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."