Jonathan Wall, a 26-year-old cannabis entrepreneur, has been confined at a federal supermax facility in Maryland for nearly 20 months, awaiting a May 2 trial that could send him to prison for life. Wall is accused of transporting more than 1,000 kilograms of marijuana from California, where cannabis is legal for recreational use, to Maryland, which allows only medical use.
Wall’s case illustrates the draconian penalties that can still be imposed on people for selling pot at a time when most states have legalized marijuana businesses. As far as the federal government is concerned, all of those businesses are criminal enterprises. But depending on how federal prosecutors choose to exercise their discretion, selling pot can make you millions of dollars as a state-licensed supplier, or it can send you to prison for decades.
Under federal law, distributing 1,000 kilograms or more of marijuana is punishable by a mandatory minimum sentence of 10 years and a maximum penalty of life in prison. Maryland also treats unauthorized marijuana sales harshly: A “drug kingpin” (meaning “an organizer, supervisor, financier, or manager”) in a case involving 50 pounds or more is subject to “imprisonment for not less than 20 years and not exceeding 40 years without the possibility of parole.” In California, by contrast, state-licensed recreational sales are legal, while selling marijuana without a license is a misdemeanor punishable by up to six months in jail.
“I know what you’re thinking,” Wall writes in a Truthout essay published last August. “How can it be that the punishment for selling weed is so severe, especially in this day and age, with widespread decriminalization and cannabis medicinally or recreationally legal in the majority of states and territories that make up this country?” It’s a good question.
Thirty-seven states have legalized medical marijuana, and 18 of them, accounting for more than two-fifths of the US population, also allow recreational use. While two-thirds of Americans think marijuana should be legal, the federal government continues to classify it as a Schedule I drug, a category supposedly reserved for substances that have a high potential for abuse, have no accepted medical applications, and cannot be used safely even under medical supervision.
While President Joe Biden has said he favors reclassifying marijuana as a Schedule II drug, his administration has not initiated that process, which in any event would not affect the criminal penalties that defendants like Wall face. Biden opposes repealing the federal ban on marijuana, which seems inconsistent with his position that states should be free to legalize cannabis without federal interference.
Biden also promised that he would “broadly use his clemency power” to commute the sentences of nonviolent drug offenders and specifically said that anyone who had been convicted of marijuana offenses “should be let out of jail.” But so far he has not used his clemency power at all. Far from releasing people who violated pot prohibition, his administration is trying to imprison more of them, as Wall’s case shows.
“Who will be the last person incarcerated for marijuana in the United States?” asked the headline of a full-page ad that Wall’s supporters ran in The Washington Post last September. But even in the unlikely event that the Senate joined the House in approving a bill repealing federal prohibition, and even if Biden changed his mind and signed it, that would not necessarily mean people would no longer be “incarcerated for marijuana.”
First, states would be free to keep marijuana illegal, and many of them continue to treat cultivation and sale as serious crimes worthy of severe punishment. In Texas, where I live, all sales involving more than 7 grams (about a quarter of an ounce) are felonies. Selling up to five pounds carries a mandatory minimum of six months and a maximum of two years; The penalty is two to 20 years for five to 50 pounds, five to 99 years for 50 to 2,000 pounds, and 10 to 99 years for more than 2,000 pounds.
Second, federal legalization may include criminal penalties for people who do not comply with tax and regulatory provisions. Under the Marijuana Opportunity Reinvestment and Expungment (MORE) Act, which the House approved on April 1, producers who fail to pay an “occupation tax” can be punished by up to two years in prison and a $5,000 fine; The maximum penalty for marijuana suppliers who fail to obtain a federal permit is five years and a $10,000 fine.
While those penalties may seem light compared to the punishment that awaits Wall, they are more severe than the fines and jail terms that Congress authorized for people who violated the Volstead Act, which implemented federal alcohol prohibition after passage of the 18th Amendment. Under the Volstead Act, a first-time offender convicted of manufacturing or selling liquor could be punished by up to six months in jail or a fine of up to $1,000 (equivalent to about $16,600 today). Those maximums rose to five years or a $2,000 fine for further offenses.
By the standards of today’s war on drugs, such penalties look pretty mild. Juries nevertheless commonly balked at convicting people of violating the Volstead Act or equivalent state laws. “In New York,” Daniel Okrent notes in Last Call: The Rise and Fall of Prohibition“the first four thousand arrests under the Mullan-Gage law [the state’s version of the Volstead Act] resulted in fewer than five hundred indictments, which led in turn to only six convictions and not even one jail sentence.”
Jury nullification seems even more fitting for Wall, since the penalties he faces are much more severe, the drug he allegedly sold is less hazardous than alcohol by several important measures, and the ban he is charged with violating, alcohol prohibition, has no obvious constitutional basis (at least as it pertains to intrastate activities). While defendants who have clearly broken the law generally are not allowed to urge an acquittal in the interest of justice, jurors are apt to notice that the Justice Department is trying to imprison Wall for conduct that is legal in much of the country.
Wall’s Denver-based attorney, Jason Flores-Williams, spends some of his time advising cannabis investors. “I am in a situation where I get off the phone with Jonathan,” he told Insider“and the next phone call is from somebody in Nevada who is looking to invest $1.5 million into a cannabis corporation based here in Colorado that is expanding into Mexico….These are the exact same activities.”
To Flores-Williams, that distinction makes no sense. “Right now there is this profound inconsistency in this country,” he said. “I go to court in Maryland, and then just 40 miles down the road you’ve got a 72,000-square-foot warehouse that’s rented out for the next 20 years because someone was smart enough to buy it and convert it into a pot grow and rent it out.”
Flores-Williams argued that the indictment against Wall should be dismissed on equal protection grounds. “A citizen’s ability to engage in this American market depends neither on talent nor [on] work ethic, but on the preferences of the local prosecutor,” he wrote. “If you’re in LA and own several dispensaries, then you are a successful businessperson. If you’re in Maryland, then you are evidently a criminal.”
Flores-Williams noted that “there are millions of people right now in this country who are engaged in the manufacture, distribution, and/or possession of cannabis, who are not, in fact, being prosecuted.” Depending on where they happen to be located, he said, “some citizens [are] enjoying economic liberties that other citizens are being denied, which violates bedrock equal protection law.”
Last May, Flores-Williams tells me, US District Judge Stephanie A. Gallagher rejected that argument from the bench without offering much in the way of legal reasoning. The double standard that Flores-Williams highlights nevertheless should trouble the jurors who hear Wall’s case. Flores-Williams says it’s not clear how much leeway he will have to talk about disparate treatment of marijuana suppliers, since prosecutors will argue that it’s irrelevant to the charges against Wall, but “we’re going to fight like maniacs” to make that point at trial.
Wall notes that former House Speaker John Boehner, an Ohio Republican who had no qualms about marijuana prohibition when he served in Congress, is now “sitting on the board of Acreage Holdings, one of the largest publicly traded cannabis companies in the world.” The ad calling attention to Wall’s case pointed out that “cannabis corporations” in Maryland and other states are “making billions in revenue growing, manufacturing and distributing pot,” while celebrities such as Willie Nelson, Jay-Z, and Seth Rogen have their own marijuana brands. “Jonathan Wall faces life in prison,” the ad said, “while Beyonce says that she’s starting a cannabis farm. This is not the way the law is supposed to work.”