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

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.

SF Gate/San Francisco Chronicle

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