Feds pose challenge to use of medical marijuana

December 31, 2002

Ian Ith and Carol M. Ostrom. Seattle Times,

BREMERTON - When Monte Levine and Marc Derenzy planted marijuana in the garage loft behind their Bremerton home, they thought they had the blessing of Washington voters. All they wanted, they said, was to quietly grow enough pot to help Levine cope with the pain of a fatal liver disease, and to give lifelong friends Shawn Doyle and Woody Wines something to ease their slow journey toward death from AIDS. The four men say they never expected to get a letter last month from the office of U.S. Attorney John McKay in Seattle promising federal prosecution, no matter how much pot they have. 'I'm afraid of going to prison; I don't want to die in prison,' said Wines, his face gaunt from disease. 'I don't think I deserve to die in prison just because I smoke pot because I'm sick. They have this big war on terrorism, supposedly. So why are they bothering me?' Medical-marijuana users, and their doctors, fear the letter represents a shift in the federal prosecutor's stance in Washington state, from a policy of tolerance just a year ago to a willingness to fight medical marijuana - despite the initiative passed overwhelmingly in Washington four years ago that allows it under state law. Federal prosecutors in Seattle, who have yet to indict any medical-marijuana users, deny any such policy change. They said they target large-scale pot producers and are threatening to pursue the case of the four Bremerton men simply because they repeatedly and openly grow pot, and too much of it. 'It's one thing to raise medical marijuana as a defense,' said Assistant U.S. Attorney Doug Whalley, supervisor of the Criminal Enterprise Division in Seattle. 'It's another thing to flaunt it.' The issue has raised the ire of state and local initiative backers from both sides of the political spectrum; they see the U.S. attorney's apparent willingness to ignore the voter-passed initiative as an affront to the state's right to make its own decisions. And they believe the move could set the stage for raids similar to recent pot-club busts in California. And just as in California, where the debate has become so bitter the state attorney general last month demanded to meet with U.S. Attorney General John Ashcroft, federal law-enforcement agents here have responded by saying the state initiative goes against federal law. 'As far as we're concerned, there's no such thing as 'medical' marijuana,' said Tom O'Brien, spokesman for the federal Drug Enforcement Administration (DEA) field division in Seattle, which covers Washington, Idaho, Alaska and Oregon. 'This has nothing to do with anyone being sick - this has to do with a movement to legalize marijuana,' he said. In 1998, 59 percent of Washington voters passed Initiative 692, which gave people with cancer, HIV, multiple sclerosis, epilepsy, spasms, intractable pain and glaucoma the right to possess and use marijuana, with a doctor's approval. 'The People of Washington state find that some patients with terminal or debilitating illnesses, under their physician's care, may benefit from the medical use of marijuana,' the law says. Washington is one of nine states, including Oregon, California and Alaska, to pass such laws in recent years. Washington's law doesn't specify how patients are to get marijuana, which remains an illegal drug under federal law. Under the state law, a qualified patient or the patient's caregiver can legally possess a '60-day supply.' Over the years, Seattle police, King County prosecutors and civil libertarians have forged policies to help differentiate legitimate patients from those using the law to sell pot, although the exact number of plants a patient or caregiver can possess has remained a contentious issue. 'If someone has a legitimate medical-marijuana need, there will not be a prosecution,' says King County Prosecutor Norm Maleng's spokesman, Dan Donohoe. And former U.S. Attorney Kate Pflaumer, who left after President Bush took office, told local drug agents in 1999 to stop forwarding medical-marijuana cases to her office. And she wouldn't prosecute any pot growers with fewer than 250 plants. Meanwhile, the state Medical Quality Assurance Commission added several diseases to the list of qualifying illnesses, including hepatitis C, a potentially fatal liver disease; Crohn's disease, a painful bowel condition; and any disease that results in nausea, vomiting, wasting or seizures, if the symptoms were unrelieved by standard treatments. Still, the U.S. Supreme Court ruled last year that because federal law sees no medical benefit in marijuana, 'medical necessity' isn't a defense against federal prosecution. In California, agents started raiding marijuana co-ops and arresting nationally prominent marijuana activists. In a speech this month, Secretary of Health and Human Services Tommy Thompson called marijuana 'a clear and present danger to the health and well-being of all its users.' On Sept. 5, agents raided a medical-marijuana cooperative in Santa Cruz, Calif. In response, California Attorney General Bill Lockyer demanded a meeting with Ashcroft and the head of the DEA, Asa Hutchinson, saying the raids were 'provocative and intrusive incidents of harassment.' This summer, a bipartisan bill was introduced in Congress that would allow immunity from federal prosecution in states with medical-marijuana laws and would reclassify marijuana so that it could be prescribed by a doctor. The bill is sitting in a House subcommittee. Levine and Derenzy say they don't sell or give their pot to anyone but Wines and Doyle. When they decided to sprout marijuana in their garage, they say they took great pains to make sure they were doing it just as state voters had prescribed, hanging doctors' notes right on the front door, under a copy of the Bill of Rights. Levine, 56, has long suffered from hepatitis C, and the treatments leave him nauseated and worse. Wines, 48, learned he had HIV, the virus that causes AIDS, in 1986, when his partner died of the disease. He contracted AIDS about 10 years ago, about the same time as his friend Doyle. 'This is a nightmare, but pot helps me cope,' said Doyle, 49. 'My health has been on a steady decline. I'm not a criminal; I'm in the late stages of AIDS. I have no energy and I'm in a tremendous amount of pain.' The men say they can't hold down food - let alone the cocktails of AIDS medications - without smoking some pot for the feeling most recreational smokers call 'the munchies.' And it alleviates the psychological pain of watching themselves die, they say. The men also sometimes take Marinol, a synthetic prescription pill meant to simulate the effects of pot. But they say it's too powerful, like taking a shot of morphine to ease a headache. The men are known for being outspoken in their Kitsap County communities. Levine, who used to work for the county health department, runs a needle-exchange program. Doyle is an AIDS activist who runs a small food bank from his home next door to Levine and Derenzy. They suspect that activism brought Bremerton detectives to their door in July 2001. Police say it was a tip. Detectives said they smelled pot and, despite the doctor's notes, they carted off about 100 plants, from seedlings to mature bushes, as well as growing equipment and personal belongings, court records show. Kitsap County prosecutors charged Derenzy, 54, and Levine with manufacturing marijuana, a felony, and tacked on a school-zone provision because the men live 741 feet from a school-bus stop. That alone would have added an automatic two-year prison term to a sentence. But Kitsap County Prosecutor Russ Hauge dropped the charges in January. 'The defendants had documentation' of their medical needs, said Mike Savage, Hauge's chief trial deputy. 'While 100 plants is a substantial amount of marijuana, the statute provides no definition of a 60-day supply,' Savage said. So we felt we couldn't prove the case beyond a reasonable doubt, despite all the other facts of the case.' Four months later, in May, federal agents showed up and carted off 42 plants, all the grow lights and humidifiers, Levine's computer and other personal items, according to search-warrant documents. Then in August, the men's attorney got the letter from McKay's office. 'This letter is to advise you that if we receive a new marijuana-case referral concerning (Levine) or Mr. Derenzy from state or local authorities, we will accept the case for federal prosecution no matter what quantity of marijuana is involved,' said the letter, signed by Whalley on behalf of McKay. 'At the same time, we will also file federal charges relating to the marijuana seized in July 2001.' A federal conviction for growing as many plants as Levine and Derenzy had in July 2001 could mean a mandatory minimum sentence of five years in federal prison. 'What this represents is a gun at the head of my clients,' said attorney Douglas Hiatt of Seattle, who represents the four men in Bremerton. 'Those are sinister words that say they want to use the power of the federal government to shut down a sick guy and his partner and hurt a couple of other sick people at the same time. That's reprehensible, it's wrong and it's evil.' Whalley says Hiatt and other medical-pot backers really have it backward: 'We target large-scale marijuana growers,' Whalley said. 'If you're growing for medical marijuana, you're not growing hundreds of plants.' The U.S. Attorney's Office generally will not prosecute cases that involve fewer than 100 plants, Whalley said. There are exceptions, he said, depending on circumstances. He wouldn't speak in detail about the Bremerton case. Whalley said the Department of Justice has not told federal prosecutors in Seattle to target medical-marijuana users. In fact, Whalley said, 'they are a small part of our caseload, and getting smaller.' Shifting funds and priorities since the Sept. 11 attacks have forced prosecutors away from drug cases that don't involve large quantities or organized growers, he said. Even so, Whalley said federal prosecutors aren't bound by the state's medical-marijuana law. 'Defense attorneys want to say their client is sick, and they're growing it because they're sick and that this qualifies under state laws,' he said. 'But those issues don't make any difference to us at the charging stage. We charge under federal law and under our own guidelines. An individual who is sick when he breaks the law gets sentenced accordingly. It's something the judge can take into account. It's not a debate we engage in.' As for the Bremerton men, Whalley questioned whether they are growing pot only to treat their diseases. 'I never met a medical-marijuana user who didn't smoke and grow it before they got sick,' Whalley said. The DEA is even more unwavering. As long as Congress lists marijuana as a drug without medical benefit, the DEA will go after people who have it, said Special Agent Will Glaspy, spokesman for DEA headquarters in Washington D.C. 'Unfortunately, in some instances, that puts state law in conflict with federal law,' Glaspy said. News of the U.S. Attorney's Office's letter to the Bremerton men has heightened the fear of doctors who recommend pot to their patients. 'I'm afraid they'll do anything they can to interrupt this movement,' said Dr. Rob Killian, a Seattle family practitioner who treats Levine and who was the architect of Washington's medical-marijuana law. 'That would mean even going after physicians who have the temerity to discuss this with patients, and people who assist patients finding this drug.' Killian said federal agents have been watching him since 1996; pharmacists have told him of federal requests for information on prescriptions he writes, and his patients have been interviewed by agents. Killian said he's given Levine his best medical advice: 'To treat his illness as best he can with the (prescription) medications available.' Some state officials have voiced concerns over the states-rights implications of the Justice Department's stance. 'With all the problems we've got, the U.S. government is worrying about a few ounces of marijuana? It's absolutely asinine,' said state Sen. Bob McCaslin, a Spokane Republican who has been a medical-marijuana supporter since watching his wife die of cancer several years ago. State Attorney General Christine Gregoire has no immediate plans to follow the California attorney general in addressing the issue with the Justice Department, said Joyce Roper, a senior assistant attorney general. 'It's clear the initiative affords protection from prosecution under state law, but the initiative doesn't say that people are immune under federal law,' Roper said In Bremerton, Levine, Derenzy, Doyle and Wines last week tended six bushy pot plants growing in their garage that they have raised despite the federal threat. And they said they're preparing for the worst. 'We're Americans standing up for our rights, and if they want to imprison sick people, so be it,' Levine said. Staff reporter Mike Carter contributed to this report. Ian Ith: 206-464-2109 or iith@seattletimes.com.

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