In the denouement of the most highly-publicized federal medical marijuana prosecution yet, long-time marijuana cultivation expert and medical marijuana provider Ed Rosenthal will be sentenced Tuesday after being convicted of operating a marijuana grow operation in Oakland. And despite oft-repeated claims that he faced a five-year mandatory minimum sentence, it now appears that he will qualify under federal "safety valve" provisions for a lesser sentence -- possibly even probation, although that remains unlikely.
Rosenthal was convicted in federal court of marijuana trafficking after US District Judge Charles Breyer refused to let jurors hear his defense that his operation was legal under California's medical marijuana Compassionate Use Act and that he was deputized to perform his medical marijuana cultivation duties by the city of Oakland, which he believed would protect him from federal prosecution. Nine of the jurors in the case later denounced their verdicts after hearing the rest of the story, and eight of them are among those calling on Breyer to exercise leniency during sentencing.
Prosecutors argued during the trial that federal law makes no distinction for medical marijuana, that marijuana has no medical value, and that federal law need not recognize the will of California voters. Those same federal prosecutors, perhaps hearing the roaring sound all around them, have asked for a five-year prison sentence, followed by four years of probation. The maximum possible sentence is 60 years. But even the five-year request was undercut by an earlier recommendation from the federal Probation Department that Rosenthal receive a 21-month prison sentence.
Rosenthal's attorneys are asking for probation and community service, arguing in documents filed with the court that Rosenthal was not a drug trafficker but a humanitarian. Rosenthal acted to aid suffering patients, his attorneys argued, he did not seek to profit from his activity, and he believed his activities were legal based on state law and advice from public officials.
Among their filings, Rosenthal attorneys included two letters they hope will have some influence on Breyer. The first letter, from eight of the jurors who convicted Rosenthal, asks Breyer to grant probation. "We feel strongly that Mr. Rosenthal deserves uninterrupted freedom because we convicted him without having all the evidence," the jurors told the judge, their indictment of the legal system that produced that verdict left unspoken but still hanging over their plea.
The second letter should also make Breyer sit up and take notice -- it is from California's highest law enforcement official. In it, Attorney General Bill Lockyer reminded Breyer of the Compassionate Use Act's existence and asked him to take it into account in sentencing Rosenthal. The law "authorizes the possession or cultivation of marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician," Lockyer wrote. "Given the conflict between California and federal law governing the legality of possessing marijuana for medicinal purposes, I urge you to impose the minimum sentence allowed under the federal sentencing guidelines."
Still, it's all up to Judge Breyer at this point. "It's hard to predict the sentence," said California NORML (http://www.canorml.org) head Dale Gieringer, "but probably some prison time. The prosecutors are asking for five years because they say Ed hasn't shown remorse," he told DRCNet, "but I think all the remorse the jury has shown should be sufficient."
And just in case Breyer is watching on his way to work Wednesday -- the media certainly will be -- medical marijuana supporters organized by the aggressive grassroots defense campaign Americans for Safe Access (http://www.safeaccessnow.org) will be rallying and doing street theatre outside the courthouse in San Francisco before Rosenthal's 8:30am sentencing. "It was originally set for 2:00 in the afternoon, " said ASA spokeswoman Hilary McQuie, "but we think Judge Breyer figured out that the middle of the day might not be a good time. We expect a big crowd," she told DRCNet, adding that the San Francisco events are part of a national day of action to kick-off ASA's "Meet the 80%" [who support medical marijuana] summer campaign.
"In addition to the San Francisco action, we'll be doing jury rights education in selected cities. We'll have banners with messages like 'Jurors: Acquit in all Pot Cases: It Could Be Medical,' and we'll be handing out juror information cards," McQuie said. "And we're working with the Marijuana Policy Project (http://www.mpp.org) to do a national day of leafleting outside of the offices of members who haven't signed onto the Truth in Trials Act."
Whatever sentence Rosenthal receives Wednesday, the Justice Department of George Bush and John Ashcroft will have succeeded once again in imposing punishment on a medical marijuana provider. But it will have also succeeded in drawing the country's attention once more to the cruelties of a policy that is increasingly unsupported -- and insupportable.