A judge sentenced cannabis activist Billy Hayes to two years in prison on Friday for his role in two medical-marijuana businesses.
Hayes, 40, is a hero to those who oppose monopolistic practices and tight restrictions in the marijuana industry, and was the subject of a November 2014 feature story in New Times . About 40 friends and family members showed up to support him at the morning hearing, a crowd that included other activists, cannabis-industry workers, a dispensary owner, Jason Medar of the grassroots legalization group Arizonans for Mindful Regulation, and Mickey Jones of Relegalize All Drugs.
For nearly two years, Hayes had fought a raft of charges related to his 2012 and 2013 business ventures. In 2014, he turned down a plea deal that would have put him behind bars for between 3 and 12.5 years.
But in March, Hayes took a new deal after his defenses proved unsuccessful. He pleaded guilty to three counts in two cases, including one count of possession of narcotics for sale, one count of possession of marijuana for sale, and one count of misconduct with weapons. The latest plea deal with the Maricopa County Attorney's Office called for a minimum two-year sentence. Superior Court Judge Carolyn Passamonte could have given him more time, so tension at the hearing was high.
Hayes' wife, Starr, a hairdresser, was in tears for much of the proceeding. Hayes, who has been free on bail, was dressed in slacks, a blue dress shirt, and a tie. Husband and wife held each other close, knowing Hayes would soon be whisked off to prison. Their two young daughters were at home with Starr's mother. Before Passamonte entered the courtroom, Hayes told New Times it was "rough" that he couldn't use the defense arguments he wanted, and that officials still didn't seem to be interpreting the 2010 Arizona Medical Marijuana Act (AMMA) correctly. He admitted that his businesses pushed the envelope in terms of what was allowed under the law.
"Absolutely," he said. "And I would push it again."
When former Governor Jan Brewer canceled the dispensary system voters enacted in 2010, Hayes helped open Arizona's first compassion clubs, where patients could make a donation and pick up "free" weed from other patients. When dispensaries finally opened in 2013, he opened the Cannabis Spot Vapor Lounge in Phoenix, a place where patients could hang out, smoke, or obtain marijuana through a special raffle system he'd devised. He has sued the federal government, unsuccessfully, to rid the AMMA of a rule that stops patients from growing their own marijuana if there's an operating dispensary within 25 miles.
One of his business operations, Arizona Cannabis Society of El Mirage, cultivated marijuana and provided it to qualified patients. Hayes said he's proud of his work making tinctures for the late Zander Welton, a boy who suffered from extreme seizures and whose health care became a matter of law and public debate.
County Attorney Bill Montgomery and other prosecutors around the state had declared that extracts of marijuana, including hashish to make tinctures, remained a serious felony despite the AMMA. With the parents of the boy fearing arrest, the American Civil Liberties Union of Arizona got involved and eventually helped get a court ruling that not only permitted Welton to keep taking his meds, but allowed dispensaries to sell shatter and other concentrates.
Despite the help to sick patients like Welton, Arizona Cannabis Society was raided in 2012. Plants, computers, and a shotgun linked to Hayes, a convicted felon, were seized.
Police accused ACS of running an unauthorized dispensary. A year later, before any charges arose in the ACS case, police raided the Cannabis Spot and arrested Hayes.
After Hayes refused to take a deal in the lounge case, he and five other ACS members were charged with numerous counts related to ACS. The other defendants were allowed to accept plea deals that gave them probation and made them eligible to have their felonies reduced to misdemeanors. Ironically, ACS became a state-authorized medical-marijuana dispensary in 2014, and now sells cannabis legally without fear of a raid.
Hayes wasn't eligible for probation because he has a criminal record. He has been arrested several times for marijuana offenses, and in 2003 served eight months in prison for failing to adhere to probation requirements in one of his pot cases. Born and raised in Detroit, where he was shot at age 14 and stabbed, Hayes was also busted for car theft at age 19.
Judge Passamonte didn't see anything too egregious in Hayes' past. She said the mitigating factors in the case, including his minimal record and support from others, outweighed the one aggravating factor of committing crime for financial gain.
Hayes was represented by attorney Tom Dean for Cannabis Spot and attorney Jason Rosell for ACS. Dean, a pro-cannabis activist himself, became friends with Hayes in the past few years and they occasionally collaborated in writing court motions for Hayes. From the birth of Arizona's medical-pot law, Hayes and others had argued that the AMMA could be interpreted to legalize patient-to-patient sales. Several owners of cannabis clubs tried to use the defense but accepted plea deals in their cases rather than take their chances with a jury trial. Hayes, though, facing up to 12 and a half years in prison, was prepared — with Dean — to argue in front of a jury that the sales at ACS and Cannabis Spot were legal.
Hopes that Hayes would get off scot-free were bolstered in July 2014, when a Pima County judge tossed out the charges against a marijuana dealer, ruling in favor of patient-to-patient sales. But the Arizona Court of Appeals spoiled that defense, declaring in a 3-0 ruling in May 2015 that the law doesn't allow patient-to-patient sales, and that if it did, it would provide "incentive to embark on a sales enterprise."
Dean gave his own "personal testimony" at Friday's hearing.
"Judge, sometimes there's a case that's an exception and deserves mitigated sentencing. That's this case," he said, describing Hayes as having a "compassionate nature."
Hayes became wrapped up in the confusion after the law's passage, and believed firmly that he wasn't breaking the law, Dean said. Hayes' crimes occurred before he had the benefit of knowing how the appeals court would be decided, he said, and if the issue involved interpretations that judges and lawyers could disagree on, it would be unfair to punish a layperson like Hayes too harshly.
Rosell also spoke, saying that Hayes' prior marijuana offenses involved medical marijuana. Hayes has several medical issues marijuana helps with, he said. As previously reported, Hayes has been diagnosed with Crohn's disease and suffers from pain from his old injuries.
"He's been part of championing the movement," Rosell said. "Billy's intentions were true."
Hayes' wife informed Passamonte that the couple will celebrate their 10th wedding anniversary. Hayes is a part-time caregiver for their kids, because she works full time. She described him as an outstanding father.
"He will be well missed," she said.
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Hayes made a brief statement, accepting responsibility in the case but saying he didn't think at the time that he was doing something illegal. He added that he tried to run both businesses as nonprofits under the law.
"There was no money found in my case — there were no profits," he said.
Passamonte fined Hayes $3,660 in each of the two cases and stipulated that he'd have to serve seven years of supervised probation after he's released. With Hayes' record of blowing off probation, that may not prove easy for him. When he gets out, he says, the weapons violation means he can't work in Arizona's medical-marijuana industry. He sees a possible future for him and his family in Nevada, which like Arizona might legalize recreational marijuana later this year. But for now, he has to get through the next two years.
"I love you," he called to his wife and supporters as a bailiff led him out of the courtroom, on his way to prison. "Take care, you guys!"