San Francisco Chronicle - Tuesday, June 3, 2003
Bob Egelko, Chronicle Staff Writer

No big send-offs. No wild parties for the icon of the medical marijuana movement.

"I'd like to be a pop culture figure, but I don't think it's going to go that way," Ed Rosenthal said from Los Angeles, where he was attending a publisher's trade show over the weekend. "I'm dealing with constitutional issues and people's rights."

Besides, Rosenthal said, he doesn't think he'll spend a day behind bars, despite prosecutors' request for a five-year sentence on his conviction for violating federal marijuana cultivation laws. "Once this goes into appeals, the laws will be changed and the conviction will be overturned," he said.

Rosenthal, who grew marijuana for patients at a San Francisco dispensary, will go before a judge Wednesday for sentencing. His case has become a national symbol for the clash between state medical cannabis laws -- which allow patients to use the drug to relieve pain and ease debilitating effects of conventional therapies -- and the absolute federal ban on marijuana.

The case is "a wake-up call to the nation about what's happening in California," said Steph Sherer, a medical marijuana patient and executive director of Americans for Safe Access, which supports the state laws and opposes federal intervention. "The people who are being targeted are people who are outspoken."

Rosenthal is outspoken and high-profile -- in books and magazine articles, numerous interviews during and after his trial, and in the "Free Ed" billboard messages posted by local supporters since his conviction. But he's not exactly flamboyant.

His latest book, "Why Marijuana Should Be Legal," co-written with former drug defendant Steve Kubby, is not a summons to turn on, tune in and drop out, but instead is a sober look at what the authors consider the excessive social and financial costs of marijuana prohibition.

NO TIMOTHY LEARY

These are not the 1960s, and Rosenthal is no Timothy Leary.

That may be why he and others like him are so irksome to John Walters, head of the White House Office of National Drug Control Policy.

The marijuana movement activists of an earlier day wore long hair and tie- dye, and the issue was easy to defeat at the polls, as shown by the 2-1 vote against a 1972 California initiative that would have repealed criminal penalties for personal use of marijuana. Today's movement comes in the garb of AIDS and cancer patients and caregivers and seems to have won the support of the voters, if not their leaders.

Walters' office refused to comment on Rosenthal's case. Dr. Andrea Barthwell, deputy director for demand reduction, would say only that federal drug regulation was designed "to protect people from hack medicine" and that "it is an insult to our medical process to say that the best we can do is a smoked weed to help people who have terminal medical conditions."

But Walters was more explicit when Maryland, the most recent of nine states to pass medical marijuana laws, was considering its proposal to reduce criminal penalties for medical use of the drug. He fumed against a "cynical, cruel and immoral effort to use the sick and suffering" to move toward legalization of marijuana.

Federal opposition failed to dissuade California voters from approving the trail-blazing Proposition 215 in 1996 and has been largely unsuccessful in stopping the spread of state medical marijuana laws. But both the Bush and Clinton administrations have been able to limit the effects of those laws by playing the legal trump card of federal drug prohibitions, which override state laws.

CALIFORNIA FOCUS

The federal effort has concentrated on California, where Prop. 215 allows patients to use marijuana with a doctor's recommendation.

Federal authorities have raided pot farms and dispensaries up and down the state, filed numerous criminal charges, obtained prison sentences against at least four growers and have prosecutions pending against about a dozen others, according to advocates. But the case that has captured public attention has been Rosenthal's.

Sometimes described as the world's foremost authority on growing marijuana, the 58-year-old New York native is a longtime magazine columnist and author of more than a dozen books. His arrest in February 2002, on charges of growing marijuana for the Harm Reduction Center in San Francisco, was a coup for drug enforcers. From a public relations standpoint, however, the case has been mostly a nightmare for the government and a windfall for the movement.

MEDICAL ISSUE DENIED

When U.S. District Judge Charles Breyer barred evidence of Rosenthal's medical motives, advocates proclaimed that the voters' will was being thwarted and the jury was being misled. A majority of the jurors apparently agreed, because they disavowed their guilty verdicts soon after the trial when they learned what had been kept from them during the proceedings -- for example, that the city of Oakland had designated Rosenthal as an agent in its medical marijuana program.

Seven jurors and two alternates told Breyer last week in a letter that they oppose a prison sentence for Rosenthal and plan to attend Wednesday's hearing.

Rosenthal will be sentenced under a federal law requiring at least five years in prison for cultivation of more than 100 marijuana plants. But a so- called safety-valve law allows a lesser sentence for nonviolent, first-time offenders who cooperate with authorities and have not acted as leaders or organizers of crimes.

The court probation office concluded that Rosenthal qualified for the safety valve and recommended a year and nine months in prison. Rosenthal's lawyers say his humanitarian motives justify a sentence of probation.

FREE ON BAIL

Whatever the sentence, Rosenthal said he expects Breyer to let him remain free on bail while he appeals, noting that the judge has already found that he poses no danger.

He is confident of winning his appeal, which will focus on the evidence excluded by Breyer -- but added that, win or lose, the cause will be advanced.

"I'm proud of what I did," Rosenthal said. "I take responsibility for what I did. If the court finds that I should go to prison, I think that they (the government) will ultimately regret it."

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