 2001, while Cesal was on a spring break trip to Disneyland with his children, scores of federal and state agents descended on his home and business. A truck driver, whose vehicle had been seized by U.S. Border Patrol in Texas a year prior, had told the Drug Enforcement Administration (DEA) that he’d previously delivered marijuana-loaded trucks to Cesal’s Chicago business. Cesal denied this admission as false, but it nevertheless secured the driver a reduced sentence.

Citing a lack of evidence, federal authorities ultimately dismissed charges against Cesal; he wasn’t off the hook, however. For four months, agents pursued him with maniacal gusto, trailing him, his family, and girlfriend.

“When will daddy come home?” his son repeatedly asked following Cesal's arrest. The answer to the child’s question might very well be never. 

In an attempt to escape the police monitored nightmare that had become his life, Cesal took a mini-vacation to Gainesville, Georgia, with his girlfriend. Their journey was to include a minor work-related task: The retrieval of a truck from the parking lot of an IHOP restaurant. Upon the couple’s arrival at the chain, soldiers in camouflage emerged from behind bushes and cars, wielding automatic weapons. Cesal was at the dead center of a sting operation.

“When will daddy come home?” his son repeatedly asked his ex-wife following Cesal's arrest. The answer to the child’s question might very well be never. Federal agents charged Cesal with conspiring to distribute marijuana. His involvement was confined to an agreement he’d made with the renters of a semi-truck previously busted by U.S. Border Patrol in Laredo, Texas, for carrying 2,700 pounds of pot.

Cesal writes:

“I was never alleged to have bought, sold, possessed, grew or even smoked marijuana. I never denied what my business did … Under the federal conspiracy law, however, I was convicted of distributing marijuana simply because my services encouraged the driver/traffickers.”

For his inadvertent involvement in a drug conspiracy, a law-abiding business owner, with no prior felony convictions, was sentenced to life in prison without the possibility of parole, like countless other nonviolent drug offenders. Americans may be relaxing their stances on marijuana—24 states and Washington, D.C., have some form of legalization for the drug—but the federal government is moving at a glacial pace in following suit. Marijuana lifers are entering the criminal justice system even today.


Craig Cesal

***

The United States has battled a losing drug war for nearly half a century, spending more than $1 trillion to fight it. The drawn-out effort was intended to eradicate or drive down rates of crime and the production, trade, and use of illicit substances. It has proven largely unsuccessful in all but creating a situation of mass incarceration.

The vague federal conspiracy law used to place people behind bars for inconsequential, incidental, or arbitrary links to high-level drug traffickers is at the heart of this travesty. Low-level offenders, like Cesal, are being charged with the crimes of an entire drug ring.

“I guarantee you, me and everybody is guilty of conspiracy,” Cheri Sicard, founder of the Marijuana Life Project, an advocacy organization aiming to reverse the life sentences of people charged with marijuana crimes, tells The KIND. “It takes almost nothing.”

Drug conspiracies evoke images of Mexican cartels corrupting federal agents. The majority of conspiracy cases, at least as charged in the US, are nothing of the sort. Modern-day drug organizations tend to be large and diverse. Minor players seldom know the identities of higher-ups. Whether or not a person is charged with a conspiracy can depend on the amount of useful information about the operation the person arrested is able to provide. Low-level offenders don’t have much to bargain with.


Image via Guido van Nispen/Flickr


“Conspiracy is a corrupt legal concept that allows the government to convict the lowest level drug offender for the worst, most outrageous event that anyone else in the entire conspiracy committed,” says Keith Stroup, legal counsel for the National Organization for the Reform of Marijuana Laws (NORML). “It does not require that you were aware of the bigger picture.”

In conspiracy cases, the usual standard of proof beyond a reasonable doubt is thrown out. The federal government isn’t required to seize any drugs; it simply needs to find people who are willing to testify that they’ve seen them.

“What you have is conviction on the basis of testimony,” Eric Sterling, who served as legal counsel for the U.S. House Committee on the Judiciary that drafted the national conspiracy law, told Frontline. “You have drugless drug cases. You don’t need powder. All you need is the witness to say, ‘I saw a kilo.’ ”

Immediately following the enactment of the federal conspiracy law in 1988, the percentage of federal inmates increased by 300 percent.

Concurrent with the federal conspiracy statute are mandatory minimum sentences, “probably the greatest tragedy of my professional life,” Sterling says. 

Mandatory minimums require judges to mete our sentences based on the weight of the drugs people are carrying, rather than the defendant's role within the drug ring. It’s extremely rare for kingpins to come in contact with actual drugs. Mandatory minimums end up hitting petty offenders the hardest.

“It basically takes the discretion away from the judge to look at the totality of the crime,” says Tony Papas, manager of media and artist relations at the Drug Policy Alliance. Papas himself spent 12 years behind bars, pre-drug war, for a crime he claims not to have known he was committing. Former New York Gov. George Pataki eventually pardoned him.

Assault with a deadly weapon resulting in serious injury carries a maximum sentence of 20 years. Rape of a prisoner carries a maximum sentence of two years. Providing terrorists with material support carries a sentence of up to 15 years. Selling marijuana to terrorists carries a potential life sentence. The arbitrary nature of sentencing in the U.S. led Cesal, the Chicago body-shop owner, to implore: “Punish me as a rapist or terrorist. Please but not as a marijuana offender!”

Immediately following the enactment of the federal conspiracy law in 1988, the percentage of federal inmates increased by 300 percent, according to former judiciary counsel Sterling. Now, as president of the Criminal Justice Policy Foundation, Sterling is trying to right the wrongs of statutes he helped create.

“The conspiracy statute is the most evil tool in the Department of Justice toolbox,” says Amy Povah, a former drug inmate who was granted clemency by President Bill Clinton and now runs the nonprofit CAN-DO, an acronym for “Clemency for All Nonviolent Drug Offenders.”

She continues: “The reason we have one drug bust after another gone wrong is because they will go on the word of a person who’s tweaking on meth. We need to get back to legislation that nobody can be convicted on testimony alone.”

***

People charged with conspiracy don’t have a wealth of options: They can plead guilty, go to trial, or snitch. The majority of offenders forgo their Sixth Amendment right to a speedy trial for a reduced sentence tied to a plea bargain. In trials, the odds are stacked against defendants.

“You’re either going to admit your guilt before the trial or you’re going to admit your guilt to a jury during trial,” explains Chris Lindsey, a senior legislative analyst with the Marijuana Policy Project. “The outcomes are tremendously different. It’s better to have a conversation with the judge and prosecutor, rather than being found guilty.”

Unlike defendants, the federal government has unlimited resources and time to devote to its case. It barely ever loses. And juries often assumes that if a person is in a courtroom, there was sufficient evidence to put that person there.


Image via Mattias Muller/Flickr


“The stats are daunting against federal defendants,” Paul Coggins, former U.S. attorney, told the Dallas News. “About 90 percent of the cases end with a plea bargain. Of those cases going to trial, about 90 percent end in a guilty verdict.”

In building conspiracy drug cases, federal prosecutors threaten offenders with long prison sentences it they opt not to cooperate. Presented with the option of being put away for decades or making up some shit in exchange for a reduced sentence, defendants have been known to tell the feds any wildly untrue thing the lawmen want to hear.

“It’s a very effective way for the prosecutor and law enforcement to put pressure on you,” says Lindsey of the Marijuana Policy Project. “They can flip you.”

***

Nevada resident Patricia Albright desired nothing more than to ease the discomfort of her blind 8-year-old son, Trevor. The boy was dying of bone cancer and consistently in excruciating pain, despite being on a 650-mg-per-hour morphine drip. The painkiller was shutting down the child's digestive tract, making it impossible for him to eat. At the suggestion of Trevor’s oncologist, Albright incorporated homemade marijuana-infused butter into the foods he was consuming, hoping to alleviate some of his symptoms.

“Once I started giving Trevor this medicine, everything changed for him,” Albright writes. “He was able to eat his favorite foods, sleep, laugh, listen to his favorite music, ‘watch’ Mr. Rogers, move his bowels, and he was lucid enough to have friends and family over to say goodbye. I became a believer and have been ever since.”

Trevor eventually passed away, but Albright, having witnessed firsthand the medicinal effects of marijuana, continued providing the plant to patients in need. Her cooperative was in compliance with Nevada laws, never growing more than 100 plants.

Facing a maximum sentence of 40 years in prison and a fine of $5 million, she plead guilty in exchange for a 65-month sentence and four years supervised release.

Even though marijuana remained federally illegal, former Attorney General Eric Holder stated in 2013 that he would be delegating the responsibility of regulating and implementing marijuana ballot initiatives to states, as long as they adhered to a set of guidelines, which included not growing marijuana on federal land or near schools attended by children.

Because mandatory minimums are determined, in the case of marijuana, by the number of plants possessed, Albright alleges that the federal government added plants from previous years she ran a collective to her total when they did bust her. A count beyond the 100-plant cutoff number triggered a longer mandatory sentence.

The testimony of a person close to the family implicated Albright and her then-23-year-old son, Jordan Wirtz, of interstate trafficking and money laundering—a false accusation, according to Albright. But, facing a maximum sentence of 40 years in prison and a fine of $5 million, she plead guilty in exchange for a 65-month sentence and four years supervised release. Her son is also incarcerated; he’s served almost two years of his five-year sentence.

Federal laws occasionally conflict with the laws of states, especially when it comes to pot. People tend to operate under the belief that if they comply with local and state laws, the federal government will stay out of their business. This is not necessarily the reality.

“Discretion is entirely up to the attorney general,” says Lindsey, the Marijuana Policy Project legislative analyst. “If they target somebody, there are really no legal defenses.”

***

Amy Povah, an advocate for nonviolent drug offenders in federal prison, spends a fair share of time on Capitol Hill discussing fairer drug policy with politicians. She says some lawmakers are oblivious to the fact people are spending life in prison for pot, and projects 98 percent of the legislators have no grasp of conspiracy or asset forfeiture laws, concepts that go hand in hand with the drug laws they’re drafting.


Amy Povah. Image via The Clemency Project


Even marijuana offenders themselves sometimes don’t know what’s in store for them. They’re like “deer in headlights” when they’re sentenced to life in prison, says Povah.

“They’re in denial sometimes, even while sitting behind bars” she laments. “They’re thinking: I’m a good person, how can this happen to me?’”

Craig Cesal was never proven to have been aware of his involvement in a marijuana conspiracy— and never touched the drug—yet he was sentenced to life in prison for it.

Before their father's incarceration, his children excelled at academics. After, Lauren plummeted to the bottom 50 percent of her class, and Curtis became involved with heroin, dying of an overdose in 2014. Prison guards failed to process Cesal’s request to attend his boy's funeral. When the day arrived, he was only able to speak to his daughter over the phone as she loomed over the casket of her deceased brother.

***

It could be decades before the federal government ends the drug war. Meanwhile, the only thing marijuana lifers and other nonviolent drug offenders can do is wait—wait for laws to change, wait to be granted clemency, or wait to die. President Barack Obama has so far commuted the life sentences of 248 inmates, only three of whom were in prison for pot alone.

“We hear there’s gong to be a lot of pardons, but haven’t seen anything. We’re very, very concerned prisoners are going to fall through the cracks,” says Sicard, founder of the Marijuana Life Project. “Some of these guys really don’t have much time left.”

Included in this group is Michael Pelletier, a wheelchair-bound man serving a life sentence in a maximum-security prison for marijuana charges despite posing a threat to no one.

“It breaks your heart. It’s a witch hunt,” says Povah. “It’s hard to believe that we’re supposedly a civilized nation that pretends to walk the high ground.”


Image via @ChaseLyall/Twitter

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