The Conviction of Ed Rosenthal for Growing Medicinal Marijuana:
Why It Was Wrong to Prosecute

By SHERRY F. COLB
Wednesday, Feb. 12, 2003

Last month, a federal jury in California convicted Ed Rosenthal of marijuana cultivation and conspiracy charges. Rosenthal will now face a minimum of five years behind bars for his actions. Theoretically, he could even be sentenced to life imprisonment.

People are convicted of drug offenses every day, of course. But several factors distinguished this case from others.

First, Ed Rosenthal grew marijuana for sick and dying patients. Second, Rosenthal acted as an agent of Oakland, California's program to dispense marijuana to people whose doctors have prescribed it. Third, California's Proposition 215 expressly authorized the program.

At Rosenthal's trial, the defense sought to tell the jury these facts, but the judge ruled them inadmissible. As a result, Rosenthal was convicted by a jury whose members believed he was an ordinary marijuana grower.

Following the verdict, upon learning the truth, several jurors called for a new trial. Horrified by what they had done, they felt they had been misled into making a terrible mistake.

A Supreme Court Ruling Says Even Medical Marijuana Violates Federal Law

In a previous column, I argued that providing relief to suffering patients should qualify as a common law defense to federal drug charges. In an opinion by Justice Thomas in the case of United States v. Oakland Cannabis Buyers Cooperative, however, the U.S. Supreme Court rejected such arguments.

In that case, a cooperative that dispensed marijuana to sick people was seeking a declaratory judgment stating that their activities were legal. Though they lost the case, no one was sent to prison.

The decision, however, brought the war on drugs to a new front. A battle that was once waged on unscrupulous dealers would now come to those attempting to alleviate the agony of extremely and terminally ill individuals.

Because marijuana can combat nausea, it is an invaluable treatment for AIDS sufferers losing dangerous amounts of weight, and for cancer patients experiencing nausea induced by chemotherapy. After the Supreme Court's decision in Oakland Cannabis Buyers Cooperative, helping such people could trigger federal prosecution.

Expecting Federal Prosecutors To Look the Other Way

Warned that their activities violated federal law, California officials and citizens - including Ed Rosenthal - nonetheless persisted in doing what they thought was right. Perhaps they reasoned that even if federal narcotics laws technically prohibited what they were doing, they could count on the Justice Department to exercise its discretion wisely.

They might have hoped that, having made its point that the laws indeed apply, the Department would still use its resources to go after the kind of drug-dealing that can blight neighborhoods and go hand in hand with violence.

Rosenthal, after all, did not participate in the global drug trade, either by buying drugs of unknown origin from dealers or by selling them to the general population. Moreover, because his actions were regulated, like the actions of the alcohol industry after the end of Prohibition, they were not linked to the violence and mayhem of illegal drug trafficking.

In trusting federal prosecutors to leave them alone, however, Ed Rosenthal and others made a serious miscalculation.

Federal Supremacy: Here and Elsewhere

Rather than look the other way, Attorney General Ashcroft and his Justice Department have chosen to pursue Ed Rosenthal for openly flouting the dictates of federal law. Under the Constitution's Supremacy Clause, federal law trumps state law whenever the two conflict.

For the federal government to insist that all citizens in every state adhere to federal law is not inherently objectionable. Many states, for example, disagreed with the U.S. Supreme Court's view of segregation in Brown v. Board of Ed. Indeed, the phrase "state's rights" became a synonym for racism and segregation in part because states took the position that integration was a bad idea, regardless of how loudly a group of tyrannical federal judges insisted otherwise.

Most of us think, however, that when segregationists stood behind their beliefs with massive resistance, the federal government acted appropriately in crushing that resistance. It was doing what was necessary to ensure that African-American children could safely attend the same public schools as their white counterparts.

The merits of the underlying dispute are therefore an inescapable part of any condemnation of the Rosenthal prosecution.

Hypocrisy

Attorney General Ashcroft is nonetheless an easy target. He heads the Justice Department of an Administration that claims to value the sovereignty of states as well as the states' ability to embrace priorities that are distinct from those of the national government. In fact, the man who selected Ashcroft would not be in office were it not for an electoral approach that subordinates the will of the majority of the populace to the will of a group that more closely approximates the wishes of the states.

When Ashcroft and the Bush Administration do not like what the states are doing, however, then their skepticism about federal supremacy seems to undergo a transformation. If California believes in medical marijuana, then California must be beaten into submission. Even if one does not accept the notion of a state's "right," one can still point a finger at those who do and who nonetheless go ahead and violate that putative right.

There's only so far the hypocrisy point can take us, however. Just because Ashcroft may be a hypocrite does not make the prosecution of Ed Rosenthal wrong. At best, it deprives Ashcroft of the moral standing to pursue it, leaving open the question of what a more principled attorney general ought to have done.

Beyond the Merits

There is something very troubling about the prosecution of Rosenthal, above and beyond the merits of the argument for a medical marijuana exception to narcotics laws.

Consider a similar but fictional set of facts. Suppose that Compassionate Carl decides to grow marijuana for sick people in New Jersey because he believes that both federal and state laws are wrong.

Carl feels strongly about what he does, just like Ed Rosenthal did, but Carl has no official authorization for his mission. In pursuing his agenda, however just and right, he engages in civil disobedience with his eyes open. He is as likely as any other drug-dealer to be charged with a crime.

State or federal prosecutors could decide to go after Carl under such circumstances, because he chooses to disobey laws of which he disapproves. A person like Carl might be willing to disregard other laws as well, and such a person therefore poses a risk of general lawlessness. In addition, if Carl gets away with his crime, then others may infer that one need only obey laws of which one approves.

Legal regulation works as a communal instrument of social control only if it compels compliance independent of any individual's views.

The next civil disobedient to follow in Carl's footsteps, then, might choose a far less controversial set of prohibitions to violate, perhaps because he and others have developed contempt for law. There is thus something to be said for following the rules, even when a person is not a fan of a particular statute.

Ed Rosenthal, however, did not simply choose to disobey the law. State officials specifically granted him permission to cultivate marijuana. In other words, whatever civil disobedience occurred was joined by the government of the state and the municipality, which might thus have appeared prepared to shield the individual from the wrath of the federal government.

What About Segregation?

If we go back to the case of massive resistance to desegregation, we have another example of federal lawbreaking assisted by state officials. In spite of the states' involvement, however, most of us would not feel that the federal government was wrong to intervene. In fact, federal intervention became the only hope of children seeking equality in the classroom.

Does the analogy to segregationists' massive resistance make the official recognition of Ed Rosenthal in California irrelevant? No. It only proves that if people are fighting for racial segregation, then they are engaged in activities that are so clearly wrong that the fight is benighted, regardless of who joins in. The fight against racial integration reflected and reinforced white supremacy.

Unlike the segregationists, the state of California and the selected official medicinal marijuana-growers in that state are engaged in something whose worthiness of condemnation is far less clear. Even people who believe that illicit drugs exact a horrific physical and moral cost on their users, would not generally equate provision for medicinal with provision for recreational use.

It All Matters - Merits, Hypocrisy, and State Sanction

In considering the Rosenthal conviction, then, a number of factors turn out to be significant. First is the nature of the defendant's actions. Ed Rosenthal grew marijuana to relieve the suffering of sick people, and he harmed no one in the process. Second is the fact that he went to great lengths to ensure that his actions conformed to the law of California, by obtaining official authorization. And finally, the Administration that chose to prosecute Rosenthal was guilty, in so doing, of hypocrisy.

Because California is not alone in singling out the medical use of marijuana for protection, the Justice Department has apparently decided to make an example of Ed Rosenthal. He is dangerous because he dissents from the Attorney General's position.

Whether the issue is medicinal marijuana, our failure to execute enough people in the Northeast, or the legalization of physician-assisted suicide in Oregon, it seems, Ashcroft considers dissenters to be enemies of the State (or at least, of the federal government).


Sherry F. Colb, a Findlaw columnist, is a Professor at Rutgers Law School in Newark. Additional columns by Colb, on criminal law and other topics, may be found in the archive of her columns on this site.

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