Medical-pot backers react to new Obama policy

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Medical-pot backers react to new Obama policy
Bob Egelko, Chronicle Staff Writer
Tuesday, October 20, 2009

SAN FRANCISCO -- Medical marijuana advocates in California said the Obama administration's announcement of new guidelines for pot prosecutions Monday contained some hopeful signs, but lacked the specifics needed to keep patients and their suppliers out of court.

"It's an extremely welcome rhetorical de-escalation of the federal government's long-standing war on medical marijuana patients," said Stephen Gutwillig, state director of the Drug Policy Alliance.

Dale Gieringer, California coordinator of the National Organization for the Reform of Marijuana Laws, said the administration's advice to U.S. attorneys that they respect state law - such as California's Proposition 215, the 1996 measure legalizing medicinal use of the drug - was encouraging.

However, he added, "the policy has major loopholes that give prosecutors broad discretion to determine what they think is legal."

A Justice Department memo, sent Monday to federal prosecutors in California and 13 other states whose laws allow medical use of marijuana, provides guidelines to implement the policy Attorney General Eric Holder announced in March: that federal authorities should refrain from arresting or prosecuting people who are complying with their state's laws.

Federal prosecutors should focus on major drug traffickers and networks, rather than on those who "are in clear and unambiguous compliance with existing state laws" on medical marijuana, said Deputy Attorney General David Ogden.

But he added some qualifications: Prosecutors can go after those who sell marijuana for profit, a category that federal authorities have commonly invoked in charging growers and sellers of medicinal pot.

San Francisco's U.S. attorney, Joseph Russoniello, asserted in August that most of California's 300 marijuana dispensaries make profits, in violation of state guidelines, and are therefore open to federal prosecution.

Ogden also said the Justice Department would fight any effort by people now charged with marijuana-related crimes in federal court to claim that they were simply following state law. And even those who are clearly complying with a state's law can be investigated and prosecuted, he said, in the pursuit of "important federal interests."

'Lot of discretion'

"It leaves a lot of discretion up to the U.S. attorneys," said Kris Hermes of Americans for Safe Access, an advocacy group for patients who use marijuana. "We hope that these guidelines rein in rogue prosecutors like Russoniello. There's no guarantee that's going to happen."

Russoniello's office is prosecuting owners of two Hayward-area medical marijuana dispensaries that were licensed by local governments. In March, after Holder's announcement, federal agents raided Emmalyn's California Cannabis Clinic in San Francisco, which had a city permit. No charges were filed.

Russoniello's office referred inquiries Monday to the Justice Department, where spokeswoman Tracy Schmaler said Ogden's memo was intended to provide "guidance and clarification" to prosecutors and does not change administration policy.

Judges go easy

Since Holder's announcement, prosecutors have told several federal judges in California that the new policy did not justify leniency for marijuana defendants whose cases originated during President George W. Bush's administration.

Judges have nonetheless imposed lighter sentences than the Justice Department wanted, notably a one-year term for a Central Coast pot club operator for whom prosecutors sought five years.

Although Monday's guidelines, like Holder's earlier statement, do not expressly apply to pending cases, defense lawyers will argue to judges that the Obama administration's memo justifies a break in sentencing, said Joe Elford, lawyer for Americans for Safe Access.

He also predicted that some prisoners would cite the memo in asking President Obama for clemency.

The guidelines don't say how federal authorities would respond if California legalized marijuana for personal use, as proposed in an Assembly bill and several pending initiatives. But Gutwillig, whose organization advocates legalization, said he saw a glimmer of hope.

"The Obama administration has taken a further step today to follow the lead of the states on marijuana policy," he said.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle