WASHINGTON -- In the face of public pressure, the Department of Justice will allow Jerry Duval, a seriously ill medical marijuana patient, to serve his 10-year sentence for marijuana-related offenses in a federal facility capable of meeting his medical needs, Duval told HuffPost Monday. The DOJ originally sentenced Duval to standard federal prison despite a judge's recommendation that his medical condition be taken into account. Duval had been barred from presenting his medical condition, or any discussion of state law, during his trial, according to court documents.
Duval, whose juvenile diabetes led to both a kidney and a pancreas transplant, also lives with glaucoma and neuropathy. He has a strict medical regime, which prior to his arrest had included medical marijuana. That regime will now be the responsibility of taxpayers and the Federal Medical Center in Devens, Mass., where Duval may stay in a cell similar to the one currently occupied by Boston bombing suspect Dzhokhar Tsarnaev: a 10-by-10 foot steel room. The DOJ confirmed its decision to move Duval to the federal medical facility rather than standard federal prison, and Duval has been "ordered to surrender" and report to the facility by June 11.
"I've never even been out east," Duval told HuffPost.
Despite his conviction for marijuana distribution, court documents indicate that Duval, 53, has followed medical marijuana laws in his home state of Michigan that have been in place since 2008.
The threat to Duval's health is real. In August, Richard Flor, a seriously ill 68-year-old Montana man, died in federal custody while serving a five-year sentence. The DOJ did not heed his attorney's health-related warnings. "It is anticipated he will not long survive general population incarceration," his attorney had said. Flor was swept up in a series of federal raids just as the Montana legislature was debating reforms to the medical marijuana law. The raids tilted the politics of the debate in the DOJ's favor as it lobbied to roll back the law.
A HuffPost/YouGov poll conducted in December found that 58 percent of Americans think the federal government should exempt from federal drug law enforcement any adults following state laws in the states that have legalized medical marijuana. Only 23 percent said the federal government should enforce its drug laws in those states the same way it does in any other state.
The cases against Duval and Flor are part of a broader use of power by the DOJ. Under Attorney General Eric Holder, the department has managed a string of victories against the elderly, sick and infirm, though it has been less successful prosecuting Wall Street executives. Beyond Flor and Duval, an 82-year-old nun protesting nuclear power and a young Internet activist accused of attempting to share academic journal articles are among the targets Holder's DOJ has pursued with vigor. The department has also targeted a Fox News journalist for acts of reporting, issued a sweeping secret subpoena for a large swath of Associated Press phone records and prompted young men with radical inclinations to confess to undercover FBI agents that they would be willing to participate in a terrorist plot.
In the case of Duval, Michigan law allows a medical marijuana caregiver to grow up to 72 plants for five registered patients. Duval had two greenhouses on his property, where exactly 174 plants were seized, according to federal court filings. Those greenhouses were run not by Duval, but by his children, Jeremy and Ashley Duval, who were registered as caregivers and served five patients each. Their father was one patient.
Jeremy has been prosecuted and is currently serving a five-year sentence in a federal prison in Morgantown, W.Va. He was offered a reduced sentence if he would testify against his father, Duval said, but Jeremy declined. Ashley was not charged, despite openly admitting to her involvement. Meanwhile, the DOJ is attempting to seize the Duval family farm.
"Prosecutorial discretion was used" in not charging his daughter, said Gina Balaya, a spokeswoman for the U.S. Attorney's office that handled the case. She said she could not comment on whether a reduced sentence was offered to Jeremy, Duval's son, in exchange for testimony.
"The US Supreme Court ruled that state laws are not relevant to federal narcotics laws," Balaya said in an emailed statement to The Huffington Post. "Ignoring this rule and the law, Gerald Duval –- who has a prior conviction for a federal cocaine conspiracy –- and his son, Jeremy Duval, tried to use the Michigan Medical Marijuana law as a front to cover their lucrative narcotics business. Defendants’ real purpose was not giving marijuana to patients; they were selling it for profit to non-patients. The jury even saw defendants’ drug ledger showing defendants had sold about $300,000 worth of marijuana to non-patients in the months before the search warrant. A federal jury rejected their ruse and convicted both defendants of four counts of violating federal narcotics laws."
Duval said that he and his son are appealing their convictions, arguing that they should have been able to present evidence showing that they were in compliance with state law. They also noted that a local law enforcement official inspected their operation in September 2010 and made recommendations to improve it, including additional signage, and signed off on its compliance with Michigan law. That same officer went to work for the Drug Enforcement Administration under the DOJ, and was involved in the subsequent raid on their property just a few months later, Duval said. Duval will argue in his appeal that the agent's involvement amounts to entrapment.
On Tuesday, Duval will travel to Detroit for a press conference hosted by Americans for Safe Access, with other medical marijuana patients and caregivers who are on their way to jail despite their professed compliance with state laws.
Among other things, Duval is worried about pain management in the federal facility, where medical marijuana won't be available. "It tremendously helped the neuropathy, especially in the evenings. It did wonders before bed," Duval said. "Marijuana made my life a lot easier. Without it, I don't know what's going to work for the neuropathy in the legs."
Duval said that he remains hopeful that when the federal government eventually changes its marijuana policy, it will apply retroactively to people who continue to be imprisoned.
"I feel like the federal government's going to have to change the policy. I'm hoping something's going to happen," he said. "I'm trying to remain positive."