On a cool, rainy day, more than 200 people crowd under a tarp in the parking lot of Big Mama’s Restaurant, bidding on bicycles, air rifles and marijuana posters to raise money to support a jailed local legend.
They have a lot of work to do, because Cornbread Mafia leader Johnny Boone, captured in Canada and returned to Kentucky after eight years as a fugitive, faces life in prison if convicted on his third strike, for growing 2,421 marijuana seedlings on a farm. In 29 states and the District of Columbia, marijuana is legal for recreational or medicinal purposes, or both. But the federal government, while giving a virtual free pass to growers in states where marijuana is legal, continues to seek long mandatory minimum penalties against defendants in Kentucky and other states where it is not.
Because of that unequal enforcement, the difference between becoming a successful entrepreneur in a fast-growing industry or a federal inmate depends on the state where you do your business, the Courier-Journal reported.
To Boone’s supporters at the $10 catfish supper and auction in Marion County, the distinction makes no sense. “He wasn’t out raping or murderin’ — he just grew a green plant,” said disabled veteran Craig Lee of Lebanon.
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“Marijuana ain’t so bad,” said A.B. Thompson of Loretto, a carpenter who served three years in prison in the 1980s for growing it as part of Boone’s Cornbread Mafia, which federal prosecutors called the largest domestic marijuana producing organization in the nation.
‘Only slightly less awful’ than heroin
Louisville attorney Tom Hectus, one of three lawyers for Boone, said, “It has always seemed a bit odd to me that marijuana is against federal law but prosecuted in some states and not in others.” And the penalties, he said, “are way out of line with what most people in this society think is appropriate.”
A Quinnipiac University poll in April found that 60 percent of Americans think marijuana should be made legal, and only 34 percent disagreed. And with equal support from Republicans and Democrats, the House overwhelmingly passed a spending bill in 2015 that forbids the use of federal money to block state medical-marijuana laws.
If Trump’s Justice Department decided to prosecute growers in states where marijuana is legal under state law, it would wreak havoc in states like Washington
U.S. Attorney John Kuhn, who could seek a life sentence for Boone, declined to comment on his case or on the disparity in federal marijuana prosecutions. Kuhn said he doesn’t want to make any statements that might jeopardize Boone’s right to a fair trial.
But U.S. Attorney General Jeff Sessions has made no secret of his views on marijuana, which he has described as “only slightly less awful” than heroin.
Last month, Sessions sent a two-page memo to federal prosecutors reversing former Attorney General Eric H. Holder’s directive to avoid charging certain defendants with offenses that would trigger long mandatory minimum sentences. Sessions told more than 5,000 assistant U.S. attorneys to pursue the toughest penalties.
A Justice Department spokesman said Sessions hasn’t yet overturned the Obama administration’s home-rule marijuana policy that in effect ordered federal prosecutors to look the other way in states where marijuana is legal.
Under that edict, U.S. prosecutors haven’t charged growers in those states as long as their operations didn’t involve an aggravating factor, such as the use of violence or firearms or the sale to minors.
If the Justice Department decided to prosecute growers in states where marijuana is legal under state law, it would wreak havoc in Washington state, where sales from recreational marijuana recently reached the $1 billion mark since it was legalized in 2015. In New Mexico, a private company broke ground in February on the nation’s largest medical marijuana plant, which will cover about 100 football fields and offer space for as many as 40 million plants.
Federal law characterizes marijuana as a Schedule 1 controlled substance, the same as heroin, and it is illegal to possess a single joint. Controlled substances are defined as any drug that has a “high potential for abuse” and no currently accepted medical use for treatment.
Boone’s possible defense
Boone is charged with manufacturing more than 1,000 marijuana plants and with knowingly possessing with intent to distribute more than 50 kilograms of marijuana, both of which carry sentences of 10 years to life. The government could seek a mandatory life sentence because of his previous convictions.
Boone was convicted in 1985 for possession with intention to distribute pot — some of it imported from Belize — and he was sentenced to five years in prison. He also was convicted in 1989 for unlawful manufacture of 1,000 plants or more, for which he was sentenced to 20 years and was paroled in 1999.
Then-U.S. Attorney Joseph Whittle said after Boone’s second bust that he was a leader in the Cornbread Mafia, which pooled its money, machinery, knowledge and labor to produce $350 million in pot that was seized in Illinois, Indiana, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska and Wisconsin.
Released from prison, Boone returned to the business, the government says. In May 2008, after aerial surveillance, Kentucky State Police and the DEA raided his farm in Springfield, about 60 miles southeast of Louisville, and found 2,421 marijuana seedlings on a pair of flatbed trucks that could be pulled in and out of a barn to get sun.
But Boone wasn’t there, and he disappeared before he was indicted later that year. He wasn’t found until eight years later, when he was arrested Dec. 22 near Montreal, Canada.
Hectus suggested that Boone might argue that he is the subject of selective enforcement in that he is being prosecuted for the same conduct that isn’t punished in states where marijuana is legal under state law.
But Melanie Reid, a former prosecutor in the Justice Department’s Narcotics and Dangerous Drug Section, said she doesn’t think any defendant has mounted that defense successfully.
Do we really want to take DEA agents and federal prosecutors off prosecutions of opioids and heroin and fentanyl, which are killing people — or marijuana traffickers?
Kerry Harvey, former U.S. attorney in Eastern Kentucky
Reid, a law professor at Lincoln Memorial University in Tennessee, said federal prosecutors have broad discretion to charge “who they want, when they want.”
She also said the Justice Department’s marijuana policy is neutrally written. It says prosecutors should review marijuana cases on a case-by-case basis and weigh all available information and evidence, including whether the operation is “demonstrably in compliance with a strong and effective state regulatory system.”
“I don’t think it would matter if Johnny Boone was growing marijuana in Kentucky or Colorado,” she said. “He would not be growing marijuana in compliance with state laws and regulations.”
Prosecuting pot in Kentucky
Federal marijuana manufacturing charges are relatively rare in Kentucky, and the numbers have declined in recent years, according to the U.S. Sentencing Commission.
Only 15 defendants were sentenced on trafficking charges in the Western District in 2015, the most recent year for which figures are available, and 21 in the Eastern District.
According to news releases from the U.S. Attorney’s Office in Louisville, the last offenders sentenced for growing 1,000 kilos or more — which can carry a life sentence — was in 2013, when the last of 21 defendants was sentenced in a case from Warren County.
Whittle, who was U.S. attorney from 1983 to 1993, initially said in an interview that Boone was a “kingpin” and that he and other large-scale growers deserve severe punishments.
But in the next breath the former prosecutor said, “I’m not sure that use of marijuana should not be legalized for use and regulated, so you could tax it and then go after unlicensed sellers.”
Kerry Harvey, a former U.S. attorney in Eastern Kentucky, said his office was prosecuting 50 to 100 marijuana-growing cases a year when he was appointed in 2010, but he eventually decided that was consuming too many resources.
Harvey, who resigned this year, said he asked himself, “Do we really want to take DEA agents and federal prosecutors off prosecutions of opioids and heroin and fentanyl, which are killing people — or marijuana traffickers?”
He said he decided to focus on the former.
Harvey said he thinks major marijuana growers deserve long sentences.
“But generally speaking, mandatory life sentences for nonviolent offenses are suspect,” he said. “I would use our resources to take people off the streets who are selling drugs that are killing people.”