EASING THE PAIN

A Probationer Is Asking Gov. Gary Johnson To Practice What He Preaches:
Grant Him A Pardon For Using Medicinal Marijuana

Orlando Gutierrez doesn't want to die in prison. He's hoping that Gov. Gary
Johnson doesn't want that, either.

"I don't think I'll make it if I go back to jail again," said Gutierrez, 48.

Another positive drug test and Gutierrez, who says he uses marijuana to
ease his pain from hepatitis and cancer, faces getting his probation
revoked and spending nine years behind bars for petty crimes.

Gutierrez's attorney is asking Johnson for a pardon. And his chances of
receiving one might be slightly better than average since the governor has
said that using marijuana for medical reasons should not be cause for
arrest and jail time.

So, Orlando Gutierrez - afflicted with liver cancer - waits. And hopes.

Gutierrez's argument was laid out in a letter recently sent to the
governor: "It seems cruel for the state to send a man to prison to die for
smoking marijuana to alleviate his medical condition. . . ."

Two days after sending the letter, Albuquerque public defender Richard
Briones-Coleman said he was surprised by a phone call from the Governor's
Office, asking him to come to Santa Fe to talk to Johnson in person.

On May 17, in a brief meeting between Briones-Coleman and the governor,
Johnson listened intently and asked for more documentation before deciding
Gutierrez's fate.

Johnson, an advocate for changing the nation's drug laws, is opposed to the
statutes prohibiting the use of marijuana for medical reasons.

"I think these are laws at their worst," Johnson said in a comfortable
meeting room adjoining his office. "Given my thoughts on medical marijuana,
it (the law) just makes lives so much worse."

Gutierrez's case, he said, is an example of what's wrong with current drug
laws.

"The whole system makes a revolving door for probationers to test positive.
This is clearly not right," Johnson said. "I have a fundamental problem of
putting people in jail for drug use."

Gutierrez claims he has tried everything to ease his suffering, but says
the only relief from pain and nausea has been smoking between a half and
one joint of marijuana each day.

During the past few years, he has received diagnoses of hepatitis and
cirrhosis of the liver. Finally, a few months ago, liver cancer was
discovered. He also suffers from a related gastrointestinal malady and is
awaiting word from his doctors about his prognosis and course of treatment.

Gutierrez found comfort from suffering through pot about five years ago, he
said, when a doctor at the University of New Mexico Hospital suggested it
to improve his appetite and cure his nausea.

The doctor told him he couldn't prescribe it for him, though, since it was
illegal.

Gutierrez tried the marijuana, and said it worked like a magic potion. He
soon gained about 10 pounds.

But, Gutierrez said, he knew smoking pot could violate his probation, so he
told his probation officer about it, theorizing if it was used medicinally,
perhaps there might be some understanding.

At first, his probation officer, Patricia Long, seemed empathetic,
Gutierrez said. But when he had tested positive for marijuana three times,
twice in January and once in March, she revoked his release and he was put
in the City-County Jail.

Long declined to be interviewed for this story.

"He was always totally up front about it," Briones-Coleman said.

When Gutierrez met with state District Judge Ross Sanchez in May, he begged
the judge to allow him to be released - that his pot smoking wasn't meant
to be disrespectful to the court, but a medical necessity.

Ignacio Gutierrez, Orlando's father, also begged Sanchez not to keep his
son in jail.

"I believe it's a death sentence," the father told Sanchez. "I've already
lost one son who died in there."

Sanchez told Orlando Gutierrez that he knew it was an accepted fact that
marijuana helped relieve those symptoms, but that it was still illegal and
was hard to condone because of that.

The judge released him to a treatment program. There, better medical care
was easier to obtain, but Gutierrez was still prohibited from smoking
marijuana. And he still has trouble controlling his nausea and pain without it.

"As soon as I get off it," Gutierrez said, "I get real sick."

Briones-Coleman speaks about the case with both frustration and outrage.
"It's ludicrous," he said. "An offense that the average person would only
do a minimum amount of time for - or pay a $50 fine - he could do eight or
nine years."

Because of his criminal history, another probation violation could also
mean enacting a repeat offender enhancement, meaning more prison time.

Even though his criminal record is long, Gutierrez has no history of
violence or use of weapons. Many of his convictions were thefts, just large
enough to qualify as felonies. Those crimes, he said, stemmed from an
earlier heroin addiction.

Gutierrez's last criminal charges are in connection to the 1996 unlawful
taking of a vehicle, which were eventually dismissed.

But while in the City-County Jail awaiting trial, Gutierrez's brother,
Patricio, died in the same jail. Both brothers were in custody awaiting
trial for the same charge.

Orlando Gutierrez was allowed a furlough to attend his brother's funeral
but was four hours late returning because his father suffered a heart
attack during the funeral.

Although the stolen vehicle charges were dismissed, he now had another
felony charge added, escape from jail, for his tardiness. He was indicted
on the escape charge and reindicted for the stolen vehicle, unlawfully
taking a vehicle, in February 1998.

When he appeared in court to answer those charges, he posted bond and was
released from jail while awaiting trial.

Finally, in October 2000, he appeared before Judge Sanchez, who placed him
on probation due to his degenerating health.

Now he's teetering on a legal tightrope.

Gutierrez is a slightly-built, quiet and gentle man with short, graying
hair and thick glasses. He's been married to the same woman for more than
22 years and said he hasn't touched a drop of alcohol in 20.

Given Gutierrez's criminal history - as well as two years in Vietnam as a
door gunner in a helicopter and surviving the infamous riot at the
Penitentiary of New Mexico in 1980 - it would not seem unreasonable to find
anger or a bad attitude lying just under the surface.

But there is none apparent. And he blames no one except himself for his bad
choices. But, he says, he's learned from his mistakes and wants to move on
- - create a better life for himself and his family with the time he has left.

Now Gutierrez says he's taking it day by day, staying clean at the
Transitional Living Center, an Albuquerque halfway house, and hoping that a
legal drug can be found that will work on his symptoms as good as the pot.

He is also trying to get into a experimental medical program at UNM that
uses THC, one of the active components of marijuana, in its treatments for
liver cancer.

And he's waiting for word about his pardon.

However, Johnson doesn't issue blanket pardons.

To date in Johnson's administration, he has pardoned 86 offenders, 34 of
them for drug-related crimes. Every year, he receives hundreds of petitions
for pardons. Less than 20 percent meet the eligibility standards, and less
than 10 percent are ever granted, explained Johnson's legal team.

Deputy Legal Counsel Matthew Hoyt, who works on the details involving
pardons, said the governor considers every request he receives. Most
drug-related pardons have been for the sale, possession or use of small
amounts. Usually, 10 years have passed since the offense, and "people have
gotten their lives together."

Bob Stranahan, legal counsel to the governor, said he cannot predict when
an answer for Gutierrez will be made.

"We have asked for more paperwork on it and are waiting on that before the
governor makes his decision," Stranahan said.

Gutierrez said he can only hope it will be in time.

"I have an old Winnebago that I would like to fix up and see the rest of
the country," he said. "I haven't been totally free since 1996."