The lucky one 

Tom Daubert was an architect of the state's medical marijuana law. Now he's a convicted felon.

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Two days after Daubert’s sentencing, he wears Birkenstocks and cargo shorts and smokes American Spirit cigarettes at Hempfest in Caras Park. The hot sun beats down on booths selling hemp soap, feathered earrings and hemp oil. The smell of incense hangs in the air.

Friends and strangers stop to hug Daubert. A man who apparently doesn’t recognize him asks the newly minted felon if he can spare a “a couple of hits.” Daubert quips: “I’m dry by federal order, my friend.”

click to enlarge “I’m grateful for the judge’s leniency, but I will never stop believing that patients who benefit medically from cannabis deserve laws that honor actual science and thousands of years of human history,” Daubert says. - CHAD HARDER
  • Chad Harder
  • “I’m grateful for the judge’s leniency, but I will never stop believing that patients who benefit medically from cannabis deserve laws that honor actual science and thousands of years of human history,” Daubert says.

Daubert long planned on attending Hempfest. Even if he was sentenced to jail, he thought he’d have a couple weeks to arrange his affairs. But he admits that he always believed the judge would be lenient with his sentencing.

Daubert describes himself as a man of faith. He was born on Columbus Day in 1952 to a schoolteacher mother and a father who worked for a pharmaceutical company. Daubert says his parents instilled a strong moral compass in him early on, and it guided him through his classes at William Penn Charter School, a prestigious Quaker high school in Philadelphia.

The Quakers, or Religious Society of Friends, were prominent in Philadelphia while Daubert was growing up. Daubert, an only child, says he always felt comfortable in silence, and the Quakers taught that spiritual guidance comes through quiet reflection.

That teaching was tested in 10th grade when Daubert and two classmates rolled out Vast Minority?, a magazine that promoted antiwar politics. They distributed the Vietnam-era publication throughout Quaker schools in southeastern Pennsylvania, and it didn’t sit well with everyone. Students burned it in protest. Daubert’s boyhood friend and magazine co-founder, Jeffrey A. Hartman, wrote in a letter submitted at Daubert’s sentencing that Daubert did not respond to such “hate speech” with anger, but rather, “something I can only call grace.”

This same sort of diplomacy helped Daubert bring divergent interests together at the Montana Capitol. In 2004, the Marijuana Policy Project hired him to be a part of the campaign to legalize medical cannabis. Daubert focused the campaign’s message on recent studies that show how the plant helps treat cancer, diabetes, muscle spasms, nausea, inflammation and pain, among other conditions, and it’s possible effects on patients. He added historical context, such as the fact the Chinese used it as medicine as early as 5,000 BC.

click to enlarge Richard Flor stands in the middle of his Miles City garden. His daughter Kristin Flor says, “He worked hard to build that garden up.”
  • Richard Flor stands in the middle of his Miles City garden. His daughter Kristin Flor says, “He worked hard to build that garden up.”

Through his work with the Medical Marijuana Project, Daubert met people like Robin Prosser, who suffered from a lupus-like immunosuppressive disease that left her in constant pain. Allergic to many pharmaceuticals, she used medical marijuana to quell muscle spasms. Prosser committed suicide in 2007 when, because of federal law enforcement intervention, she was unable to get the one cannabis strain that eased her pain.

“Getting to know and love those people helped make the issue a passion for me,” Daubert says.

His passion was a driving force behind the 2004 campaign for CI 148, which later became the Medical Marijuana Act. The law passed with 62 percent of the vote.

Though passage of the law marked a professional and personal success, Daubert now says that he would have done things differently. “I would have said to people, ‘Okay, we’ve just won a very important symbolic issue and not a thing has changed. But what we now have is a stronger argument to [Montana’s congressional] delegation to insist that they participate in creating a federal policy that would honor this issue at the state level,’” he says.

Daubert is also the first to admit the law was problematic. “There were a lot of nuances about what it was going to take to really make it work for patients that the law didn’t spell out,” he says.

In successive legislative sessions, Daubert attempted to refine and clarify the Medical Marijuana Act. Those efforts didn’t pan out. In a character letter to the court, Roy Kemp, who oversees the state’s marijuana registry, noted how Daubert aimed for improvements and clarifications while the state was otherwise “unable to obtain any clear statements about how to proceed under state law or even who to ask.”

In 2007, Daubert founded the nonprofit Patients and Families United, a support group for medical marijuana patients and providers that aimed to educate legislators and the public about the merits of cannabis use. Two years later, his role in educating the public drastically changed. “The so-called “Ogden Memo,” which stated that the federal government would not prosecute medical marijuana providers who were in “clear and unambiguous compliance” with state medical marijuana laws, opened the door to a booming new industry. Caregivers who had previously kept their operations behind closed doors suddenly opened dispensaries in clear view across Montana. The patient population ballooned, too. At the end of 2009 there were 7,339 patients on the state marijuana registry. In May 2011, that number peaked at 31,522.

After the Ogden Memo came out, caregivers surfaced who seemed to be impervious to cultural sensitivities or political realities. Daubert took issue with providers that flaunted their business. In 2009, for instance, he publicly chastised the Montana Caregivers Network, known for its traveling medical marijuana clinics and brief doctor visits, in an op-ed column published in the Great Falls Tribune. “A lot of people jumped into the issue with, as far as I could tell, no understanding of the nuances of the law and very little concern for Montana culture and how not to create political backlash,” Daubert says. “I could foresee political disaster right around the corner.”

When he formed Montana Cannabis with Chris Lindsey, Chris Williams and Richard Flor, the men aspired to make it a beacon for other providers who were grappling with the law. They also aimed to prove that a dispensary could operate transparently and in the spirit of the Medical Marijuana Act. They frequently gave tours of the facility to legislators, law enforcement and media. “It seemed to me someone had to do that in a dramatic, visible way,” Daubert says.

But it was unanswered questions in the state’s Medical Marijuana Act, such as caregiver-to-caregiver transactions, or whether hash was permitted under the law, that later gave the federal government ammunition against Daubert and the other Montana Cannabis partners.

It was during the 2011 legislative session, as Daubert was regularly meeting with legislators and law enforcement, such as the state’s top narcotics officer, Mark Long, that the raids occurred.

“I felt that I was forming really solid, trusting, respectful relationships with them, and becoming much more in tune to the problems that they had with the law,” Daubert says.

Despite the fact that his career is now in shambles, Daubert isn’t angry with any one person. He sees the issue in broader terms.

“So many more people are suffering more—and will—than I am,” he says.

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