Convictions and conviction

Posted: Jun 06, 2003 12:00 AM

Shame on U.S. District Judge Charles Breyer for sentencing medical-marijuana maven Ed Rosenthal to one day behind bars -- time already served -- followed by three years' probation. In doing so, Breyer sent the dangerous signal that if you don't like a law, you don't have to obey it.

Readers of this column are aware that I believe medical marijuana should be legal. Truth be told, I think marijuana should be decriminalized. But there's something wrong when a federal judge allows a convicted criminal to basically get off because he disagrees with the federal law.

Some background: In 2002, the feds arrested Rosenthal for growing marijuana for the Harm Reduction Center in San Francisco. During the trial, Breyer stymied defense attempts to bring up Proposition 215, the voter-approved state medical marijuana initiative, as well as the fact that Oakland officials may have deputized Rosenthal to carry out the city's medical marijuana program.

When jurors learned of Rosenthal's "Deputy Ed" status after they convicted him, they were furious. As Rosenthal told me before his "sentencing," Breyer had kept jurors from learning "the whole facts."

But Breyer was right to try to prevent "jury nullification" -- that is, jurors ruling "not guilty" because they don't like the law.

Too bad the good judge then decided that, rather than sentence Rosenthal to 21 months as the court probation office recommended, he could jiggle the facts so that he could do what he wouldn't let a jury do.

Defense attorney Dennis Riordan faulted news reports for characterizing the case as a battle between federal and state authority. Au contraire, Riordan told the court, the defense was based on a "highly sophisticated argument" (if he did say so himself) that Oakland created an "immunity exception" when it deputized Rosenthal.

Breyer disagreed -- but then told the courtroom that Rosenthal, "as a member of the general public," couldn't be expected to know that the deputization had no force under federal law.

Bunk. Rosenthal is not a "member of the general public." He's an informed activist. He used to write the "Ask Ed" column for "High Times" and "Cannabis Culture." He calls himself the "Guru of Ganja." He knew better.

Call me old-fashioned, but I remember when those who engaged in civil disobedience expected to be punished and accepted it. Now they break the law, and their attorneys argue that their clients are so principled, they shouldn't have to go to jail.

And I have to agree with Assistant U.S. Attorney George Bevan, who argued that when activists win lighter sentences, it leads to "disparate sentencing."

"Disparate sentencing" is the antithesis of "equal justice."

I'm happy for Rosenthal and his family. I saw the relief on his face Wednesday morning.

Still, there is a price to pay when activists feel free to break laws they don't like. Consider Eric Rudolph, the Olympic bombing suspect and abortion foe who pleaded not guilty to bombing an abortion clinic in 1998. Yes, I know, Rudolph is accused of killing two and wounding others, while Rosenthal grew pot.

But Rudolph's supporters share with Rosenthal's backers a deep hostility for federal law enforcement and a belief that their guy shouldn't have to go to jail because his convictions justify what he did.

In this country, the courts are supposed to punish people -- or not punish people -- for what they do, not for what they think.