The United States has clearly entered sea-change territory when it comes to cannabis policy. A handful of states have legalized recreational marijuana use and more than half have legalized medical use while others are poised to do so. And in what will be the real game-changer, California may legalize recreational use in 2016.Change is in the air, and it smells sweet. Sonoma County attorney Omar Figueroa is right in the middle of it all, defending cannabis clients as they sweat out the last days of prohibition.To that end, last week medical cannabis activists descended on Washington, D.C., to lobby Congress on a bill called the Compassionate Access, Research Expansion, and Respect States Act of 2015 (CARER).
If enacted, the bill would accomplish three main goals outlined in that wordy title: expand access to cannabis (including pediatric access), pave the way for more research into its benefits and get the feds to lay off states that have legalized medical cannabis.It’s a big, detailed bill that would reschedule cannabis from its present federal “schedule 1” to a “schedule 2” category—undoing a Nixonian legacy of overreactions to hippie culture which decreed that cannabis had no medical value whatsoever and lumped it in with heroin and PCP.
In a country where 35 states have now allowed for some form of legalized medical cannabis—and where recent polls have found 80 percent of the population supports legalized access to medical cannabis—the bill has found support among what might be considered unusual corners. It’s indicative of the times we’re in: mainstream tolerance, if not acceptance, of cannabis.Locally, Sen. Barbara Boxer supports the bill and so does Rep. Jared Huffman. But Roy Blunt? You never know.Jacqueline Patterson, a West Marin–based cannabis activist, lobbied the right-wing Missouri senator’s office last week—and recollected to the Bohemian that her lobbying effort made a Blunt staffer cry after Patterson shared her story about the medical benefits she has experienced.
We’ve come a long way, baby. California enacted the nation’s first medical cannabis law in 1996 and has lurched through the ensuing two decades of scattershot enforcement, federal raids, black helicopters, street-side bong hits in Berkeley—and criminal-justice contradictions that have now come home to roost as the state anticipates its second legalization referendum in 2016.Enter Figueroa, a Sebastopol-based attorney who specializes in defending clients against cannabis charges. He believes that legalization, should it come to pass in California, will be good for business—his included. He anticipates a day where his work may shift from defending low-level, nonviolent cannabis offenders to helping some of those same people comply with whatever the state legalization regime looks like.
In his vision, Sonoma County becomes ground-zero for a California “craft cannabis” movement similar to the sudsy one, and he sees opportunities for cannabis nature preserves, where visitors could “ingest and enjoy an ecotourism opportunity we have here in Sonoma County.”For now, he’s trying to deal with what he calls “the folly of incarcerating nonviolent offenders in jails that are already overflowing, and that in Sonoma County have a significant Norteños stronghold,” he says, referring to the notorious Chicano prison gang with NorCal roots.
Figueroa cuts a cool figure. The 44-year-old lawyer runs an office where visitors are greeted with aromatherapy options in the conference room. Getting busted is pretty stressful, and a drop of lavender on the temples—it can help. His wife drops by with their two kids, both preschool boys, and he takes a minute to give them a hug, and there’s an office drum that Figueroa thoughtfully thrums as his assistant goes over some details of a case.
The kicked-back atmosphere belies a fierce devotion that Figueroa has to keeping gentle, plant-loving human beings out of “cages.” He’s a hard-nosed lawyer who supports a spiritualized approach to the plant where you can “ingest cannabis and have a near-religious experience that will enrich you.”It’s a powerful combination, especially when you throw in Figueroa’s study of Brazilian martial arts, some of the more seriously uncompromising jiu-jitsu out there. He says it comes in very handy in court.”It teaches you how to be a faster, stronger opponent, and that’s the same situation we have in the criminal justice system.”
Figueroa represents a couple dozen cannabis clients a year, he says, and is steeped in the many ironies that have unfolded along the way to this cusp of legalization. One day he says he’ll write the Great American Novel about it all. He’ll have a great inspiration: one of Figueroa’s legal heroes is the late Oscar Zeta Acosta, the real-life inspiration for the lawyer in Hunter S. Thompson’s Fear and Loathing in Las Vegas. Acosta was a legendary Chicano criminal defense attorney who worked out of Oakland for years and whose Autobiography of a Brown Buffalo rivals even the late Thompson’s literary output in its raw and unshackled tone.”Being a criminal justice lawyer is the best research for being a writer,” says Figueroa, given the access to the shaggy world of cannabis grows and other North Bay passions. One day you might be in a giant, converted ice cream warehouse-turned grow room researching a client’s defense, and the next, you’re up a redwood tree with a diehard environmentalist tree-sitter.
His novel will surely highlight that cannabis users and growers are an easy mark for law enforcement. It’s a theme that pops up again and again in a free-ranging discussion on evolving local and national cannabis policy. His voice lowers to a respectful pitch as he describes the growers he’s represented as being “creative free-thinkers on a quixotic quest”—to provide boutique strains of quality cannabis, while living in the shadows. He marvels at the sort of particularized intensity and risk that’s inherent to an underground economy which has developed numerous new strains of cannabis, under the shadow of prohibition and incarceration.
“I am drawn toward representing the human beings who do this,” he says. His passion as a lawyer is to “keep these people out of the clutches of the criminal justice system,” he says, and also to help them protect their product from an emergent corporate cannabis culture that’s as voracious as three stoners confronted with a large pizza. “I have a good success rate, but I attribute that to my clients,” he says, adding that part of his mission is to be a “life coach” for his clients. “I make them get a job, do community, go back to school if they aren’t too old. They give me the ammunition I need so I can fight the case. “I don’t keep stats and every case is different, but I can say that I probably saved about a hundred people from going to jail, and saved taxpayers millions.”
Coming out of Stanford University law school in the mid-’90s, Figueroa says he was first drawn to trademark law and the intellectual-property aspect of cannabis—helping protect boutique strains that took years or even decades to develop. “California can again be the center of cannabis culture,” he says. “The center is now Colorado, and the irony of course is that it started here, in mom-and-pop growing communities.” Those growers, he says, are ready to come out of the shadows—and he’s ready to help them out when they do so. If California goes legal in 2016, he says “there will be more work than ever when the law changes. Somebody needs to explain the compliance law, and you need lawyers for that. This is like fresh powder to a skier.” But we’re not yet there and Figueroa acknowledges that the road ahead will likely be blocked with some Puritanical pushback on the broader question of legalization, “as if there’s something wrong with pursuing happiness. It’s in the Declaration of Independence!” Figueroa grew up in Orange County in the 1980s. As a high schooler in Irvine, he says he experienced a bit of racism and was struck by the class divide that played out in the school parking lot. “I had a scooter, and some of the kids had Beemers.”
Figueroa says he was one of the poorest kids in a rich town—and his experiences with racism in the conservative county made him, he says, “someone who wanted to stand up for the little guy.” Still, he says California public schools prepared him well for an undergraduate degree at Yale, where he questioned patriarchy and gender identity and was immersed in the work of French deconstructionists and social theorists such as Jacques Derrida and Michel Foucault.
From there, Stanford Law, where Figueroa met his first legal mentor, renowned criminal defense attorney Tony Serra, Serra was giving a talk to law students and, as Figueroa recollects, “he said there were two types of lawyers: lawyers who will fight for money, or lawyers who will fight for freedom. For most students, it was all about the money.” For Figueroa, it was all about the freedom. He worked for Serra for a while, and his former mentor now says Figueroa is one of the top-five cannabis lawyers in the state. “He didn’t want to do hard crime, robberies, home invasions—the grist of the criminal-justice practice,” recalls Serra. “He wanted to do something where he thought he could make a contribution, and it turned out that medical marijuana became his forte. He staked that out as his battlefield. He carries in court a lot of prestige because he is so idealistic.”
Figueroa notes that it’s politically easier to go after recreational users, and that elected officials understand the difference between 80 percent favorability for medical, while only about half the country supports full legalization. President Obama made a mash-up of state decriminalization efforts and federal resheduling in a recent interview with VICE News—and, in the process, lumped cannabis in with methamphetamine. Figueroa suggests that the president “collapsed all the distinctions into a worldview, which is, ‘Drugs are bad.'” Meanwhile, all the legislative action is in the distinction. Local elected officials understand this and have been lashing out at guerrilla grows in Northern California for their environmental degradations—even as they trumpet medical cannabis. Figueroa is no fan of stream-diverting cannabis grows—”They’re despicable, and I don’t represent them”—but says that “the police are too busy going after mom-and-pop grows instead of these so-called cartel grows. Legalization would free up cultivation by mom-and-pops, and satellites and drones can be used to protect public lands.” And even if Obama was protecting his parental flank with that recent outburst of cannabis word salad, he let the will of the people stand in Colorado, Washington and Alaska, states that legalized recreational pot.
But Figueroa says the next president could undo whatever cannabis deals get cut at the federal level. “The possibility of backsliding is very real,” he says. Under the next president, “there could be a crackdown that could lead to Colorado ruing the day they went on the cover of High Times.” (Last August, the ganja mag offered a “Pot Smoker’s Guide to Colorado.”) As Congress considers the CARER bill, Figueroa can’t help but highlight the built-in contradictions inherent in the government’s scheduling priorities. He notes that Marinol, the FDA-approved THC extract, is listed as a “schedule 4” drug by the feds, even as it lists the whole cannabis plant as having no medical value whatsoever through its “schedule 1” status. The contradictions in cannabis law locally have led to grousing from police about the lack of consistency in medical cannabis laws, and hence, confusion on the street when it comes to a puffing or possessing citizen.
But given the opportunity to help write a bill that would set a single statewide medical cannabis standard, the state police chiefs whiffed badly last year, and the bill failed. Figueroa notes that the police generally like having pot laws on the books—and the sheriff’s office can count on Sonoma County district attorney Jill Ravitch to go after weed offenders: Ravitch retains two DAs who prosecute pot charges. Assistant DA Bud McMahon says about half their caseload is cannabis-related; the rest are mainly heroin, cocaine and meth cases. Still, Figueroa notes that “most marijuana offenders are low-hanging fruit. It’s easier to go after them than after dangerous meth-heads. The cops like these easy marijuana busts. It’s a form of sport, and statistics, to them. But they are blind to how they are ripping families apart.” How so? “Lots of clients with cannabis charges and kids have Child Protective Services on their backs: ‘Talk to us or we’re taking your kids to CPS.'” And cracking down on cannabis has come at the expense of going after other, more pernicious paper crimes. Ending prohibition means law enforcement can re-prioritize. Figueroa hopes that if California goes legal, the police will redeploy resources, for example, to go after identity-theft cases.
But for now, he says, “It’s easier to point a gun at a hippie and put him in a cage.”