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Humboldt DA candidates views on pot enforcement.

A growing problem? Humboldt County DA candidates weigh in on marijuana enforcement.

Thadeus Greenson/The Times-Standard

Posted: 06/02/2010 01:24:11 AM PDT

Of the three Humboldt County District Attorney candidates, only one has committed to voting to legalize, tax and regulate marijuana when it comes up on the November ballot.

While incumbent Paul Gallegos and challenger Allison Jackson say they remain undecided on the measure, challenger Paul Hagen said he’s made up his mind, and will be voting to legalize the drug that has been the subject of decades of controversy.

”If we make it legal, we can finally control it above board,” Hagen said in a recent interview with the Times-Standard. “You’re never going to get rid of it.”

The November ballot initiative question is only the most obvious in a campaign that could have major implications on how marijuana cases are prosecuted in Humboldt County. If the initiative passes, it will introduce a new wave of local controls, regulations and ordinances and, possibly, a host of new ancillary impacts. If the measure fails, the district attorney’s office will be left to continue navigating through the gray landscape of California’s marijuana law.

While there seems to be a lot of common ground among the three candidates — all support compassionate use and medical marijuana, and all say they are fervently in favor of prosecuting abusers and trying to rein in the impacts of grow houses on neighborhoods — there are certainly some differences.

For starters, Jackson said she places some of the blame for many of the woes the county is currently suffering due to the proliferation of marijuana grows squarely at Gallegos’ feet, referring to the district attorney’s former prosecution guidelines as the “99-plant get out of jail free card.”

”It brought a massive influx of people from outside the county, outside the state and outside the country into this community,” Jackson said. “And, it’s made residential neighborhoods unsafe.”

Gallegos dismisses the much talked about 99-plant threshold — and a lot of other things in the debate — as largely myth.

”Illegal marijuana is accessible to anyone who wants it — that’s how successful the war on drugs is,” Gallegos said. “And, it’s said that the first casualty of any war is the truth.”

He said his medical marijuana guidelines, which went into place in early 2003, were in response to the lawless landscape left by Proposition 215, which essentially made it legal for patients, with a recommendation from their doctors, to possess and grow unspecified amounts of marijuana for medical use. The law did not impose any restrictions, or give any guidelines under which law enforcement and prosecutors could determine what exceeded medical use and delved into the arena of for-profit marijuana cultivation.

So, Gallegos said he introduced his medical marijuana guidelines in an attempt to add some clarity to the situation. For indoor grows, the guidelines stated that anyone with a doctor’s recommendation who is growing 99 plants or less within a 100-square-foot space and using less than 1,500 watts of light would not be prosecuted.

While it’s the 99-plant figure that gets all the attention, Gallegos said the wattage — the amount of artificial light that can be used in a grow space — is really the limiting factor in the equation. Pointing out that one redwood tree has more vegetative mass than 1,000 blades of grass, Gallegos said plant numbers are really inconsequential.

Whatever people thought of Gallegos’ guidelines, they weren’t in place for long.

In 2003, the Legislature passed Senate Bill 420, which went into effect in January 2004 and attempted to add some clarity to the confusion left by Proposition 215. It set default limitations on the amount of marijuana a patient could possess, and allowed counties to create their own ordinances with different limits.

In July 2004, the Humboldt County Board of Supervisors — based on advice from Gallegos’ office and a 22-member community task force — passed its new medical marijuana ordinance, which kept the 100-square-foot and 99-plant provisions of Gallegos’ ordinance, but inexplicably dropped the 1,500-watt limitation.

”That (1,500-watt provision) would have been an additional check that’s not in place,” Gallegos said, adding that its removal eliminated the crucial limiting factor for how much dried, processed marijuana can be extracted from a grow space.

In any event, the California Supreme Court ruled earlier this year in the People v. Kelly that S.B. 420 was unconstitutional, as it placed limits on a voter-passed initiative. Gone were any plain thresholds — including the 99-plant provision in Humboldt’s ordinance — and things returned to the gray area of no concrete limits, where every potential abuse is considered on a case-by-case basis.

Both Hagen and Jackson said Proposition 215 is clearly broken and that something needs to be done to clear the murky waters.

”Quite frankly, either fix 215 or legalize it,” Jackson said.

Because Proposition 215 can only be “fixed” through a vote of the people, Hagen said the easy solution is legalization, adding that he thinks the ballot measure coming in November is a good answer, as it legalizes the drug and leaves questions of taxation and regulation under local control.

”It provides a mechanism for local governments to regulate, tax and control it,” Hagen said.

After saying he’d rather see the Legislature address the issue, Gallegos said the legalization ballot measure would regulate and control marijuana sales, help keep the drug out of children’s’ hands and use some tax revenue for education and outreach efforts. Generally, he said, it sounds like a rational, reasonable approach.

If the measure passes, Hagen said he thinks the district attorney should stay out of local municipalities’ discussions of how they want to go about regulating the drug, other than to ask that a “clear path to enforcement” be included in local ordinances.

Whatever comes of the ballot measure, Jackson and Hagen agree that something has to be done to protect neighborhoods from the ancillary impacts of marijuana grow houses.

”People are afraid of their neighbors,” Jackson said. “That’s not a way to live.”

Hagen and Jackson said home invasion robberies and fires associated with grows in residential neighborhoods are out of control, and that something needs to be done to rein in abuse of Proposition 215. Both said that, in the short term, they would look to Arcata’s land use-based marijuana ordinance as a guide for other municipalities and the county.

Rather than dealing with quantitative limits on possession and cultivation, Arcata’s ordinance simply restricts cultivation space in residential neighborhoods — limiting grows to spaces 50 feet wide and 10 feet in height. Essentially, the ordinance doesn’t restrict what people can do, it restricts where they can do it.

Hagen, who served on the task force that came up with Arcata’s ordinance, said he feels Arcata has kind of set the standard in approaching marijuana grow houses in a way that at once minimizes neighborhood impacts and respects compassionate use and patients’ rights.

If elected, Jackson said she would also immediately meet with all district attorneys in the so-called Emerald Triangle —

Humboldt, Trinity and Mendocino counties — to discuss taking a unified approach to reining in the proliferation of marijuana growing activity. She said she would also make a concerted effort to focus resources on prosecuting growers who destroy rental houses and degrade the environment, points that Hagen echoed.

For his part, Gallegos said he thinks disinformation is pervasive in the debate, and often gets in the way of real solutions.

The outcry over home invasion robberies, Gallegos said, is a bit misplaced. The vast, vast majority of marijuana robberies, Gallegos said, are simply drug deals gone bad, where a marijuana dealer invites a potential buyer into his or her house and winds up getting robbed. The instances of someone forcing entry into a home to steal marijuana, he said, are exceedingly rare.

Further, Gallegos said, much of the ancillary impacts of marijuana grows have nothing to do with medicine, as they are clearly for-profit operations. Contrary to the perception of some, Gallegos said his office aggressively investigates and prosecutes individuals engaged in large-scale, for-profit marijuana cultivation.

This is also hardly a new issue, Gallegos said, pointing out that marijuana growing activity has slowly moved from the hills of Humboldt County and the southern stretches of the county into its more urban areas since Proposition 215 passed in 1996.

”It was an issue before I was elected DA, and it remains an issue,” he said, adding that he’d rather see his staff spend its time elsewhere. “Maybe then we could take the investigator and the deputy district attorney on (marijuana cases) and put them in a cold case unit.”

While all were careful to say they don’t condone recreational marijuana use, all conceded a district attorney has far more pressing matters than prosecuting adults engaging in consensual, responsible behavior that does not harm others.

EDITOR’S NOTE: This is the second in a three-part series looking at the primary issues that have been raised in the district attorney’s race.

Thadeus Greenson can be reached at 441-0509 or

tgreenson@times-standard.com.

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