Pot farmer dies in prison; attorney points to mandatory minimums

POSTED: 1:03 PM Feb 12 2013   UPDATED: 3:39 PM Feb 12 2013
BOZEMAN, Mont. -

Between 1980 and 2010, the percentage of Americans incarcerated in this country tripled, but here in Montana, we witnessed an even greater jump.

Some legal analysts say the boom in prison populations started when mandatory minimum sentences were enacted in the 1980s.

For example, since the 1986 Drug Abuse Act, someone caught with 500 grams of powder cocaine and convicted in federal court will automatically serve at least five years in prison.

Supporters of mandatory minimums say they create consistency in sentencing, so that a judge can't give one person probation and another person 20 years in prison for the same crime.

They also say the laws prevent people from using drugs and keep drug users off the streets.

Critics argue mandatory minimums have undermined a judge's ability to use common sense and compassion in a sentencing and scared the potentially innocent into accepting plea deals.

Kristin Flor says one of those people was her 68 year old father Richard.

"Who in this country deserves to die shackled to a bed over marijuana?" she said. "Nobody."

Richard Flor lived with an advanced aneurysm in his brain, collapsed discs in his back, a failing heart in his chest and an elaborate medical marijuana farm in his home.

Defense attorney Brad Arndorfer says his client thought he was following the letter of the law. "Here we have a guy who believes the federal government when they say 'if you comply with state law, we won't prosecute you,' believed everything he was doing was legal."

But it wasn't. In 2011, the feds busted Richard and two dozen other medical marijuana providers. Two of Flor's partners pleaded guilty, rather than face the mandatory minimum sentence that would accompany a conviction. Neither received prison time.

"We took the position that Richard Flor isn't going to survive jail time," Arndorfer said. So he cut a deal with federal prosecutors.

"They made an agreement not to make any arguments at sentencing [for jail time], and assumed the judge would not incarcerate somebody like that," he said. "Unfortunately they forgot."

The U.S. Attorney's office wouldn't talk on camera, but confirmed via email that it did agree not to push for a specific sentence. But then -- in a memo to Judge Charles Lovell -- prosecutors asked for 9 to 11 years.

A spokeswoman wrote, "The Assistant United States Attorney filed a notice with the Court of the error and requested that the Court disregard any reference to a specific sentencing recommendation."

But Arndorfer argues the damage was done, convincing Lovell that federal prosecutors wanted Flor in prison. His sentence -- five years.

"I was floored," he said. "When I was standing in the courtroom and the judge gave him jail time, you could have knocked me over with a feather. It was unbelievable to me."

He argues that mandatory minimums have made prosecutors the most powerful people in the justice system, and created a culture in which some judges feel it's their job to put people in prison and keep them there.

"The federal system has no rehabilitation goals at all," Arndorfer said.

We dug into data kept by the Bureau of Justice. In 1980, about 220 people out of every 100,000 Americans were incarcerated. By 2010, that number had more than tripled. An even bigger increase here in Montana -- in 1980, 96 prisoners were in custody for every 100,000 people. In 2010 -- 376.

"There's no compassion or individual look at who this person is and what they need," Arndorfer said.

But the U.S. Attorney's Office disagrees, arguing Flor's punishment fit his crime. They say he not only broke federal law by selling and growing marijuana, but also broke state law. Flor was accused of selling to undercover DEA agents who were not medical marijuana patients, selling more than the maximum amount allowed, growing and selling hashish and possessing and selling firearms illegally.

"Despite Mr. Arndorfer's assertions, the 'culture' of the United States Attorney's Office for the District of Montana is one rooted firmly in the pursuit of justice," a spokeswoman said in a written statement.

"The individuals that prosecute cases in the District of Montana are some of the finest lawyers in the state of Montana. Any assertion that their tireless efforts at enforcing federal law are directed by anything other than an innate sense of right and wrong is simply false."

After Flor's conviction, Kristin begged Judge Lovell to release her father, pending appeal. Flor now suffered from dementia and complained of unbearable pain. The judge said no.

"My dad was half dead before they sentenced him," Kristin said.

Three months after his sentencing, Flor was dead. Kristen said he suffered two heart attacks and failure of the liver and kidneys. She added that upon autopsy, doctors found metastatic cancer in his colon.

Lovell said in a statement: "I was sorry to learn of the passing of Mr. Flor. Judicial ethics prohibit further response."