Hundreds of local residents every year get wrapped up in the serious criminal laws for cultivating cannabis.
Those who grow their own can face an array of penalties. In New Jersey, growing more than 10 plants brings the most serious charges. In Pennsylvania, growing even a single seedling is considered a felony.
But there is a big difference in how both states treat underground cannabis farmers.
Convictions are easy for prosecutors to win. The sentences imposed are at the discretion of judges and range across the board from light to draconian.
The No Garden State
In 2012, Ocean County resident Jon Peditto got caught growing 17 marijuana plants near his home. Prosecutors piled on the charges: Possession with intent to distribute, possession of more than 50 grams, and the most serious charge, maintaining and operating a drug manufacturing facility.
That final offense is the most serious and can earn a maximum of 20 years in prison.
Peditto, a wedding photographer, refused to take a plea deal and brought his case to trial. He was unapologetic, represented himself in court and hoped that the jury would exonerate him.
The result was not favorable. The jury acquitted him on the distribution charge but convicted him on possession and the manufacturing facility statute.
On Jan. 29, Judge James Blaney sentenced Peditto to 8 years in state prison. He will have to serve 2 and 1/2 years before being eligible for parole.
The case was eerily similar to a 2009 case involving multiple sclerosis patient John Ray Wilson that made national headlines.
Wilson was caught growing 17 plants behind his Franklin, N.J., home in 2008 when a National Guard helicopter on a training flight spotted the secret garden. Wilson always maintained that the plants were for his personal, medical use. New Jersey's medical marijuana bill was still being debated at the time in Trenton.
Prosecutors also brought the charge of first-degree "maintaining or operating a drug manufacturing facility." He also refused to take a plea deal.
Wilson's attorney James Wronko described the statute to me at the time. "As initially enacted, this offense did not apply to marijuana. The statute was later amended in 1997 to include facilities dealing with large amounts of marijuana. For an unknown reason, the legislature then concluded that 10 or more plants could constitute the ‘large amount of marijuana.’ At the same time, the legislature determined that one who manufactured or grew marijuana in quantity of 10 to 49 plants would be guilty of a second degree and 50 or more plants would constitute a first degree charge.”
Seventeen plants would seem to have put Wilson into the category of a second-degree offense. But, as Wronko explained, prosecutors often up the ante.
"The Attorney General’s Office has argued and the trial court has agreed, that a person who grows marijuana on two or more days is guilty of the first degree offense of “Maintaining a Narcotic Production Facility,’” said Wronko.
Obviously, marijuana plants will take longer than one or two days to grow. Thus, New Jersey prosecutors have the discretion to use the very serious first-degree offense in nearly any case that involves marijuana cultivation.
Wilson was not allowed to bring up his medical condition during the trial or offer expert witnesses as to the benefits of medical cannabis.
Ultimately the jury did not convict Wilson of the most serious charge. Instead was found guilty of manufacturing more than 10 plants and sentenced to five years in state prison.
The NJ Court of Appeals upheld the conviction. Wilson then appealed to Gov. Chris Christie for a pardon.
Christie, with his signature callousness, refused.
Christie went even further on his Ask the Governor radio program on NJ 101.5 in Feb 2012 saying, "His diagnosis has been brought into question as to whether he really has MS or not."
In response, Wilson made his medical records public. They included MRI scans from Robert Wood Johnson Medical Center showing that the telltale lesions associated with MS were growing.
John Ray Wilson spent five months behind bars before exiting on parole into the Intensive Supervision Program in June of 2012.
When New Jersey's medical marijuana law was passed in 2010, it was the first in the nation that did not allow patients to cultivate. Instead, patients can only buy from the six approved Alternative Treatment Centers that took years to become operational.
Kevin Gooler of Pleasant Mount, Pa was convicted Feb. 18 for growing 112 marijuana plants behind his barn. A police helicopter looking for a missing teenager spotted the garden last September.
Although growing any amount of marijuana plants in the Keystone State is a felony, the sentences levied are usually much lighter than those dispensed in New Jersey.
Gooler will serve 30 days in jail and 6 months under house arrest. This isn't uncommon.
A 2013 US Supreme Court case, Alleyne vs. United States, had an immediate impact in Pennsylvania.
Criminal defense attorney Patrick Nightingale of Pittsburgh explained that, "Courts in Pennsylvania have generally taken the position that Alleyne invalidated mandatory minimums."
Even before that federal ruling, it was not common for Pennsylvania’s underground cannabis cultivators to end up with years in prison.
There are standardized sentencing guidelines for judges to follow.
"With marijuana, the number of plants will determine the Offense Gravity Score [OGS] from 1 for simple possession to 10 for 5,000 or more plants or 1000 or more pounds. For between 50 and 4,999 plants the OGS is 8," Nightingale explained.
"With an OGS of 8 and no priors, the usual sentence is between 9 to 16 months in prison. Or it can go down to 6 months if mitigated. This would leave open the possibility of 6 months house arrest. It can also go up to 19 months in aggravated circumstances."
Nightingale said getting caught with 17 plants in Pennsylvania could lead to "generally house arrest with work release and probation."
"Pennsylvania does not treat distribution or manufacturing of cannabis the same as it does other hard drugs," Nightingale said.
Growing cannabis is a reasonable alternative to utilizing the underground market in states where prohibition remains. Street prices for marijuana in Pennsylvania and New Jersey are some of the highest in the nation at between $350 and $450 per ounce for top quality buds.
Meanwhile with a modest investment in lighting and other equipment cannabis can be grown for about $40 per ounce. Growing in the sun brings the price down even more.
Adult consumers tend to plant some seeds not just for the cost savings but also for consistency. Knowing that plants are free of pesticides and the exact strains spouting from the soil is important.
Medical patients already have heavy expenses or may be living on disability. Dealing with serious illnesses. they often can not afford street prices or the high cost of regulated dispensaries. New Jersey's legal medical marijuana costs about $500 per ounce.
That makes some patients take the risk.
Ken Wolski, a registered nurse and director of the Coalition for Medical Marijuana New Jersey, said home cultivation is important for safe access.
"Patients can produce their own medicine for pennies and it is still under the supervision of physicians," said Wolski. "It really represents a revolution in healthcare."
Unless you get caught.
The full legalization bills pending in both Pennsylvania and New Jersey would allow modest home cultivation.