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 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 painkiller called Darvocet, which in turn yielded to a stronger one, Tramadol. A car crash in 1998 left her with additional spinal trauma and a brain injury. Her whole life revolved 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,” she 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, 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 in 1996 by the body politic of California. But on January 21 in US District Court in San Francisco, the competing desires of California and the federal government are scheduled to meet before a jury, in a clash that could plunge Patricia and millions of others in chronic pain back into the agonies they once endured. It could also send a legendary figure, Ed Rosenthal, to prison for twenty years.
Under 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 Prop 215 the City of Oakland promptly enacted its own ordinance and resolutions. It designated the Oakland Cannabis Buyers’ Cooperative as an agent of the city to carry out policy and in turn deputized Ed Rosenthal to provide medical cannabis.
Rosenthal, 58 and the author or co-author of such books as the Marijuana Grower’s Handbook, Marijuana: The Law and You and the Marijuana Medical Handbook, is the world’s foremost authority on growing marijuana. He supplies starts for people who need marijuana, 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 learner.”
A few years after passage of the California law, the Feds moved to permanently enjoin the OCBC from dispensing medical cannabis. The Justice Department launched a civil proceeding in San Francisco, where District Court Judge Charles Breyer, a Clinton appointee, duly allowed the injunction. The appeals court reversed him. Then the US Supreme Court, with Stephen Breyer recusing himself by dint of his fraternal connection, heard oral arguments. In May 2001 the Court upheld the injunction, ruling that medical necessity is not a defense under the Controlled Substances Act. Federal law vanquished state law.
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Now this was a civil, not a criminal, action. Those enjoined could be held in contempt and suffer monetary sanction. The consensus around the medical marijuana community was that criminal penalties had fallen by the way.
It was scarcely a coincidence that February 12, 2002, was the day when search warrants were executed and Ed Rosenthal arrested. Asa Hutchinson was the newly sworn-in head of the Drug Enforcement Administration. “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 to speak at San Francisco’s Commonwealth Club, expecting that on announcing Ed’s arrest, the crowd would be supportive. Instead, he got booed.
Not long afterward, 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 federal law 21 USC § 841 is a crime. Even Hutchinson conceded that because of the unique circumstances in California and because of customs and practices there, DEA pursuit of medical cannabis is not feasible. But it does represent a slippage and more ambiguity about what Ed Rosenthal and others are supposed to do.
Meanwhile, the full weight of the Justice Department and the DEA, not to mention the far from dispassionate Judge Charles Breyer (like most of those on the federal bench, more prosecutor than judge), bears down on 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. I was enabling people. I was working within the 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 Supreme Court has been similarly trending toward allowing states greater 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.
“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.
