Probation for dying Iowan in pot case, but where?

DAVENPORT, Ia. -- A dying Iowan who said he grew marijuana to treat a painful blood vessel cancer was spared a three-year prison sentence by a judge Tuesday, and instead was given probation.

But whether Benton Mackenzie, 48, will be able to get the medical cannabis that he says successfully treated his angiosarcoma is unknown. Mackenzie and his family hope his three-year probation sentence can transfer to Oregon — where medical pot is legal — a decision that rests with his probation officer.

Mackenzie, however, hopes his prosecution and the national attention it has drawn will prompt Iowa lawmakers to revisit their positions on medical marijuana. He also plans to appeal his conviction in an effort to get the Iowa Supreme Court to reconsider its decision in a 2005 case that bars Iowans from using claims of medical necessity as a defense to growing marijuana.

"I hope this is the straw that breaks the camel's back, that brings some sanity to lawmakers' decision process," he said after the sentencing hearing. "I hope I'm the last person who has to go through this."

The sentencing hearing came after Mackenzie went to the emergency room Sunday night to deal with painful swelling in his legs. Wrapped in a black sweatshirt, Mackenzie spoke softly with his family behind him outside the Scott County Courthouse in Davenport after the sentencing.

Mackenzie said he was "pretty much convinced" before the hearing he was heading to prison.

Mackenzie was unapologetic in front of District Judge Henry Latham during his sentencing. Authorities had charged Mackenzie with four felonies after a raid last year uncovered 71 marijuana plants that Mackenzie admitted he grew on his parents' property north of Davenport. He was found guilty of the charges during a trial this summer.

Before his sentence, Mackenzie told the judge that he believes in "law and order." But Iowa's laws against his use of medical marijuana put his life in danger, Mackenzie said.

"I have a form of cancer that is not very survivable and I have had tumors disappear under treatment with cannabis oil," he said. "As far as saving my life, that was the only option I had. ... I've proven the decision I made was the right one to save my life."

The sentencing hearing prompted about a dozen people to meet in a park near the courthouse. They held signs with pro-marijuana messages, including "Legalize safe medicine" and "Stop arresting patients." One man held a pot-leaf-emblazoned cross bearing the words "Free Benton Mackenzie."

Brian Beach, 29, a Colorado resident who said he's traveled the country for marijuana activism events, stopped in Davenport to offer moral support to the Mackenzie family, he said. Mackenzie's story has been featured in national media reports.

"I've been following the Mackenzies since this all started," Beach said. "I don't know them personally ... but I look for people who need help, and they need it more than anybody right now."

Libertarian gubernatorial candidate Lee Hieb was also at the sentencing. Afterward, Hieb said she was disappointed that more politicians did not attend.

"We should have the right to choose our own cancer care," she said. "I'd like to see a change."

As he sentenced Mackenzie, Latham said he "sympathized" with the family, but that Mackenzie's actions were clearly illegal.

Even in states where medical marijuana is allowed by law, growing the number of plants that Mackenzie had for personal use would be illegal in "a vast majority" of those states, Latham said.

Thirty-four states and the District of Columbia have some sort of law regulating the use of medical marijuana, according to the National Organization for the Reform of Marijuana Laws. In Iowa, legislators this year passed a narrow law allowing the use of cannabis oil to treat epilepsy; that law did not legalize Mackenzie's actions, Latham said.

"There is every reason to send you to prison today, but what purpose would that serve here today?" Latham said.

Latham's sentence came after prosecutor Patrick McElyea recommended that the judge choose probation rather than prison. Mackenzie faced a mandatory minimum of three years in prison because of his two previous drug convictions.

Mackenzie told the judge that his wife, Loretta Mackenzie, and their son, Cody, had nothing to do with the marijuana operation. Both were found guilty this summer on drug charges.

However, neither will face a prison sentence. Loretta Mackenzie was sentenced to probation; Cody Mackenzie was given a suspended jail sentence on possession charges.

"I feel there wasn't enough evidence to convict me, and my husband's condition is really what this is all about," Loretta Mackenzie told the judge. "I stood by and took care of him in other ways, not assisting in growing his cannabis.

"I just pray that I will be given an opportunity to continue to be with him during his time left on Earth."