Experts don't see Rosenthal pot case as a landmark
Feds not likely to ease off on tough policies

Bob Egelko, Chronicle Staff Writer

Friday, June 6, 2003 -- Analysts were skeptical Thursday of predictions by medical marijuana advocacy groups that a judge's refusal to sentence Bay Area pot icon Ed Rosenthal to prison would eventually turn around the federal government's hard- nosed policies on the drug.

A rebuff in a single case -- even a high-profile prosecution like the Rosenthal case -- probably won't slow the Bush administration's crackdown on medical cannabis in California, several commentators agreed.

"It seems to me unlikely that the feds are going to give up very easily on this issue," said Jeffrey Miron, an economics professor at Boston University and research associate at the libertarian Independent Institute.

"I'm highly doubtful whether the Bush administration will allow one federal district judge to stop its program," said Evan Lee, a professor of criminal law and federal courts at the University of California's Hastings College of the Law in San Francisco.

But Lee said Wednesday's ruling by U.S. District Judge Charles Breyer "lends a great measure of legitimacy" to medical marijuana advocates' criticism of federal policies.

In light of Breyer's solid judicial reputation, Lee said, some public officials may conclude that "the political center of gravity isn't where (they) thought it was," a shift that might ultimately force a change in administration policy.

Breyer's stunning decision, in a packed San Francisco courtroom, spared Rosenthal from the five-year prison sentence normally required for cultivating more than 100 marijuana plants. The judge cited the "extraordinary, unique circumstances of this case" -- referring to California's medical marijuana law and to Rosenthal's belief that he was growing marijuana legally as part of a city-sponsored program in Oakland.

National marijuana advocacy groups had been hungering for a legal victory and seized on Breyer's decision as an omen.

'BEGINNING OF THE END'
For example, Robert Kampia, executive director of the Marijuana Policy Project, called the ruling "the beginning of the end of the federal war on medical marijuana patients" and said Rosenthal's case "will be seen as the tipping point, the moment when it became obvious the law had to change."

Steph Sherer, executive director of Americans for Safe Access, said the ruling should encourage federal judges in other cases to give defendants "a full hearing based on all the evidence." She said more than a dozen federal medical marijuana prosecutions are pending in California and at least seven growers have been sentenced to prison, some for terms as long as 10 years.

If Breyer's ruling is upheld on appeal, other federal judges in California may follow his lead, and the Justice Department would probably stop prosecuting cases in the state, said John Eastman, law professor at Chapman College in Orange County and director of the Claremont Institute Center for Constitutional Jurisprudence.

But both he and Lee, the Hastings professor, said the administration was likely to appeal the ruling all the way to the U.S. Supreme Court, with a good chance of a reversal that would send Rosenthal to prison.

Federal prosecutors were typically tight-lipped, saying only that no decision had been made on an appeal. But Richard Meyer, spokesman for the U.S. Drug Enforcement Administration in San Francisco, said, "We're not deterred one bit."

Meyer also said Rosenthal's speech to supporters Wednesday, calling for the repeal of all marijuana laws, was evidence that "the so-called medical marijuana initiative was a smoke screen, that the real agenda of these people was to legalize not only marijuana but all drugs."

BROAD IMPACT
Miron, the Boston professor whose forthcoming book, "Drug War Crimes," endorses drug legalization, said the federal government is right in one respect: Medical marijuana legalization laws have the potential of crippling overall marijuana enforcement.

"These laws have an enormous impact because there are so many conditions for which you can use marijuana as medicine," he said. "The feds understand that (allowing medical marijuana) would open the floodgates" and will maintain their hard line on the issue, he said.

For the same reason, he said, congressional legislation that would allow a medical defense to federal marijuana prosecutions in states with medical marijuana laws will face unyielding opposition from the DEA and other federal drug enforcers, and a certain veto from President Bush.