A Medical Marijuana Death Sentence

R.I.P., Richard Flor, a 68 year old medical marijuana dispensary owner who has died in federal prison. The story will make you sick.

US District Court Judge Charles Lovell sentenced Flor to to 5 years in federal prison despite testimony that he was suffering from a variety of illnesses, including dementia, diabetes, hepatitis C, and osteoporosis. Lovell did recommend that Flor "be designated for incarceration at a federal medical center" where his "numerous physical and mental diseases and conditions can be evaluated and treated."

Months after beginning his sentence, he still hadn't been transferred to a medical facility. His lawyer described his condition in a brief:

On multiple occasions while in custody, Flor had fallen out of bed breaking his ribs, his clavicle and his cervical bones as well as injuring vertebrae in his spine. Flor also suffered from dementia, diabetes and kidney failure among other ailments,.

Here's what the Judge had to say: [More..]

[Judge] Lovell wrote that it was unfortunate the Flor had not yet been transferred to an appropriate medical facility but that the concerns detailed in the motion were “not factually or legally significant.”

The Marshals Service picked him up a week ago to transport him to an undisclosed medical prison. Flor died on Wednesday after suffering two heart attacks while in the transfer facility waiting for transport. His lawyer says:

It’s incredible to me to take a man with dementia, failing kidneys, severe diabetes and unable to care for himself and incarcerate him,” Arndorfer said Thursday. “He required nursing home care, and as far as I can tell he didn’t receive any care while he was incarcerated...

According to the the doctor's report filed by his lawyers who were seeking an alternative sentence, Flor suffered from:

Diabetes Mellitus Type I, Hypertension, Osteoporsis, Osteoarthritis, Degeneration of lumbar or lumbosacral intervertebral disc, Neuropathy, Microscopic Hematuria, Male Erectile Disorder, Hyperlipidemia, Occlusion and Stenosis of Carotid Artery without Cerebral Infarction, Chronic Obstructive Asthma, Abdominal Aortic Aneurysm, Degeneration of cervical intervertebral disc, Iron deficiency anemia, Neurogenic Arthropathy, Coronary Artery Disease, Trigger Finger, Sleep Apnea, Contracture of palmar fascia, Hypogonadism, Enlarged prostate without urinary obstruction, edema, Angioedema, Gastroesophageal Reflux Disease, and Hepatitis C, As of September 2011, Mr, Flor was prescribed 28 different medications to treat these disorders.

But there's more. During the legal wrangling over whether the Flors would be prohibited from using Montana's medical marijuana statute as a defense or even referring to medical marijuana or the Justice Department's Ogden memo at trial, Flor's lawyer filed a motion seeking a competency determination due to Flor's escalating signs of dementia (he had a dementia episode the previous July that required an ambulance to come to the house and hospitalization.) The Judge ordered Flor committed to a BOP facility for a few months for a competency evaluation. The Government did not object.

When he came back, his lawyer said a plea agreement had been arrived at, and while Flor was not competent to stand trial, he thought he was competent to plead guilty. The judge held a hearing and the Government said it thought Flor was competent to plead guilty.

In the plea agreement, the Government agreed to drop all the charges and let Flor plead to a single new charge of conspiracy to maintain drug-involved premises, which did not have a mandatory minimum sentence, and promised not to make any sentencing recommendation. The plea agreement said:

Defendant retains the right to argue for the imposition of any sentence he feels is appropriate. Beyond its agreement to recommend a base offense level of 26 and that the Defendant receive a three-level reduction of his advisory sentencing guideline sentence for the Defendant's acceptance of responsibility by the entry of a timely guilty plea in this matter, the government agrees not to make a specific sentencing recommendation in this matter. (Emphasis supplied.)

But the Government "forgot" its promise and later filed a lengthy sentencing memorandum asking for a sentence of 108 -135 months (9 to 11 years.) It wrote:

While the Defendant does not have a scored criminal history, the significance of his crime deserves imprisonment. Such a sentence is necessary to deter others from committing similar crimes under the mistaken belief that the financial profit associated with drug trafficking is not outweighed by a realistic threat of significant imprisonment.

...The government asserts the Defendant’s sentence should not be lessened on the basis of his health problems, but does acknowledge that the Court has the discretion to place him in a prison with an appropriate medical facility.

The United States recommends that the Court adopt the advisory sentencing guideline range (108 to 135 months) calculated by the presentence report. The United States further recommends that the Court sentence the Defendant within that advisory sentencing guideline range.

(my emphasis.)

At the sentencing hearing, the Government acknowledged its "whoops" and withdrew its recommendation for 9 to 11 years. The Court said it would disregard its withdrawn recommendation and sentenced Flor to 60 months (5 years.)

Flor filed a Notice of Appeal, deciding to appeal on grounds that the Government breached the plea agreement and he should be allowed to withdraw his plea. He also filed a motion seeking bail pending appeal. The Government said it was obligated under the plea agreement not to oppose the request, but retained the right to present the applicable law to the Court, and then proceeded to cite statutes and cases contrary to each of Flor's arguments.

Still, it gets worse. On August 3, 2012, Mr. Flor’s counsel filed an update on his medical condition for the Judge’s consideration in deciding whether to grant bond pending appeal.

As was mentioned at the sentencing in this matter, the VA was considering placing him on dialysis because of kidney problems. He has developed severe kidney pain and was in excruciating pain. The medical, in general population, will not treat him with any pain medications. They ran a test to determine whether there was any infection in the kidneys, which came back negative and so refused him medical treatment.

And the coup de grace:

Just as of the writing of this reply brief, Mr. Flor was being transported to a medical facility in the federal system. However, in a botched attempt they transported him by vehicle without a walker or wheelchair. Because of this he could not get him into the airplane in order to fly out. He was transported back to Shelby. The pain and suffering of this man continues.

On August 6, 2012, the judge denied Flor’s request for bail, agreeing with the case law cited by the Government. As to Flor's health issues he wrote:

Through inquiries with the BOP and the U.S. Marshals Service, the Court has been informed that the Defendant is believed to have rolled out of bed and fractured his scapula (shoulder blade). There is no extraordinary treatment available or needed for such an injury, other than rest and Naproxen, an anti-inflammatory medication. The Court has been informed that Defendant wore a sling for two weeks after being injured, and he is now considered to be recovered.

The Court notes defense counsel’s update that Defendant Flor’s transportation to a BOP facility has been delayed. While that may be unfortunate, it is not factually or legally significant. (Emphasis supplied.)

Three weeks later, on August 29, 2012, Richard Flor was dead.

Flor's wife and son were also sentenced to prison in the case and thus did not get to see him in his final months. But his daughter, who apparently got to see him right before he died, says:

"They didn’t give him any of the medical attention he needed, and they never took him once to a medical doctor." (My emphasis)

The legal backdrop to Flor's case is just as unsettling. The U.S. Attorney's office investigated and cleared Flor in 2008. The DEA even wrote in a report:

Based upon recent decisions and statements by the Attorney General of the United States, the type of operation being run by FLOR for all intents and purposes is legal in the United States, although it is direct violation of federal law. Based upon the Attorney General's decision not to enforcement [sic]federal laws directed at marijuana growers operating under the auspices of "medical marijuana", and the USAO reluctance to prosecute FLOR, this investigation will be closed.

Flor attended city council meetings to get permits to grow. The news articles are here. They kept books and records, used banks to deposit their sales proceeds, make payroll and pay bills. Just like a legitimate because they thought they were a legitimate business.

From December, 2008 until March, 2009, Montana had 1,500 to 2,000 medical marijuana card holders. Obama took office in January, and Holder gave his speech about not going after medical marijuana users in February. From April to June, 2009, applications for medical marijuana cards shot up to 30,000. Nothing in Montana law had changed. The obvious reason for the huge increase was that thousands of people believed Holder and Obama were promising a pass based on state laws. They relied on it. Here are the statistics.

The DEA decided in 2009 to close the case. But when the parties filed papers with the Secretary of State for an LLC and tried to make a central grow operation, they busted them, just as the Montana legislature was voting on changing the Medical Marijuana laws.

Marijuana doesn't kill people. Being sick in prison does. Leave it to the Justice Department to use prison as a sledge hammer, turning a 5 year bit into a death sentence for a demented, chronically ill elderly man. I'll bet there's a big fat lawsuit over Mr. Flor's death and I won't cry a tear if the Justice Department, U.S. Marshals, the private prison facility that failed to adequately treat him and anyone else involved has to shell out big bucks to clean their hands on this one.

R.I.P. Richard Flor. America, prison nation. Prison for marijuana needs to stop. If you live in a state where it's on the ballot, please don't forget to vote.

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  • Display: Sort:
    Just thinking of all the people involved (5.00 / 4) (#1)
    by ruffian on Sat Sep 01, 2012 at 06:38:41 AM EST
    who watched a man dying before their eyes in the last months and did nothing. If they get sued I'll have about as much compassion for them as the did for Flor.

    There's enough blame here to go around ... (5.00 / 2) (#3)
    by Peter G on Sat Sep 01, 2012 at 09:53:58 AM EST
    U.S. Attorney's Office and Bureau of Prisons especially.  But the judge bears a lot also.  Charles Lovell, age 82 or so, was appointed to the bench by Reagan, and has had senior judge (semi-retired) status for about 12 years.  Given the clear signals in the plea agreement that both sides agreed a less severe sentence was appropriate, and that imprisonment was not required, probation or supervised release with a home confinement was obviously the right disposition.  Seems like defense counsel did about everything they could.  Shame on this judge.

    For further perspective, read Kafka. (none / 0) (#5)
    by Mr Natural on Sat Sep 01, 2012 at 10:52:33 AM EST
    At this point, our widely ballyhooed ideals are road kill.  Still, I have compassion for you and your fellow lawyers who try to navigate crap like...

    " its agreement to recommend a base offense level of 26 and that the Defendant receive a three-level reduction of his advisory sentencing guideline sentence for the Defendant's acceptance of responsibility by the entry of a timely guilty plea in this matter..."


    the entire 20 page plea agreeement (5.00 / 1) (#9)
    by Jeralyn on Sat Sep 01, 2012 at 01:17:20 PM EST
    is filled with language like that. Yet the judge determined Flor, just back from a competency evaluation and who suffered from dementia, understood all the terms. In addition to the sentencing issues, the agreement called for him to forfeit all his money, bank accounts, vehicles, trailer, real estate and pay the Government an additional $288,000. before sentencing.

    This should be more PUBLIC. (5.00 / 4) (#4)
    by womanwarrior on Sat Sep 01, 2012 at 10:47:51 AM EST
    BOP horrible indifference to medical care is, I think, more prevalent than the public knows.  I had a 55 year old diabetic client, who had already lost two feet to amputations, sentenced to 12 years for drug dealing (actually introducing an undercover narc to a dealer).  I brought his medical attention to the court's attention and the court was sanguine about it, although recommending a medical center.  My client did not get sent to a medical center, and he did not last a year before he died of "heart failure."  He did send me letters and cop outs he had filed requesting someone to push his wheelchair to pill line, because he could not get through heavy doorways, or along the long pathways to pill line in the snow.  He detailed missing insulin medication. They also gave him the wrong medication for a time which turned his skin dark. The warden denied his requests and he appealed.  I tried to follow up with BOP regional counsel who brushed me off.  My client died, and his only family was a niece who did not want to pursue anything. It weighs on my heart.  

    What a horrific story (5.00 / 1) (#6)
    by shoephone on Sat Sep 01, 2012 at 12:56:03 PM EST
    Clearly, the eighth amendment to the U.S. constitution has been rendered null and void.

    Holder? Obama replaced an incompetent AG (none / 0) (#2)
    by Mr Natural on Sat Sep 01, 2012 at 08:19:51 AM EST
    with one much more adept at defending his offenses.  FORWARD?

    A change going forward (5.00 / 2) (#7)
    by Jeralyn on Sat Sep 01, 2012 at 01:05:29 PM EST
    would be a huge mistake. Here's Romney on medical marijuana and marijuana in general.

    Here's a clip of Romney in 2007, "I believe marijuana should be illegal in our country." He says cancer patients don't need marijuana, "there are other sources of pain management that work entirely effectively. He says marijuana legalization "is the wrong way to go. We need less drugs in our society" and "I would oppose the legalization of marijuana."

    Here's Romney blowing off questions by a medical marijuana patient in a wheelchair.

    Here's Romney in 2012: Marijuana is a gateway drug, it should not be legal; the use of drugs in this country is leading to terrible consequences; he opposes the legalization of marijuana and other drugs. There are more important issues to talk about.


    Has anyone asked (none / 0) (#8)
    by Zorba on Sat Sep 01, 2012 at 01:17:15 PM EST
    Romney how his Mormon faith affects his views on this?  Because the LDS church prohibits the use of alcohol, and in fact, it even prohibits the use of drinks that contain caffeine.  I cannot imagine that they would be at all okay with the use of medical marijuana.
    So, would he be in favor of making alcohol and caffeine illegal, as well?  Just asking.   ;-)

    Not correct (none / 0) (#13)
    by jbindc on Tue Sep 04, 2012 at 09:09:22 AM EST
    Mormons are not supposed to drink coffee or hot tea.  Caffiene is not prohibited.

    methinks the judge in this case (none / 0) (#10)
    by cpinva on Sat Sep 01, 2012 at 02:14:32 PM EST
    bears some looking at, to see if he too may be suffering from an as yet undiognosed case of alzheimer's/dementia. he's in the right age group, and these diseases disproportionatly affect men, so........................

    i am confused on something, however. per the DEA report:

    the type of operation being run by FLOR for all intents and purposes is legal in the United States, although it is direct violation of federal law.

    how can it be both, simultaneously? if they'd said it was legal, under state law, but illegal under federal law, that would have made sense. but i read this as it being legal in the United States, but then illegal under federal law. possibly, i read it that way because, well, that's exactly what it says. i'm funny that way.

    I couldn't figure that out either (none / 0) (#11)
    by Jeralyn on Sat Sep 01, 2012 at 11:33:30 PM EST
    but that's what it says in the pleading. It is quoting the DEA report and there were a bunch of other typos in the document, so maybe they got the quote wrong.

    Pretty clearly a copying/proofreading error (none / 0) (#12)
    by Peter G on Sun Sep 02, 2012 at 11:19:51 AM EST
    for "legal in Montana."