April 12 2018 11:45 AM

Pot playing a role in Dems’ AG choice

The two leading candidates for the Democratic nomination for Michigan attorney general are facing a smell test when it comes to their positions on marijuana.

Labor is playing a big role as usual, but when Democrats gather in Cobo Hall in Detroit on Sunday, Dana Nessel and Pat Miles’ track records on pot prosecutions will be a hot topic. Nessel is best known as a civil rights attorney who represented the Michigan lesbian couple whose suit helped pave the way for the U.S. Supreme Court ruling legalizing same-sex marriage. Miles was the U.S. attorney for the Western District of Michigan under President Barack Obama. Detroit attorney Bill Noakes is also running.

While Nessel and Miles are both rolling into the convention with big endorsements from labor, it’s a battle for the pro-cannabis vote that is playing out as a fistfight.

As a former Wayne County assistant prosecutor from 1995 to 2004, Nessel handled the cases of 95 defendants charged with one or more marijuana-related crimes. Many included multiple charges beyond marijuana, such as possession of cocaine or weapons, or allegations of writing bad checks.

Altogether, Nessel’s work resulted in 50 of those defendants being convicted, either by trial or plea deal, of marijuana-related crimes.

That works out to be over 10 cases a year charged, and five convictions a year.

“There simply was no discretion I held as an assistant prosecutor in the 1990s and early 2000s as to these matters, unlike Mr. Miles, who was the chief decision-maker in his office when he chose to prosecute a number of people under federal law in 2012, when those individuals were actually compliant with the Michigan Medical Marihuana Act and the state authorities were unable to bring a case a result,” said Nessel in an email. “Worse, Miles prevented those defendants from even presenting their state law defenses in the case.”

Miles has been the target of ire by the pro-cannabis community for his prosecution of the “Okemos 7.” That was a group of men convicted and sent to federal prison under federal law in 2013 for their medical marijuana cooperative grow operations in Meridian Township. The investigation authorized by Miles included the Drug Enforcement Agency, the Internal Revenue Service and the Bureau of Alcohol, Tobacco and Firearms.

As the U.S. attorney, Miles had the prosecutorial discretion to waive federal law enforcement off the case. Court records and contemporary reporting remain unclear why that did not happen in light of a 2009 memo from Obama directing federal enforcement actions be withheld in instances where marijuana was legal and the targets were compliant with state laws.

The comparison of the two records is not necessarily an apples-to-apples one, said Jamie Lowell, a board member of MI Legalize.

“These are very different,” he said. “Miles had the ability to not prosecute. There’s absolutely no comparison.”

He said his group has brought in at least 300 pro-cannabis voters to the party in advance of the convention.

Miles’ campaign manager, Abby Clark, called the comparison “apples to a bushel of rotten apples rancid with hypocrisy.”

She pointed to Nessel’s prosecutorial record as evidence.

“Not only has she not always been progressive, she was on the very front lines of prosecuting people, many of them minorities, on minor drug offenses,” Clark said. “She has told supporters she wasn’t comfortable prosecuting marijuana cases so she moved to other divisions, but her last two years in the prosecutor’s office were the two that she prosecuted the most marijuana cases.”

In fact, of the 95 cases related to pot Nessel handled, 27 occurred in 2003 or 2004, her last two years as a prosecutor. That’s just over 28 percent of all her marijuana-related cases during her career. Of those 27 cases, 15 resulted in a guilty finding related to the marijuana charge, while 12 resulted in a dismissal of the marijuana charge.

Nessel said she didn’t decide on the charges she prosecuted.

“As an APA, I was never the chief decision-maker on any of these cases, unlike Pat,” said Nessel, “who filed charges against seven people who were not violating state law.”