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CounterPunch
January
16, 2003
The Right Not
To Be In Pain
The Feds vs.
Ed Rosenthal
by ALEXANDER COCKBURN
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 medcical
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 connexion, 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 statesand 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 offficals
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.
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Where the Home in the Valley Met the Damp Dirty Prison
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January
4, 2003
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Read
Whiteout and Find Out
How the CIA's Backing of the Mujahideen Created the World's Most
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and Osama bin Laden
Whiteout:
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Press
by Alexander
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and Jeffrey St. Clair
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