Lesser Harm Doctrine in Medical Marijuana Case

According to Associated Press writer Daisy Nguyen, in an article published Nov. 24, 2003 in the San Jose Mercury News:

"A federal judge cited a 'lesser harm doctrine' when he ruled Monday [Nov. 24, 2003] that three men who pleaded guilty to running a West Hollywood medical marijuana center would receive no prison time.

U.S. District Judge A. Howard Matz expressed admiration for the men's work in helping sick patients during the sentencing hearing in which he ordered they serve only one year of probation and up to 250 hours of community service."

The article continued by noting:

"Matz conceded he was navigating 'somewhat uncharted shoals' in making the downward departure from sentencing guidelines, but was resolute in ruling that [Scott] Imler, along with Jeff Yablan and Jeffrey Farrington 'committed a crime to avoid the harm of the greater suffering of patients' by giving them medical marijuana.

'They didn't do it for money or political leverage,' Matz said during an emotional sentencing hearing attended by many of the defendants' supporters, including former patients of the Los Angeles Cannabis Resource Center.

Imler, Yablan and Farrington faced up to 30 months in federal prison after striking a plea bargain with prosecutors. They ran the medical marijuana center for five years until 2001 when federal agents raided the center and shut it down.

During that period, Matz said the men scrupulously adhered to rules established under Proposition 215, the nation's first medical marijuana law, which allowed Californians with cancer, HIV and certain other chronic medical conditions to grow and use marijuana to ease nausea and other health problems, if a physician recommends it.

The 1996 state law, however, conflicted with federal law banning the cultivation, possession and use of marijuana, even for medical purposes. The conflicting laws have led to numerous raids of medical marijuana centers and lawsuits.

Matz cited letters from local authorities, including county Sheriff Lee Baca and Assemblywoman Jackie Goldberg, D-Los Angeles, who noted that Imler, the president of the Cannabis Resource Center, openly discussed the center's operation with them. The center was providing marijuana to about 960 patients suffering from AIDS, epilepsy, glaucoma, cancer and other serious illnesses before it was shut down, said Imler's attorney, Ronald Kaye.

Matz also read 'heartfelt' letters from former patients and friends, including one from a friend of Imler who said he made 'a difference in lives that amounted to little else than loneliness, grief and premature extinction.' He mentioned a letter from Imler's doctor, who said he was diagnosed with advanced stage lung cancer and was scheduled to undergo surgery next week.

The judge said the entire prosecution was 'badly misguided' and he said he was baffled and disturbed that the Drug Enforcement Agency and prosecutors wasted so much time and money in prosecuting the case.

He admonished prosecutors for calling Imler's medical condition 'not an extraordinary impairment.'

'I don't know these prosecutors, but to say this is not an extraordinary impairment shows that this person has had no direct experience with cancer,' he said.

'We don't contest the sincerity and good faith of these defendants,' lead prosecutor Patrick Fitzgerald told the judge. 'But we do have a legal regime in which a law was passed by Congress and I think ... all of us whether we agree with those rules or not need to abide by them.'"
Nov. 24, 2003 Associated Press