New law could affect criminal sentences in marijuana cases

In a sharp reversal of federal drug policy, Congress has prohibited the Justice Department from interfering with laws in California and other states that allow the medical use of marijuana. And the turnabout caught the immediate attention of federal judges, who want to know its impact on some recent criminal convictions under the federal law that classifies pot as one of the most dangerous drugs.

A day after President Obama signed the new law last week as part of a government spending bill, U.S. District Judge Charles Breyer of San Francisco asked a federal prosecutor whether the change would affect the sentencing of a Mendocino County pot grower, who pleaded guilty to charges requiring at least five years in prison.

Not at all, replied Assistant U.S. Attorney Kevin Barry, because defendant Matthew Graves “was not growing (his crop) for patients. ... He was growing it for money.”

But Breyer wouldn’t take Barry’s word for it, and rescheduled the sentencing for February.

When Graves was charged with illegal cultivation in 2012, the judge noted, federal law barred any evidence of medical use, but the new law might make that information relevant now. In fact, Graves’ lawyer has said some of his client’s plants were for medical patients. A day earlier, another judge in the same courthouse postponed the sentencing of a Humboldt County man who claimed his pot crop was all for medical use, in compliance with state law.

Not far away, lawyers for Harborside Health Center in Oakland, the nation’s largest medical marijuana dispensary, were preparing to invoke the abrupt change in federal law to fend off U.S. Attorney Melinda Haag’s two-year effort to shut Harborside down and forfeit its property.

The legislation should persuade Haag’s office “to lay down its arms so as to end the costly and misguided offensive on the rights of medical cannabis patients,” said Henry Wykowski, a lawyer for the dispensary.

Federal prosecutors aren’t prepared to concede anything. While the Justice Department hasn’t spoken publicly on the meaning of the new law, saying only that it’s under review, the legislation — an amendment to a government spending bill — is loosely worded and subject to varying interpretations.

Spending ban

Sponsored by two California congressmen, Republican Dana Rohrabacher of Huntington Beach (Orange County) and Democrat Sam Farr of Carmel, the amendment prohibits the government from spending money to prevent 32 states — California and 21 others that allow the medical use of marijuana, and 10 more that legalize hemp oils — from “implementing their own state laws.”

“It’s ironic that they don’t want any money spent (on federal enforcement), because there’s going to be a lot of money spent in courts,” said Marsha Cohen, a UC Hastings law professor in San Francisco who specializes in food and drug laws.

Medical marijuana advocates have promoted such legislation for the past decade to counteract a system in which state laws that allow cultivation, distribution and use of the drug with a doctor’s approval can’t even be mentioned in federal court.

Voters approved the California law in 1996, and since then both Democratic and Republican presidential administrations have backed raids on pot growers and suppliers, prosecution and imprisonment of their leaders, and seizure of their properties, regardless of state or local licensing. The four U.S. attorneys in California announced a campaign in October 2011 to shut down marijuana dispensaries, which they likened to drug trafficking operations, and have closed several hundred.

The forfeitures have slowed since the Justice Department announced in August 2013 that dispensaries complying with state laws should not be a priority for federal enforcement. But Haag’s office and others in California contend the outlets they target are violating state law because of their inherently commercial nature — or, in Harborside’s case, its sheer size, with 108,000 customers — even if the state lets them operate.

'Political statement’

Because federal prosecutors say they’re already abiding by state laws, the new legislation is mostly “a political statement that has no significant impact” on current cases, said Oakland attorney William Taggart, a former Golden Gate University law school dean and advocate of marijuana decriminalization.

But medical marijuana advocates say Congress clearly meant to stop federal crackdowns on state-licensed operations.

Haag’s “lawsuit to forfeit property is contrary to the intent of Congress,” and so are prosecutions of medical marijuana growers and suppliers, said Cedric Chao, a lawyer for the city of Oakland, which approved Harborside’s operation.

Medical marijuana lawyer Joseph Elford said California courts have rejected the federal government’s argument that pot dispensaries violate state law.

The debate is about to begin in federal court.

Before he pronounces any sentence in the Mendocino case, Breyer said at Wednesday’s hearing, he needs to know “what does that act mean with respect to marijuana prosecutions?”

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko