Source: San Francisco Chronicle (CA)
Author: Bob Egelko
Medical Marijuana
FEDERAL POT CASES ON THE INCREASE
Despite Administration's Promise, Those Following State's Laws Face Charges
When the Obama administration declared 18 months ago that it would stop arresting people who complied with their states' medical marijuana laws, advocates were encouraged but wary, saying pot patients and their suppliers were still at risk of federal prosecution.
In a new report, the advocacy group Americans for Safe Access said its caution was justified: Prosecutions have continued unabated, and the number of raids has increased.
Since the Justice Department announced its guidelines in October 2009, the report said, federal agents have raided 87 growers and dispensaries in states that allow medical marijuana, compared with just over 200 raids in the eight years of President George W. Bush's administration.
Only a handful of those raids have resulted in criminal charges, the report said. But it said the Obama administration is pursuing cases it inherited from Bush-appointed federal prosecutors, even if the defendants wouldn't have been arrested under the new policy.
One such case takes center stage Monday, when medical marijuana patients and activists Mollie Fry and Dale Schafer are scheduled to enter federal prison.
The couple, who live in the El Dorado County town of Cool, secured the Sheriff's Department's approval in 1999 to grow marijuana for themselves and other patients. They said it was a small garden that never grew more than 44 plants in a year.
But federal agents raided them in 2001 and they were eventually convicted in 2007 of conspiring to grow at least 100 plants over several years, a crime that carries a mandatory five-year sen-tence.
Obama administration lawyers successfully defended the sentence before a federal appeals court last year. Fry and Schafer have appealed to the U.S. Supreme Court and have also asked President Obama for clemency.
"We were complying with California law. We just did this 10 years too early," said Schafer, 56, an attorney who used marijuana for back pains and hemophilia before his arrest. His 54year-old wife, a physician, used the drug to counter the effects of chemotherapy for breast cancer.
2008 Remarks
Obama said during the 2008 presidential campaign that it was "entirely appropriate" for states to legalize the medical use of marijuana "with the same controls as other drugs prescribed by doctors." Americans for Safe Access says the president's actions haven't matched his words.
Justice Department spokeswoman Tracy Schmaler declined to comment on the group's findings, but said the government is following its announced policy.
Federal authorities are concentrating on "large-scale traffickers who violate both federal and state law," she said in a statement. "We are not focusing the limited resources we have on individual patients with cancer or other serious diseases."
On the other hand, Schmaler said, "we are not going to look the other way while significant drug-trafficking organizations try and shield their illegal efforts from investigation and prosecution through the pretense that they are medical dispensaries."
At Odds for Years
States with medical marijuana laws, starting with California's Proposition 215 in 1996, have coexisted uneasily with agents and prosecutors enforcing the federal marijuana prohibition.
President Bill Clinton's administration won a U.S. Supreme Court ruling shutting down an Oakland pot dispensary and tried unsuccessfully to revoke the federal prescription licenses of doctors who recommended the drug to their patients.
The Bush administration stepped up raids in medical marijuana states in the early 2000s and included nonprofits, like Fry and Schafer's garden and a larger cooperative in Santa Cruz, among its targets.
Obama declared a new policy of deferring to state laws early in his administration, and formalized it with the Justice Department guidelines.
But marijuana advocates say the guidelines offer little help to defendants, because they aren't legally binding.
Open to Interpretation
The Justice Department has largely left their interpretation up to local U.S. attorneys. They have leeway to decide when a marijuana grower or supplier - even one with a local government permit - is exceeding the bounds of state law.
Federal prosecutors "can claim state law violations and judge whether state law violations have occurred," said Kris Hermes, spokesman for Americans for Safe Access. As a result, he contended, the Obama administration can "carry out the same practices that Bush did."
In San Francisco, former U.S. Attorney Joseph Russoniello, a Bush appointee, maintained his hard-line stance on pot prosecutions after Obama took office. He said most California suppliers were commercial enterprises that violated state law, which allows only patients and their caregivers to grow marijuana.
Russoniello filed charges against a Hayward dispensary that had a sheriff's permit, and agents during his tenure raided a San Francisco medical-marijuana outfit that had a permit from the city.
Melinda Haag, an Obama appointee who succeeded Russoniello in August, has continued the Hayward prosecution. No one has been charged in the San Francisco case.
Haag also told Oakland City Council members in February that a plan to legalize large indoor marijuana farms would violate both state and federal law. The council, which had received similar advice from City Attorney John Russo and Alameda County District Attorney Nancy O'Malley, has put the proposal on hold.
The Obama administration has also opposed attempts to broaden state marijuana laws.
Less than three weeks before Californians voted in November on Proposition 19, which would have legalized marijuana for personal use, Attorney General Eric Holder said the government would "vigorously enforce" federal laws against growing pot for recreational purposes.
Support Falls
Polls showed that support for the measure took a nosedive after Holder's warning.
The administration also opposed legislation in Washington state that would legalize and regulate medical marijuana dispensaries.
After both legislative houses approved the bill, Democratic Gov. Chris Gregoire asked the state's two U.S. attorneys for guidance. They replied April 14 that state regulators who authorized commercial marijuana suppliers could face federal criminal charges.
Gregoire said she couldn't sign such a bill. The measure's author, state Sen. Jeanne Kohl-Welles, D-Seattle, is urging her to reconsider.
"I cannot fathom that the Obama administration would direct their U.S. attorneys to send out federal agents to arrest and prosecute state employees," Kohl-Welles said in an interview.
