Government
Dec. 18, 2014
Federal budget bill may upend medicial marijuana prosecutions in California
A federal judge granted a motion Tuesday by a defense attorney to continue his client's sentencing hearing in light of a budget bill saying prosecutors should not use funds to prevent states from implementing their medical marijuana laws.
Daily Journal Staff Writer
SAN FRANCISCO - It didn't take long for a California attorney to test the significance of an amendment in the federal budget bill Congress passed this weekend that could affect how marijuana cases are prosecuted in states with medical cannabis laws.
A federal judge granted a motion by attorney Ronald Richards to continue his client's sentencing hearing in light of a provision saying the Department of Justice should not use funds to prevent states such as California from implementing their own medical marijuana laws.
Richards, a Beverly Hills-based sole practitioner, plans to file a motion to withdraw his client Anthony Pisarski's guilty plea - for cultivating medical marijuana at his home in Humboldt County in accordance with California law - as soon as President Barack Obama signs the budget bill into law.
He believes it's the first such motion to be filed in the country.
"It's an interesting circumstance," U.S. District Judge Richard Seeborg said Tuesday before granting a 90-day continuance for sentencing. U.S. v. Pasarski et al, CR14-278 (N.D. Cal., May 21, 2014).
Assistant U.S. Attorney Adam Wright did not oppose the motion to postpone the sentencing, but he said he was not agreeing the defendant should be able to withdraw his plea.
The Rohrabacher amendment, introduced by two California legislators, prevents funds in the appropriations bill from being used in dozens of states "to prevent such states from implementing their own State laws that authorize the use, distribution, possession, or cultivation of marijuana."
The U.S. House of Representatives passed a version of the budget with the amendment back in May, but the Senate didn't pass it until this weekend.
"When the Senate agreed to the Rohrabacher amendment, I decided I couldn't in good conscience let my client get sentenced," Richards said. "If there's a pending case, he hasn't been sentenced yet, we will withdraw the plea and say you can't prosecute him because there's no money left."
Legal observers say though the amendment is a directive from Congress not to prioritize marijuana prosecutions, the budget bill doesn't in itself change the federal statute finding pot to be an illegal and harmful substance. Therefore, it's uncertain how the Justice Department will implement it.
"I'm not sure anything is really clear now," said Douglas Berman, a criminal law professor at Moritz College of Law at Ohio State University.
But in Pisarski's case, he continued, "I think its exactly right to say we should think hard about what that [amendment] means before we go forward with any sentencing. Let's catch our breath and figure out what this means."
U.S. attorneys in California have pursued individuals that run afoul to federal marijuana law in recent years, even if they are in compliance with state regulations. But the landscape is changing.
The Justice Department under Obama has issued several memos encouraging less vigorous prosecution of certain marijuana-related offenses, and states are rapidly passing laws allowing either recreational or medical use of the drug.
Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego, said it will be interesting to see how federal prosecutors react to the provision.
"If the Department of Justice takes the view that a lot of people have taken about this provision, which is that it doesn't allow for them to go forward in these cases prosecuting people who are arguably in compliance with medical marijuana laws, that's a real game changer," Kreit said.
Others say it might be a stretch for ongoing medical marijuana prosecutions such as Pisarski's to stop cold simply due to a change in the budget bill.
"I think that is an aggressive reading of the language at issue," said Jonathan H. Adler, a professor at Case Western Reserve University in Cleveland. "As I read the language, it is not as expansive as has generally been reported in the press, and does not necessarily preclude all prosecutions." href="mailto:
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Hadley Robinson
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