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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Montana state Rep. David Howard, from Park City, evoked colorful imagery last year when summing up his take on the Montana Legislature’s attempts to reform the state’s medical marijuana law. “A good friend of mine said it’s impossible to make chicken salad out of chicken scat,” he said. “But that’s what this body is trying to do.”

Howard chaired the House Human Services Committee, which worked with Billings Republican Sen. Jeff Essman to draft and amend SB 423. Now law, the legislation stripped the profit out of caregiving and limited how many patients providers can have. Howard made the comments in April 2011 during a debate about the merits of SB 423.

Human Services Committee Vice Chair Cary Smith, a Republican, also testified that day in support of SB 423. He told those gathered in the House chambers that it was incumbent upon the legislature to “put the genie back in the bottle.”

Opposition to medical marijuana in Montana remains vigilant. In a recent interview with the Independent, Smith highlighted some of the concerns legislators grappled with in the weeks leading up to passage of SB 423. Opponents called it a de facto repeal of the state’s Medical Marijuana Act, but Smith saw the changes in SB 423 as a return to the original ballot language, which was about “taking care of grandma that’s dying of cancer.”

The original ballot language, Smith says, never called for building a cannabis industry. Mainstream Montanans don’t want to see marijuana dispensaries on every corner, he says. There was a regulatory vacuum because the legislature never envisioned an industry.

“And, of course, that became the problem that the federal government had with it also,” Smith says. “They were leaving people pretty much alone as long as you were growing it for yourself and you weren’t selling it. But when you started trying to have a business or an industry that’s when the raids came about.”

The federal government’s marijuana prohibition means that there’s no top-down regulatory scheme in place. While federal agencies regulate tobacco, alcohol and pharmaceuticals, that’s just not doable with marijuana. In the face of that void, the state simply isn’t equipped to regulate a booming marijuana industry, Smith says.

“What kind of quality control do you have when you don’t have all these agencies?” Smith says. “And then, what are we going to do? Are we going to try to grow the government in the state of Montana?”

Smith says the arguments marijuana proponents use, saying that the drug is less dangerous than alcohol, pharmaceuticals and tobacco, don’t hold water with him. Montana already tops many of its peers when it comes to alcohol and prescription drug abuse. Why open the door to another vice?

“It’s almost like saying, ‘Why don’t you let people drive 80 miles an hour, it’s not as dangerous as 90 miles an hour?’” Smith says. “I just don’t see the point in adding another thing to the mix.”

Safety was also a significant worry for police. Law enforcement, including Missoula Police Chief Mark Muir, testified in favor of repealing the medical marijuana law. When expressing concern about the rapid growth of the cannabis industry, Muir compared the industry to the Gulf oil spill and said, “Think again when people say…’We can’t put a cap on this.’”

During Daubert’s sentencing, federal prosecutor Joe Thaggard pointed to the combination of drugs and guns at Montana Cannabis, specifically, as being “volatile and dangerous.” As further proof of the potentially explosive situation, Thaggard highlighted the fact that the dispensary employed convicted kidnapper Dan Nichols. In 1985, Nichols was convicted along with his father, Don Nichols, of abducting and injuring Olympic biathlete Kari Swenson.

“The defendant cannot just walk away from that,” Thaggard said.


Before Judge Christensen announced his decision in Daubert’s case, he made a point of saying that the federal Department of Justice decides who is prosecuted, but sentencing decisions are “mine to make and mine alone.” The judge also explained that he’d read every word of the 72-character letters submitted on Daubert’s behalf. Christensen seems to respond to the letter writers when he acknowledges that there “appears to be an irreconcilable conflict” between state and federal law. That conflict may seem unfair in the minds of some, he says, but it’s to Daubert’s credit that he didn’t try to take on federal law.

It may seem strange, but Daubert says the ordeal has been good for him in some respects.

“I would almost recommend this as an incredible growth opportunity,” he says. “You either get yourself together, to the extent that you’re not already, or you don’t.”

He plans to use his recent experiences with the federal government to write a book about how it feels to be a prosecutorial target. Other than that, he’s not sure of his plans. As for future advocacy efforts, Daubert says he’s committed to remaining a personal supporter of medical marijuana, but he’s not yet sure if he can stomach a continued career championing Montana’s medical marijuana movement.

“You can only take so much cynicism and still operate in the political arena,” he says. “The judge said I am allowed to go to the legal limit on alcohol. I think I’m way beyond the sensible operational limit on cynicism right now.”

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