When Attorney General Eric Holder announced back in March that he would not use Justice Department resources to go after medical marijuana patients and providers in states where it is legal unless they were violating both state and federal laws, he ushered in a new era in the battle over medical marijuana. Since then, the number of DEA raids on providers has dwindled -- if not quite down to zero, still a dramatic improvement over the last years of the Bush administration.
But even in this arguably new era, there is left-over business to take care of from the Bush days, and some from the Clinton days. Medical marijuana providers convicted under federal drug laws remain imprisoned. Medical marijuana providers raided, but not yet charged, have the specter of federal prosecution hanging over them. Medical marijuana providers arrested on federal drug charges remain subject to prosecution. And hold-over US Attorneys from the Bush era continue to prosecute them. Another Bush administration hold-over, Michelle Leonhart, remains in charge at DEA.
According to the medical marijuana defense group Americans for Safe Access (ASA), at least 130 medical marijuana patients and providers are being prosecuted, or have been prosecuted or convicted under federal drug laws. ASA also lists 10 medical marijuana providers currently in federal prison. That list does not include an 11th person, Eddy Lepp, who is now serving a mandatory minimum 10-year prison term, because Lepp defended himself with a religious freedom defense, even though he was growing for medicinal reasons.
Some of the victims of the federal campaign are well known, such as "Guru of Ganja" Ed Rosenthal, who was prosecuted over a permitted grow in Oakland; Dr. Mollie Fry and her partner, Dale Shafer, who were sentenced to serve time in federal prison; Eddy Lepp; and Bryan Epis, the first medical marijuana provider prosecuted by the feds, who served two years of a mandatory minimum 10-year prison sentence before being released on appeal. (Epis has created petitions seeking justice for himself and other medical marijuana martyrs; you can view them here.)
Others are lesser known, but equally deserving of justice -- Ronnie Naulls, for example. Naulls operated a permitted dispensary in Corona, California and paid his taxes, but still got raided and arrested under federal law. Authorities turned his three children over to California Child Protection Services, and his wife was forced to plead guilty to a felony child endangerment count or face federal charges because the couple had marijuana in their home. The couple got their kids back, but Naulls faces a preliminary hearing next week.
Or the multiple people arrested in the San Francisco Sunset dispensary raids in 2005 and the San Diego dispensary raids in 2006. The former netted 33 people, the latter six. All still face federal prosecution.
"We have seen a continuation of the prosecutions that began under Bush," said ASA spokesman Kris Hermes. "This is unfortunate given that they've signaled a change in federal policy. Nor is there any evidence they will pardon or commute sentences or stop prosecuting those people indicted under Bush but who have not yet completed the prosecutorial process."
"What needs to be done is that the Justice Department should review all those cases in light of current policy and rethink the pending prosecutions of those people who would have been left alone based on the policy now being enforced," said Bruce Mirken, communications director for the Marijuana Policy Project. "I am sure there are at least some whose actions appear legal under state law. It would be nice to see those folks left alone and no further tax dollars wasted persecuting them. It would also be nice to see the use of presidential pardon power in those cases who would not be prosecuted now have already been sentenced and are sitting in federal prison."
But Mirken isn't holding his breath. "I wish I thought that was going to happen immediately, but Obama's saving his political capital for other stuff," he said.
One key to seeing real change from the federal government is getting real change in the federal government. With Bush appointees still in place at DEA and in the US Attorney positions, the Bush era prosecutions continue, and so do the raids.
"Obama is really behind on that," said Dale Gieringer, director of California NORML. "As I recall, Bush appointed Asa Hutchinson DEA director in August 2001, and here we are in October of Obama's first year and there's still a Bush appointee there. I recall very specifically that we saw the first raids orchestrated by US Attorneys within a couple of weeks of 9/11. That's when they went after Dr. Molly Fry and the Los Angeles Cannabis Resource Center. It only took until September of his first year for Bush to have an aggressive new team in place, but so far under Obama, we have nobody new at DEA and no new US Attorneys. In Northern California, the US Attorney is still the same guy who was appointed by Reagan. The rate of change is disappointing," Gieringer said.
State court is where these medical marijuana cases belong, said the ASA spokesman. "Our position is that the federal government doesn't need to prosecute any medical marijuana cases in federal court," said Hermes. "If they think there is a violation of state law, they should leave it up to the state courts to adjudicate that. As long as they're in federal court, the government won't be debating whether the defendants were in compliance with state law -- they don't even have to address that, and they won't, because it would hinder their chances of obtaining convictions. There is no role for the Justice Department in prosecuting state law violation medical marijuana cases in federal court," Hermes argued.
For those already convicted, it's too late for state court. The only relief they are even remotely likely to see is a presidential pardon or commutation.
"I have this goal of getting Eddy Lepp out before his sentence expires," said Gieringer. "But to get out prison, you have to apply for a pardon. My understanding is it's sort of up to the prisoners and their attorneys to get that together. I don't know that anyone has started on that project yet."
Not yet, but it looks like one is in the works. "We're looking at mounting a campaign to win pardons for those people currently serving federal sentences," said Hermes, noting that some of them are doing as many as 20 years.
But don't count on the Obama administration to take the initiative, said Gieringer. "We're in a period of benign neglect," he said. "Obama is weaker now and less interested in these issues. He's not inclined to do anything, unlike Bush, who was forceful and assertive in the wrong directions. Now, there's a different dynamic going on. We're going to have to push as hard as we can, and hopefully we can get Obama's attention."
In the meantime, some nonviolent medical marijuana patients and providers rot in federal prison, others are having to continue to fight their federal prosecutions, and even more -- those raided but never (not yet) charged -- possibly face the same fate. We won't be to a new era until we take care of this old business.