A smokescreen for criminals

October 19, 2007

Bryan Denson, The Oregonian

Oregon's medical marijuana program has grown colossally in recent years, with autumn harvests so robust it scarcely resembles the modest enterprise approved by voters in 1998.

The Oregon Medical Marijuana Act was sold to voters nine years ago with the prediction that about 500 people a year would apply to get relief from debilitating conditions such as cancer, glaucoma, HIV and multiple sclerosis.

Today, the program has swelled to 14,831 patients, with 1,700 filing new or renewal applications each month, including a few diagnosed with common afflictions such as asthma, back pain and menstrual cramps.

An additional 7,178 medical marijuana cardholders are caregivers who assist patients. Lawmakers updated the program two years ago, adding a new class of third-party growers who now number more than 4,000.

The explosive growth of the Oregon Medical Marijuana Program, coupled with mass cultivation and the seduction of selling cannabis on the black market for $2,500 a pound and higher, also has provoked extensive abuse.

The state Department of Justice polled seven sheriff's departments across the state last year and estimated that 40 percent of medical marijuana growers had violated one or more laws, most often growing too much. Oregon State Police say 15 of the 46 illegal crop seizures they took part in last year involved medical marijuana growers.

Two weeks ago, a state trooper stopped a motorist on Interstate 5 near Aurora carting 49 pounds of just-harvested marijuana home to Gervais. The driver, who was a patient and grower for two others, was allowed to drive away with 4.5 pounds of pot because of the 2005 law, which also upped possession limits.

Police and prosecutors say the program is out of control.

"The manner in which this statute is written, in my opinion, is a blueprint for drug trafficking," said Katie Suver, a deputy district attorney in Marion County. "And I believe that the general populace, when they voted it in, thought what they were doing is helping really sick people."

Patient advocates concede that a few criminals have tainted the program, using it as cover to sell cannabis illegally. The greater problem, they say, is that legions of sick people can't get the marijuana they need.

"There's 10 times more demand than there is supply," said patient and registered grower Don DuPay, a former Portland homicide detective who lost 135 plants when authorities raided several grow sites in June.

Voters are likely to decide the program's future next year. Supporters are pushing ballot initiatives to expand the law with cannabis dispensaries, and opponents have drafted a measure to repeal the law.

In the meantime, law enforcement officials say some of the program's vagaries are exasperating:

Convicted drug dealers are permitted to legally smoke, carry and grow medicinal marijuana -- so long as their crimes occurred before Jan. 1, 2006.

Patients can legally cultivate six mature marijuana plants larger than 12 inches tall and 12 inches across. But there is no maximum size, and growers in southern Oregon are producing plants as big as SUVs.

A small office in the Department of Human Services handles paperwork for the program but doesn't inspect the grow sites. So cash-strapped police agencies have become cannabis constables.

Patients can smoke or grow pot in view of children, so long as they aren't in a public place. This year, two growers legally cultivated 24 plants in a backyard next to Keizer's McNary High School.

Takes up police time

The southwestern corner of Oregon is gifted with verdant mountains, dry valleys and perfect cycles of summer sunlight. Some of the world's finest cannabis is grown there, its pedigree sometimes compared to the tobacco used in Cuban cigars.

"It's one-hit-wonder, see-you-tomorrow type stuff," said Detective Josh White, a sheriff's deputy assigned to the Josephine Interagency Narcotics Team, known as JOINT.

Three southwestern counties -- Curry, Coos and Josephine -- also boast the state's highest per capita concentration of medical marijuana cardholders. One in every 89 residents is a patient in the program -- nearly four times the rate of the Portland area's three counties.

Members of narcotics teams say they prefer to spend their shifts closing down meth labs and the vast marijuana grows by Mexican cartels that take root each year in remote mountains.

But they often find themselves investigating thefts of medical pot, including the occasional home-invasion robbery, and making sure growers comply with the law.

Although patients or their caregivers may tend as many as six mature plants, cardholders designated as growers are allowed to cultivate for as many as four patients, allowing a plot with 24 mature plants. Some growers combine resources in communal gardens, creating vast grows that can look suspicious.

Late last month, White checked out a citizen's report of 100 marijuana plants on a grassy hillock outside Grants Pass. The detective instead found a legal grow of five mature plants inside a greenhouse. When White caught up with the patient, a 28-year-old carpenter, the man told him his biggest plant had been stripped.

The detective spent most of his shift solving the crime -- and returning the man's pot.

Police in some parts of Oregon have wearied of rousting growers, even those with oversize grows, because such cases are a low priority for prosecutors.

"When it comes to medical marijuana," White said, "we're almost at a point where we don't care, it's sad to say."

Criminal growers

Douglas County's drug task force arrested 25 people with medical marijuana cards in 2006. They seized 281 plants and 1,687 pounds of dried, processed cannabis with a street value of more than $4 million.

The team has raided medical marijuana cardholders across the county's 5,071 square miles in the past few years, seizing firearms, cash, cannabis butter, high-grade buds, hashish, psilocybin, cocaine, methamphetamine and methadone. They also found snapshots of children tending the gardens.

Lt. Curt Strickland, who heads the Douglas County Interagency Narcotics Team, said his troops busted dealers who register as medical marijuana growers, get patients -- including family members -- to designate them as their growers, then provide them little of the drug. That gives them cover for illegal sales, he said.

"They're professional pot growers," Strickland said. "There's no secret to it. That's how they make their living."

Last December, according to state and federal court records, an undercover informant for Strickland's team arranged to buy 50 pounds of dried marijuana from convicted drug dealer John Nelson Jr., a licensed patient and grower who allegedly bragged to the informant that he'd cultivated 550 pounds of pot the past two seasons.

Nelson is accused of telling the informant he wanted $125,000 for the bud, which would be a contribution to the cannabis patient organization he claimed to head, the "Medical Marijuana Fellowship."

When lawmakers amended the law in 2005, they also prohibited anyone convicted of felony delivery or manufacturing of drugs from getting a grower card. Nelson was allowed in because his drug conviction occurred before the change took effect on Jan. 1, 2006.

The Douglas County drug team searched Nelson's home and turned up 90 pounds of high-grade buds. A second grow site yielded 17 pounds more. But the state dropped drug charges against Nelson, 51, and his wife, 53-year-old Delores J. Nelson, after federal investigators took an interest in the case.

On May 17, the federal government indicted the Nelsons for allegedly growing, with the intent to distribute, 157 pot plants. Four patients, whose medicinal cannabis was seized in the Myrtle Creek raids, later sued Douglas County and its sheriff, Chris Brown, a vocal critic of medical marijuana, claiming the county had no right to give federal agents their medicine.

The U.S. Drug Enforcement Agency does not recognize Oregon's medical marijuana program or similar laws in 11 other states. But federal prosecutors generally don't intrude on growers unless 100 plants or more are seized -- the threshold under government sentencing guidelines for a five-year minimum prison term.

What to do with leftovers

Sharon Place cultivated medicinal cannabis in the early 1990s, before it was legal, carrying the drug to some of the hospice patients she cared for in the Applegate Valley.

She was arrested in 1991 for growing marijuana at home. But the judge recognized her good intentions. He let her go with two years' probation and 80 hours of community service, including time gardening at an elementary school.

Place, 51, later obtained a medical marijuana card. She spent this summer tending a communal garden on sloping farmland northwest of Eugene, fretting when water ran scarce and when mold, the worst in years, hit the crop.

By early fall, 60 plants bulged as big as dome tents, with buds -- the most potent part of the plant -- hanging like ornaments on fat Christmas trees. Place and her fellow growers harvested 21 pounds of usable cannabis.

After dividing the pot among 10 patients, the growers were left with about 6 pounds more than the law allows. Place plans to deliver it to patients who have no medicine.

Several nonprofit groups encourage growers to share extra marijuana with other patients or give it to them for distribution. John Sajo, the director of one such patient-support group, Voter Power, estimates that thousands of patients are forced to buy pot on the black market because they can't get it legally.

Many have no place to start a garden, can't afford grow lights and higher electricity bills or are too sick to tend a garden, he said.

"The people that are really left out," Sajo said, "are the sickest, oldest and closest to death."

Once a month, about 300 patients line up outside a theater in Portland's Mount Tabor neighborhood, some traveling hundreds of miles, to accept as little as 1.5 grams of cannabis from Oregon NORML, according to Madeline Martinez, executive director of the anti-prohibition group, which supports patients.

The meager offering comes at a time when southern Oregon growers often harvest pounds of usable cannabis from a single plant. Leftovers seldom reach her organization, Martinez complained, and she doesn't know why. "If you find out," she said, "let me know."

Measures on both sides

Kevin Mannix, a former lawmaker who sponsored the ballot measure creating Oregon's mandatory minimum sentencing law, is the sponsor of a new initiative that would repeal the medical marijuana law.

The Oregon Crimefighting Act contains a provision to replace the program with a taxpayer-financed prescription program. The plan is to give synthetic components of marijuana, in pill form, to people suffering certain debilitating diseases.

Mannix said Oregon's law has given a protective screen to dope dealers and an "aura of appropriateness" to a practice most medical organizations oppose or remain neutral about.

His initiative flies in the face of Oregon's decades-long tolerance of marijuana.

Under Gov. Tom McCall in the early 1970s, the state was first in the country to decriminalize possession of small amounts. Legislators in 1979 passed a law -- later repealed, because it proved unworkable -- that required state police to turn over cannabis seized in drug raids for distribution to people suffering from glaucoma or undergoing chemotherapy.

"I worry about the Mannix initiative, and I take it as a serious threat," Sajo said. "But I don't think it has a chance of passing because it's so loony."

Voter Power's four proposed initiatives for 2008 include one allowing nonprofits to grow cannabis and set up dispensaries, where patients and caregivers could buy dried pot, plants, hashish and tinctures. Patients, caregivers and licensed growers could continue to cultivate cannabis as now, he said.

Voter Power's legal counsel, Leland R. Berger, attended NORML's national conference in Los Angeles last weekend, where he toured two legal marijuana dispensaries.

"It was," he said, "a slice of the future."

Bryan Denson: 503-294-7614; bryandenson@news.oregonian.com

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