In a public slap in the face to the US Justice Department's jihad against medical marijuana, US District Court Judge Charles Breyer refused to send convicted marijuana grower Ed Rosenthal to prison Wednesday. Rosenthal faced up to 60 years after a federal court jury found him guilty on federal cultivation and conspiracy charges. Prosecutors asked for a five-year sentence, but Breyer sentenced Rosenthal to one day in jail, with credit for time served, and Rosenthal walked out of the federal courthouse in San Francisco a free man. Or almost -- he must also serve three years of federal probation.
"The unique, extraordinary circumstances of this case" influenced his decision, Breyer told the courtroom. Those circumstances include not only the clash between California and federal medical marijuana law, but also the huge public outcry generated by Rosenthal's arrest and conviction.
While Rosenthal has vowed to appeal his conviction, and prosecutors could attempt to appeal Breyer's light sentence -- a dramatic downward departure from federal sentencing guidelines -- Rosenthal's court appearance Wednesday marked the culmination of a case that has inflamed the medical marijuana community in California and focused a national and international media spotlight on the Bush administration's rigid insistence on destroying the medical marijuana movement. In the last two years, Attorney General John Ashcroft has repeatedly sent DEA raiders into California to arrest medical marijuana providers and patients. At least four providers have been sentenced to federal prison, and more cases are pending.
But Bush, Ashcroft and the DEA have paid a price in public scorn and repudiation for their attacks on medical marijuana. Editorializing about the Rosenthal case this weekend, the New York Times called the verdict against him "a miscarriage of justice" and urged leniency. Even California's highest law enforcement official, state Attorney General Bill Lockyer, joined the chorus, feeling the need to remind Breyer prior to sentencing that Rosenthal had acted in accordance with California law. Even worse for the administration in public relations terms was the reaction of the jurors who convicted Rosenthal after Judge Breyer refused to let him use the California medical marijuana law in his defense. Upon hearing the rest of the story after finding Rosenthal guilty, nine of the jurors publicly denounced their verdict as a travesty of justice. They also publicly urged Breyer to be lenient in sentencing Rosenthal.
A jubilant and combative Rosenthal emerged from the courthouse to cheers and thunderous applause from a crowd of sign-waving supporters outside. "I take responsibility for my actions that bring me here today," he said. "I took those actions because my conscience led me to help people who are suffering. This law is doomed," Rosenthal proclaimed. "This is day one in the crusade to bring down the marijuana laws, all the marijuana laws."
Marijuana reform groups were quick to claim victory. "This is a marvelous victory for Ed and arguably for states rights," said the National Organization for the Reform of Marijuana Law's (http://www.norml.org) Alan St. Pierre. "It is certainly a victory for the larger concept of medical marijuana," he told DRCNet.
"When a jury publicly rejects its own verdict, and a federal judge subverts Congress' system of mandatory minimum sentences to let a marijuana grower go free, it is clear we have reached a turning point," said Marijuana Policy Project Project (http://www.mpp.org) executive director Rob Kampia. "Today marks the beginning of the end of the federal war on medical marijuana patients."
And while some wondered whether Breyer's sentence would deprive the movement of a martyr or take the wind out of its sails, Hilary McQuie of Americans for Safe Access (http://www.safeaccessnow.org) was having none of that. "We have enough martyrs already," she said. "I don't want people going to jail. And Ed is an energetic, charismatic public figure. With Ed out of prison, he'll provide plenty of wind for our sails," she told DRCNet.
ASA mounted a major campaign to free Rosenthal through a combination of aggressive tactics and delicate networking. "Public pressure is critical," said McQuie. "Organizing is critical. Attorney General Lockyer didn't decide to write that letter by himself. We asked him to. All of the pressure on Breyer came because ASA and other groups and individuals did a lot of organizing. Breyer felt the public pressure, he sought the path of least resistance, and we cut that path leading to Ed going home this week."
While victory, even a qualified one, is sweet, the battle is far from over. More federal prosecutions of California medical marijuana patients and providers are in the pipeline. The next trial scheduled is that of San Bernadino County patients and growers Anna and Gary Barrett, who were indicted on federal charges days after a state court judge threw out state charges, finding they were protected under the state's Compassionate Use Act. Their trial date is set for July 22.
"ASA will bring all the resources and energy we can to southern California for the Barrett trial," said McQuie. "We'll do what we can, but we're calling for the Los Angeles activist base to come together around this."