The Right Not To Be In Pain
The Feds vs. Ed Rosenthal
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 nationís best political newsletter.