The Right Not To
Be In Pain
The Feds vs. Ed Rosenthal
by Alexander Cockburn
Dissident Voice
January 16, 2003
Since the bottom
line here is terrible physical pain, let's start with someone who has spent
most of her life in that condition. There are millions like her. Patricia C is
47 today and lives in California. At the age of 12 she developed scoliosis and
sixteen years later her doctors told her she had the neck and spine of an
80-year old. By the time she was 30 she was on a pain killer called Darvocet,
which in turn yield to a stronger one, Tramadol. A car crash in 1998 left her
with additional spinal trauma and a brain injury. Her whole life revolves
around pain. She had no appetite, was sunk in depression and prayed to God to
release her from her torment.
It's not as
though medical marijuana shifted Patricia to a bed of roses. "A lot of the
time," Patricia C said in a recent deposition, "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 January 22 in US District Court in San
Francisco, the competing desires of the body politic of California and the US
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 twenty years.
In 1996 the
people of California approves 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 Buyers' Cannabis
Club as an actual agent of the city of Oakland to carry out policy. OCBC in
turn extended 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, the Marijuana Medical Handbook Rosenthal 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 boy, has.
"We had a wonderful program at the Bronx Botanical Garden," he tells
me, "and I gardened under their auspices. I never took a botany class in
college, but I'm a fast learn."
A couple of
years after passage of California's Compassionate Use Act, the feds move to
permanently enjoin the Oakland Cannabis Buyers' Club from dispensing medical
cannabis. The Department of Justice launch a civil proceeding in San Francisco,
where US District Judge Charles Breyer, a Clinton appointee, duly allows the
injunction. The 9th circuit reverses him. Then the US Supreme Court, with
Stephen Breyer recusing himself by dint of his fraternal connection, hears oral
argument. There are some interesting exchanges. Isn't it true, 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 US 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 February 12, 2002 was the day when search warrants were
executed and Rosenthal arrested. Asa Hutchinson was the newly sworn-in head of
the 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, that the crowd would be supportive, and instead he got
booed.
Sometime not too
long after, Hutchinson announced that the US Government would not go after
individual users of medical marijuana. That was a blink, because individual
possession of cannabis under fed law 21 USC 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 are supposed to do.
But meanwhile
the full weight of the US 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. It's really important that I win this case. I was not
growing bud. I was growing starter plants so people could become self
sufficient. It's the most difficulty part of cultivation. They were female,
they were high quality. I was enabling people. I was working within the City of
Oakland guidelines. I was only providing for the medical dispensaries and I'm
facing twenty years."
"From
Reagan onward," Eye remarks, "the tilt has been to devolve power to
states and the US Supreme Court has been similarly trending toward allowing
states a greater degree of power. So here we've got the laboratory that is
California, adopting a provision by its voters but now when it really is
important to recognize the value of the state's internal right to experiment
with a different social policy, the Feds decide it's not such a good time to
devolve power back.
"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."
Those wanting to
help Rosenthal with the cost of his trial should contact www.green-aid.com.
Alexander Cockburn is the author The Golden Age is In Us (Verso,
1995) and 5 Days That Shook the World: Seattle and Beyond (Verso, 2000) with
Jeffrey St. Clair. Cockburn and St. Clair are the editors of CounterPunch, the nation’s best political newsletter.