OAKLAND — The self-proclaimed “guru of ganja” Ed Rosenthal says his one-day, time-already-served sentence for three marijuana-cultivation felonies proves that federal laws against pot are going up in smoke. But a federal judge in San Francisco insisted that this get-out-of-jail-free card could be played only once.
Rosenthal faced the possibility of a decades-long prison sentence and fines totaling millions of dollars.
In defense of the light sentence handed out June 4, U.S. District Judge Charles Breyer described Rosenthal’s belief that state and city laws shielded him from federal prosecution as reasonable but wrong. However, the judge added, this case has put Rosenthal, 58, of Oakland, and the rest of the nation “on notice” so nobody else can harbor such a belief in good faith.
In other words: From now on, do the crime and you’ll do the time — case closed.
Nonsense, countered a defiant Rosenthal, in an exclusive interview with the Forward a few days after his sentencing.
“Imagine a box in the bottom of the ocean, and the box is supposedly watertight. If there’s even the smallest crack, water starts getting into that box,” the Bronx-born Rosenthal said. “That’s what the laws are like now; they’re hollowed out and leaky… and I think [Breyer’s] effort to stop progress is futile.”
California voters in 1996 approved a law allowing medical use of marijuana, but federal law still bans it entirely. Drug Enforcement Administration agents busted Rosenthal, a prolific pro-marijuana author and columnist, in February 2002 for growing marijuana plants in a West Oakland building and selling them to a San Francisco medical marijuana club.
Breyer denied Rosenthal’s request to inform the jury of his belief that he was shielded from the federal law by the state law and by an Oakland ordinance under which he was deemed an officer of the city allowed to grow marijuana. Before trial, Breyer ruled that the state and city had no authority to “deputize” Rosenthal in this way and that his status under their laws was irrelevant to his culpability under federal law. Jurors convicted Rosenthal January 31, but later rallied to his defense after learning of the state and city protections.
Rosenthal is appealing the verdict in order to clear the felony convictions from his record and set a true precedent for the use of marijuana for medicinal purposes. He hopes the appellate court will order a new trial in which he’ll be allowed to present his defense based on the state and city laws — an order that would encourage other states and cities across the nation to pass similar laws. A pending bill in the U.S. House of Representatives — the “Truth in Trials Act,” now with 34 co-sponsors — would accomplish much the same.
The 9th U.S. Circuit Court of Appeals could overrule Breyer’s lenient sentence and toss Rosenthal in a cell. But Rosenthal said that the verdict must be challenged or else “from now on medical marijuana users and their providers will be treated as common criminals.” Rosenthal likened his case and his cause to the civil rights movement of the 1960s.
“Patients should be able to get their medicine — that’s not just a civil right, that’s a human right,” he said. “It’s not often a government has denied sick people an effective medicine. You could almost consider it a form of genocide because if they don’t get their medicine, a certain number of people will die. The government just sees that as a cost — or maybe a benefit — of its policy.”
Two counts against Rosenthal were punishable by five to 40 years in prison, the third by up to 20 years. The former charges carried a five-year mandatory minimum sentence, and prosecutors sought a six-year term. But Breyer found that Rosenthal’s clean record provided a “safety valve” exception to the mandatory minimum. Also, the judge concluded, Rosenthal’s assumption that he was protected by state and city laws — although incorrect — was a mitigating factor meriting an enormous downward departure from the sentence he otherwise would have faced. The day behind bars Rosenthal served when first arrested was punishment enough, Breyer ruled, along with a $1,000 fine and three years probation.
Prosecutors declined comment, and the DEA vowed to keep enforcing federal law. Meanwhile, marijuana advocates were hailing the light sentence as a harbinger of reforms to come.
“This law is dead. Now the questions are, ‘How long will it take it to die?’ and ‘How many people will suffer in the meantime?’” said Bruce Mirken, communications director for the Marijuana Policy Project in Washington. “This is too big and too important, and despite what the judge may have said, what he recognized was that it was not viable to send this man to prison. He [the judge] would’ve been lynched.”
Actually, Rosenthal put Breyer through a verbal lashing anyway.
When Breyer first announced the sentence, Rosenthal was grinning elatedly at the news that he could go home with his wife and daughter. Minutes later, however, Rosenthal was outside the courthouse, red-faced and shouting about how Breyer should resign for having violated his rights during the trial. The Guru of Ganja suddenly sounded like the Moses of Marijuana, admonishing the federal pharaohs to let his people go so that he could lead them into the promised land of legalization.
“This is day one in the crusade to bring down the marijuana laws — all the marijuana laws!” he yelled during a fiery speech to a throng of cheering supporters and a wall of national news media. The federal government doesn’t distinguish between medical and recreational marijuana use, so neither will he, he said — all marijuana convicts should be freed, and “all marijuana should be legal!”
Rosenthal’s pro-legalization beliefs have been clear since his first guide to growing the illegal plant was published almost 30 years ago, but his bluntness made some medical marijuana advocates cringe just a bit.
“He’s not a diplomat,” said Jane Marcus, a resident of Palo Alto who handed out “Ed Rosenthal — Hero” buttons at a convention of Reform synagogue leaders in February.
Marcus and others at Congregation Beth Am in Los Altos Hills, Calif., launched a “Medical Marijuana as Mitzvah” project in 1999 to convince faith communities that the legalization of medicinal marijuana was an important social-justice cause for all Jews to adopt. The project led delegates at that year’s Women of Reform Judaism national meeting to approve a resolution urging sisterhoods nationwide to become informed about the issue. The resolution also urged sisterhoods to call for more research on medicinal marijuana use and to urge Congress to reclassify marijuana so it can be prescribed for critically ill patients.
In recent months Marcus has been attempting to build support for Rosenthal throughout Northern California’s Jewish community.
Noting that both Breyer and Rosenthal are Jewish, Marcus told the Forward she saw in the lenient sentence an almost kabbalistic balance of justice and compassion. She said she was only slightly uncomfortable with Rosenthal’s post-sentencing tirade in favor of total legalization.
“The only problem it causes for me is [that] the opponents can say, ‘See, I told you the medical marijuana was just a smokescreen, a foot in the door for legalization,’” Marcus said. “Yes, he was strident and irascible, and yes, you want to wring his neck for what he said about Breyer.… But this is what the man believes, and I believe it too. I’ve been a little bit coy about it in the work I do; I want to be able to say the question about recreational use is irrelevant when you’re talking about medical, because obviously the sick should be able to have it.
“Given the political realities, we’ve had to separate the medical and the nonmedical. Maybe this is a foot in the door, but you have to show compassion and give it to the sick people who need it.”
Rosenthal said he’s now sifting through thousands of messages from well-wishers; writing; pursuing an unrelated lawsuit against the trustees of High Times magazine, to which he contributed for many years; and trying to relax, at least until his appeal is filed in a few weeks.
He’s enjoying his freedom but believes it was “a strategic move on Breyer’s part.”
“If he had sentenced me to any time at all and remanded me, it would’ve pushed this case even further,” Rosenthal said. “I’ve always said I’ll never do any time. Even my attorneys were starting to despair — they didn’t think I was being realistic, especially after I was convicted.”