Copyright: 1999 The Orange County Register Source: The Orange County Register (CA) Copyright: 1999 The Orange County Register Pubdate: Sat, 30 Jan 1999 Website: http://www.ocregister.com/ Contact: Alan W. Bock Note: Mr. Bock is the Register's senior editorial writer CHAVEZ SENTENCE IS CRIMINAL Marvin Chavez's severe sentence, handed down Friday, points up the importance of developing guidelines and protocols for the orderly and legal implementation of Prop. 215. Mr. Chavez was sentenced by Judge Thomas J. Borris in Orange County's West Court to 6 years in state prison for selling marijuana, slightly less than a potential penalty of 8 years. Mr. Chavez contended he was attempting to deliver marijuana to patients who needed it, under protection of Proposition 215, passed by voters in 1996, which allows marijuana use with a doctor's recommendation. Prosecutors claimed the transaction was a simple sale, which is still illegal under state law. Mr. Chavez plans to appeal. In the wake of Mr. Chavez's sentence, sick and disabled people with a legitimate need for marijuana have no clearer idea of how to obtain their medicine legitimately than they did before. If anything, James Silva, one of Mr. Chavez's attorneys, had it right when he told us after the sentencing, "The message this sends to patients is simple: hide." It shouldn't be that way. And it could and should have been less painful for all concerned. The first mistake was made by law enforcement officials who refused to speak or meet with Mr. Chavez after Prop. 215 was approved. A patient himself, Mr. Chavez early on announced his intention to develop a cooperative to permit patients access to medical marijuana and tried to elicit advice and cooperation from law enforcement officials. Instead of sitting down with him and saying, "Listen, these are the rules. If you follow them you'll be OK, if you don't you're going to jail," the DA's office commenced undercover investigations against him. In other localities in California local officials have closed medical marijuana distribution operations through civil injunctions rather than criminal charges. Mr. Chavez, as it turned out, could not look to Prop. 215 to help him in court. Judge Borris prohibited the jury to consider Prop. 215 during their deliberations. Consequently, the jury considered a narrow transaction and, on a larger scale, the final outcome does little to help develop legal guidelines for giving patients access to medical marijuana through legitimate channels. Judge Borris, to be fair, was looking at an imperfect person in this defendant. Mr. Chavez had had previous brushes with the law -- in fact, he received the injuries that led to his disabilities while in prison on a cocaine possession charge (he says he stopped doing it). One of those violations took place when he was released on his own recognizance. So it might be understandable that Judge Borris would refuse to release Mr. Chavez on probation without prison time. But the magnitude of the sentence still seems on the high end of the range in sentencing guidelines. Mr. Chavez may have tried to implement Prop. 215 imperfectly, even illegally, but he was trying to follow the proposition the best way he knew how. We talked to many patients who attended the trial who have been helped by Mr. Chavez. The authorities should have worked with him rather than pose as patients to meet him, ask for marijuana, then "sting" him when a voluntary donation to the group changed hands. James Silva and J. David Nick, Mr. Chavez's attorneys, say they will try to ensure that Mr. Chavez has access to the medicine to which he himself is legally entitled -- as all parties in this case have explicitly acknowledged -- while he is in custody. Others need to step up on this issue. California Attorney General Bill Lockyer's office says he is assembling a task force to develop a statewide plan to implement Prop. 215. Perhaps he should enter the appellate process on Mr. Chavez's behalf as well. Newly elected Gov. Gray Davis has the authority to pardon Mr. Chavez or to commute his sentence. Local officials can help also. Sheriff Mike Carona and District Attorney Anthony Rackauckas could meet with people on all sides of the issue who have a stake in the development of consistent policies toward medical marijuana patients and establish guidelines that will tell people how to avoid running afoul of the law. The county supervisors could study the matter and develop an implementing ordinance. Council members in local cities could develop guidelines and ordinances -- as is happening in fits and starts in other California cities. Mr. Chavez will lose more of his life to incarceration in large part because state and local officials failed to implement the voters' mandate. That shouldn't happen again. - --- MAP posted-by: Pat Dolan