Judge defends Marijuana Sentence restricting Freedom of Speech

Circuit Court Judge Jack Delaney had given plenty of thought to his sentencing options by the time he arrived in court July 6.

It was a fairly typical charge but a not-so-typical defendant: Bob Newland.

The well-known public advocate for the legalization of marijuana for medical purposes had previously pleaded guilty to felony possession of the drug. And Delaney wanted to make the sentence sting without imposing an unduly harsh prison term on a 60-year-old man with a relatively clean criminal record.

So in essence, he told him to shut up for a year about one thing: medical marijuana, and an ongoing campaign to bring the issue to another public vote in 2010.

Delaney sentenced Newland to one year in Pennington County Jail but suspended all but 45 days under a set of stipulations that included weekly drug tests, random searches and a one-year ban on public advocacy for medical marijuana.

Delaney rejects assertions by some that he was imposing his personal beliefs on medical marijuana through the sentence.

“I have no concern whatsoever about whether medical marijuana is legalized,” Delaney said during an interview with the Journal in his office. “The important thing was to have a sentence crafted to impose a penalty on Mr. Newland that was significant to him.”

The advocacy ban was an infringement on Newland’s First Amendment rights. Delaney doesn’t deny that. But neither does he consider it more onerous or any less appropriate than many other infringements imposed as part of felony sentences.

The random searches Newland faces in the next year would be violations of his constitutional rights, but for the felony plea. Felons can face otherwise unconstitutional firearms restrictions and the right to associate with certain people or go to certain establishments, Delaney said.

“We restrict speech as well in a lot of protection orders, or in divorces, where in some cases the parties’ freedom to speak to one another may be limited,” he said.

And given the fact that the maximum penalty for Class 6 felony marijuana possession was two years in prison and a $4,000 fine, Newland’s sentence could be considered light by others who face similar charges, Delaney said. He was particularly concerned about younger minority defendants who might get a longer jail term for the same crime.

“I’m sitting there faced with a gentleman who is older, well known, who is thought by many to be considerably more well off than he is, and he is seeking a sentence that is going to be considerably more lenient that what they (minority defendants) might receive,” Delaney said. “So my thought was that I have to take something from him that is as valuable or maybe even more valuable than his freedom.”

Delaney settled on what he calls the “partial infringement of speech,” as well as limits on his freedom of association in support of medical marijuana. Newland may still meet in private with medical marijuana advocates to plan the medical-marijuana campaign. But he cannot appear publicly in or speak on or for the campaign.

“I’m taking away a legal right of the person to associate,” Delaney said. “I’m taking away his liberties. But not nearly as much as if he were in jail.”

Typical sentences for the same felony possession charge range from 45 days to 120 days in jail, Delaney said. But many of those who receive such sentences have more criminal marks on their record, he said.

Delaney has received about 40 e-mails commenting on the verdict, with many critical of the ban on speech and public involvement in the medical marijuana campaign. Many of the e-mails came from people active in the medical marijuana movement, he said, and some engaged in “name calling.”

Others, however, were more understanding when Delaney explained his rationale.

“All felonies are serious crimes, and they have a wide range of impacts on anybody who’s a felon,” he said. “This is unusual. And if it hadn’t been Bob Newland, it wouldn’t have had the same impact.” Source.

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