Maine Farmer Who Used Marijuana to Treat Depression Should Get Reduction in Sentence, First Circuit U.S. Court of Appeals Rules

MEDICAL MARIJUANA May 1996

The U.S. Court of Appeals for the First Circuit ruled on January 19 that a Maine farmer should get a downward departure in his sentence on marijuana charges because he believed that smoking marijuana was the only way he could avoid depression and suicidal thoughts (U.S. v. Carvell, 74 F. 3d 8 (1st Cir. 1996)).

Acting on a tip, police raided the farm of 50-year-old William H. Carvell and found marijuana plants, seeds, and smoking paraphernalia. Carvell pleaded guilty to manufacture of 468 kilograms of marijuana. He told the court that the marijuana on his farm was for his personal use to treat his depression. In 1968, Carvell was diagnosed with chronic depression. The medication prescribed to him made him very ill, and his doctor suggested he try smoking marijuana. Carvell told the court that marijuana alleviated his depression and thoughts of suicide, so he did not seek further medical attention.

He had been arrested in 1970 and 1988 for sale of marijuana, and was sentenced to 9 months and five years for those offenses. While serving one of the sentences, Carvell said, a prison psychiatrist told him that marijuana relieved depression.

Because he cooperated with the police on the current charge, Carvell was released from jail until his sentencing with the agreement that he not use marijuana. He became depressed and suicidal and was admitted to the Maine Medical Center, where he remained for two weeks. When he was released, he told the court that doctors there prescribed medication that helped his depression:

The only reason I used marijuana was to keep from being suicidal, and that now I have found proper medication that really works. ... I don't believe that I would ever be tempted ... in breaking the law to treat my depression.

The district court found Carvell's belief that he would try to kill himself without the marijuana credible. The sentencing issue before the court, then, was whether it was within the power of the court to grant a downward departure. The district court found that Carvell should be granted a downward departure under the "lesser harms" provision (section 5K2.11 of the Sentencing Guidelines, "a defendant may commit a crime in order to avoid a perceived greater harm ... a reduced sentence may be appropriate, provided that circumstances significantly diminish society's interest in punishing the conduct"). However, the court also found it was prevented from granting the departure under this section because of the "drug dependence" section of the Guidelines (section 5H1.4). That section states that departures are not appropriate for defendants with drug or alcohol dependence or a history of abuse. The district court sentenced Carvell to 70 months, disallowing the downward departure to 60 months.

The Court of Appeals found that the district court did have the power to grant the ten month downward departure:

Here, where the record clearly demonstrates that the alternative to Carvell's marijuana use might well have been the taking of his own life, the interest in punishment or deterrence of drug manufacturing could reasonably be thought to be reduced. In contrast, in the ordinary drug dependence case, it is difficult to see how that limitation in section 5K2.11 could be avoided.

The court found that Carvell's depression predated and caused his drug dependence, not the other way around. Therefore, the court is not limited by 5H1.4.

Carvell had also argued on appeal that under the U.S. Supreme Court's ruling in U.S. v. Lopez, 115 S. Ct. 1624 (1995) finding a limit to Congress' power under the interstate commerce clause, the statute on manufacture of marijuana is invalid. "We decline to go down that path," the Court of Appeals wrote in its ruling.

[For a copy of this decision, contact the NewsBriefs office. The decision is not available on the First Circuit U.S. Court of Appeals World Wide Web page. For more information about the case, contact Carvell's attorney James R. Bushell, 17 South Street, P.O. Box 7485, Portland, Maine, 04112, 207-871-0036.]