The Feds Vs Ed Rosenthal

by Alexander Cockburn

It's not as though medical marijuana shifted Patricia to a bed of roses. "A lot of the time," Patricia C. said recently, "I have to take far more medicine for my body -- for the pain, the nausea and muscle spasms -- than my brain can handle. I wake up every night in pain. I get up every morning in pain." But, as she says, "Today, I am in relatively good spirits, primarily because of my daily use of medical marijuana, which I find an absolute godsend. I can use it daily. It isn't addictive, and it isn't detrimental to my health."

Patricia holds card number 34 in her local cannabis buyers' club. She was one of the earliest beneficiaries of the Compassionate Use Act, passed by the body politic of California in 1996. Later this month, on Jan. 22, in U.S. District Court in San Francisco, the competing desires of the body politic of California and the U.S. federal government will meet before a jury, in a clash that could plunge Patricia and all the millions of others in chronic pain back into all the agonies they once endured. It could send also send a legendary figure, Ed Rosenthal, to prison for 20 years.

It's 1996. The people of California approve the Compassionate Use Act, otherwise known as Proposition 215. Marijuana can be used on a doctor's recommendation or prescription to help people in medical need. To implement 215 the city of Oakland promptly enacts its own ordinance and resolutions. It designates the Oakland Cannabis Buyers' Club as an actual agent of the city of Oakland to carry out policy. OCBC in turn extends its authority to Ed Rosenthal to empower him to provide medical cannabis.

Rosenthal, 58 and author of such books as the "Marijuana Growers Handbook," "Marijuana, the Law and You" and the "Marijuana Medical Handbook," is the world's foremost authority on growing marijuana. He helps people who need marijuana by supplying starts for them, since growing the plants from cuttings and sorting out the desired female starts requires aptitude, which Rosenthal, a Bronx, NY boy, has. "We had a wonderful program at the Bronx Botanical Garden," he tells me, "and I gardened under their auspices."

A couple of years after passage of California's Compassionate Use Act, the feds move to permanently enjoin the OCBC from dispensing medical cannabis. The Department of Justice (DOJ) launches a civil proceeding in San Francisco, where U.S. District Judge Charles Breyer, a Clinton appointee, duly allows the injunction. The 9th circuit reverses him. Then the U.S. Supreme Court, with Justice Stephen Breyer recusing himself by dint of his fraternal connection, hears oral argument. There are some interesting exchanges. Isn't it true, Justice David Souter asks the DOJ attorney, that the only reason you brought this case civilly is because you know you can't get a jury to convict?

In May of 2001, the U.S. Supreme Court upholds the injunction and rules that medical necessity is not a defense under the Controlled Substances Act. Federal law vanquishes state law.

Now, this was a civil, not a criminal action. Those enjoined could be held in contempt and suffer monetary sanction. The consensus of opinion around the medical marijuana community is that criminal penalties have fallen by the way.

It was scarcely coincidence that Feb. 12, 2002, was the day when search warrants were executed and Rosenthal was arrested. Asa Hutchinson was the newly sworn-in head of the Drug Enforcement Administration (DEA). "I just get the feeling," says Robert Eye, Rosenthal's lead attorney, "that Ed was supposed to be the trophy, the opening shot fired by Hutchinson to show the DEA's primacy." Hutchinson came into San Francisco, spoke at the Commonwealth Club, expecting that on announcing that Ed had been arrested the crowd would be supportive, and instead he got booed.

Sometime not too long after, Hutchinson announced that the U.S. government would not go after individual users of medical marijuana. That was a blink, because individual possession of cannabis under fed law 21 U.S.C. sec. 841 is a crime. Even Hutchinson conceded that because of the unique circumstances in California, and because of customs and practices in that area, that DEA pursuit of medical cannabis was not feasible. But it does represent a slippage and more ambiguity about what Ed Rosenthal and others like him are supposed to do.

But meanwhile, the full weight of the U.S. Department of Justice, the DEA, not to mention the far from dispassionate Judge Breyer (like most of those set upon the federal bench, more prosecutor than judge), bears down on Ed Rosenthal, with a jury of his peers being the arbiters of his fate.

"This is a tipping point case," Rosenthal tells me. "If they bust me, they are going to start closing these clubs. The clubs will have no excuse. Everyone will have to plead out."

A last word from Eye: "When states and feds can't come to consensus on what a policy should be, it doesn't hurt the officials and policy makers. It's individual citizens who pay the price. Rosenthal is charged with cultivating marijuana, maintaining a place to cultivate marijuana and conspiring with others to cultivate marijuana. He's looking at the possibility of life. It's right there in the indictment on the penalty page."