The experience of Ed Rosenthal of Oakland, California, accelerates the day when heavy dilemmas in our legal system might just force a fresh look at our marijuana laws. Presumably that will have to happen when state legislators, congressmen, and presidents are in recess, because the great enemy of sensible reform has been, of course, politicians high from righteousness.
What happened to Rosenthal was that he was convicted of marijuana cultivation and conspiracy, facing a conceivable sentence of l00 years in prison and a fine of $4.5 million. The defense attorney had been forbidden by presiding Federal District Judge Charles Breyer to advise the jury of the perspectives of the defense. The city of Oakland, instructed by a statewide proposition in 1996, had enacted an ordinance authorizing the growth of marijuana for medical use. The judge took the flat position that local laws do not override federal laws; therefore the verdict could not be influenced by the legal contradiction, and therefore the jurors shouldn’t be sidetracked by hearing about it. The reasoning was identical to that of Judge George King in the case of computer guru and poet Peter McWilliams. Judge King did not permit McWilliams to base his defense on the California initiative. McWilliams died from AIDS, while awaiting sentencing, unrelieved by the marijuana that critically lessened his nausea.
Sentencing day for Rosenthal was at hand on June 5, and there was some commotion when the thought was expressed that the guilty finding could mean life in prison. One juror had told the press that if she had known such might be the consequence of a guilty finding, she, and presumably other jurors, would not have voted as they did. The day came, and Judge Breyer, perhaps with a wink of the eye, sentenced Rosenthal to one day in jail and a $1,000 fine.
Now Ed Rosenthal is not to be confused with a stray felon who took a toke at an outdoor movie with his date. Oh no. Rosenthal is a full-time practitioner of resistance to marijuana legislation. He has written several books, totaling in sales over 1 million. In one of his most recent, The Closet Cultivator, he outlined how to build an indoor-marijuana-growing system impossible to detect through any method other than betrayal. When arrested, he was linked to a nearby warehouse full of the drug, ostensibly consigned for medical use. Rosenthal had been teasing the law along about as provocatively as one can do. He had a monthly radio show, and a little while before his arrest his guest was San Francisco’s district attorney, Terence Hallinan, who praised efforts by medical-marijuana cooperatives and permitted himself the obiter dictum on existing laws that “the government anti-drug policy is a big lie that’s supported by a thousand other lies.”
Eric Schlosser of The Atlantic Monthly has published a deeply informative and readable book called Reefer Madness. He wonderfully illustrates the complexity, contradiction, and futility of extant drug laws. Although Governor Clinton of Arkansas introduced legislation to lessen state penalties for marijuana, he went on, as president, to treat marijuana as if it were as innocent as adultery. He doubled the arrests for marijuana infractions. When Nixon declared his tough-drug policies, athwart the recommendation of his own commission which had advocated licensing marijuana for individual home consumption, arrests climbed to over 100,000 per year. In 2001, 720,000 Americans were arrested for pot. About 20,000 inmates in the federal system have been incarcerated primarily for a marijuana offense. Those in state systems would equal that figure, and exceed it.
The problem is more than the laws’ contradictions. The Uniform Sentencing Act has given prosecutors, not judges, almost plenary powers over defendants, power ruthlessly used to extract information and to encourage duplicity and to make property rights insecure. Judicial process is convoluted to the point where a judge can reasonably exercise a choice between 100 years in prison and one day in prison.
The marijuana laws can most directly be compared to the Prohibition-era laws, which didn’t work, undermined the law, and were capriciously enforced. Pot consumption varies, but not in correlation with the laws’ throw-weight. If you buy an ounce in New York State, that could bring you a fine of $l00; in Louisiana, a jail sentence of 20 years. Ed Rosenthal is quoted by author Schlosser. Will the laws in America dissipate, as they have done in Europe? He doesn’t think so. “They’ve made the laws so brittle, one day they’re going to break.” The whole edifice of prohibition would come down, he predicted, “like the fall of the Berlin Wall.” Schlosser nicely summarized Rosenthal’s prediction. “A group of powerful, white, middle-aged men will meet in a room to discuss what to do about marijuana. And they will reach the only logical conclusion: tax it.”
Like booze, some will then go on to abuse it, though with consequences less dire.