The Cannabis Civil War

January 27, 2003 4:17 PM

Ed Rosenthal - medical marijuana activist and one of the world's leading experts in cannabis cultivation - is currently facing a mandatory 20 year-to-life sentence in California court for operating a city grow-op. Not only was he obeying state law, but the City of Oakland requested his help. U.S. District Court Judge Charles Breyer has already thrown out all possible defenses of this kind and is currently pursuing a gag order to stifle media and public outrage.
Forget, for a moment, that 3 out of 4 Americans are in favor of legalizing cannabis for medicinal purposes. What is the purpose of voter initiatives and statewide legislation if the federal government and judicial system are willing to completely ignore the decisions of state and local government?
posted by BirdD0g (33 comments total)

While this may not be a 'best of the web' link like we prefer here on Metafilter, it is one of the most interesting, and mostly unpublicized, court battles happening in the United States right now. I hope it qualifies as 'interesting enough' for ya'll.
posted by BirdD0g at 4:26 PM on January 27, 2003

I've got to ask, even being for legalization, where the heck did you get the "3 out of 4 Americans" data from?
posted by Be'lal at 4:27 PM on January 27, 2003

Unpublicized? Both the NY Times and CNN covered it last week.

All the same, I hope that Ed wins. The government is certainly stacking the deck in their favor.
posted by togdon at 4:40 PM on January 27, 2003

Good post and a very timely one as well.
It was my understanding that they were pursuing this on grounds of breaking Federal laws.
posted by effer27 at 4:45 PM on January 27, 2003

But Republicans are the state's rights people, right?
posted by pjgulliver at 4:50 PM on January 27, 2003

But Republicans are the state's rights people, right?

As long as you're referring to the Right rights.
posted by badstone at 4:52 PM on January 27, 2003

The fact of the matter is that it is illegal under federal law to pass out pot. Since federal laws override state laws, Ed has no case.
posted by mr. man at 4:59 PM on January 27, 2003

But, uh, where does the Constitution give the Fed the power to regulate this? Nothing's moving across state lines here. Hell, just about nothing's crossing city limits here.
posted by badstone at 5:04 PM on January 27, 2003

The fact of the matter is that it is illegal under federal law to pass out pot.

Why should federal law apply? So long as the drug isn't being shipped between states, how is it even under federal jurisdiction? This sort of issue seems precisely what the federal system was designed for: the legality of marijuana should be decided on a state-by-state basis.
posted by mr_roboto at 5:06 PM on January 27, 2003

> What is the purpose of voter initiatives and statewide
> legislation if the federal government and judicial system are
> willing to completely ignore the decisions of state and local
> government?

Progressives all cheered when federal power was being used to override state school-segregation laws (n.b., by a Republican president, namely Ike.)

It's very hard to tell the feds "Override when I want you to but don't override when I don't want."
posted by jfuller at 5:14 PM on January 27, 2003

"A defendant's conduct during the course of proceedings is a factor in sentencing," the judge said.

The jury is supposed to disregard anything not presented in court, any of their personal feelings (both about the defendant and as to right and wrong), and everything but the law in question, and yet the judge can pull this shit, basically telling people they have to behave how he wants them to, regardless of the law? And why the hell is the prosecutor composing the gag order?
posted by Nothing at 5:14 PM on January 27, 2003

Note to self: Don't ever sell drugs to anyone anytime, even if someone tells me its my job and its legal. Yes, even if its the government.
posted by PigAlien at 6:11 PM on January 27, 2003

Progressives all cheered when federal power was being used to override state school-segregation laws (n.b., by a Republican president, namely Ike.)

The constitution gives the federal government the power to guarantee equal protection and voting rights under the 14th and 15th amendments. Their are no similar amendments giving the federal government the power to regulate what substances its citizens ingest.

Well, there's #18, but that was repealed.
posted by mr_roboto at 6:19 PM on January 27, 2003

Ah, America. Home of the brave, land of the free.
posted by five fresh fish at 6:23 PM on January 27, 2003

"Since federal laws override state laws...".
This is not exactly true. The tenth amendment of the US Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people". This case is a lot like Ashcroft's losing attempt to nullify the Oregon Assisted Sucide law; Ashcroft issued a directive that would have banned any lethal prescriptions, deciding they did not meet a "legitimate medical purpose" under the federal Controlled Substances Act...same thing as saying there is no medical use for marijuana. Eventually the Feds are going to lose this case for the same reason...there is no overriding Constitutional imperitive which gives them standing powerful enough to override the voters of various states on this issue.
posted by Mack Twain at 6:40 PM on January 27, 2003

The constitution gives the federal government the power to guarantee equal protection and voting rights under the 14th and 15th amendments. Their are no similar amendments giving the federal government the power to regulate what substances its citizens ingest.

Not saying you're wrong on the drug issue, but this mean we can just do away with the whole FDA?
posted by obfusciatrist at 6:52 PM on January 27, 2003

Eventually the Feds are going to lose this case for the same reason...there is no overriding Constitutional imperitive which gives them standing powerful enough to override the voters of various states on this issue.

Are you sure about that, Mack Twain? Not so much about the second part -- I wouldn't presume to untangle the legal knot about where the constitution sez you get to override the will of the people, since different governments have set the "clear and present danger" at different levels at different times (not even to mention the sundry privacy-right rollbacks being undertaken in the aftermath of Sept. 11) -- but about the first. I'm actually asking here: what would the current (or likely near-future) upper-level courts (including the Supremes) do about this one? It's a perfect clash of the States Rights mantra with the Re-Empower the Police ideology; and both seem pretty damned important to the new judicial order.

My presumption has been that in the case of drugs, the current generation of Republican-appointed justices is generally going to swing on the authoritarian side. They just don't buy this "medical" crap. That doesn't mean they won't rule in ways that seem contradictory when it comes to curtailing federal regs that infringe on states rights to discriminate against gays or pollute. I think they're perfectly capable of what that some Romantic poet or other called "negative capability" -- holding two opposing ideas in your head simultaneously, and feeling just swell about it.

But is there evidence the other way in the form of recent rulings by the Rehnquist court, or major rulings at the upper level of the Federal courts? Another, perhaps simpler way of putting it -- where and how are they going to lose? At the Appeals level? Or in some longer process of electoral response, where voters eventually elect people who eventually put judges on the bench who are uninterested in continuing the comedy of the War on Drugs?
posted by BT at 7:00 PM on January 27, 2003

It seems as if this was a set-up by the feds. They say that the probable cause for the search came from the smell of the plants, but they were starter plants that were too young to give off any noticeable odor. If they said that they knew the plants were there because he was growing pot for medicinal purposes, then they would have to let the jury know about the California law that allowed him to grow it. This is a test case by the feds to see if they can keep a lid on the reefer. They may get the ruling that they want, but they are not going to look good doing it.
posted by sp dinsmoor at 7:35 PM on January 27, 2003

It's somewhat ironic, as noted, that no one cares about states rights (and by states rights, I mean Constitutional states rights, not the right to hang black people which is paraded by the far right as a state's right) until their own guy is affected by it.

No matter what side you take on the issue, drug legalization seems like quite a state's right issue - 10th amendment and all that. Then again, since the same people who want Rosenthal free are the ones who argue for, among other things, nationalized health care, I don't quite think the "We've always been for state's rights" tactic is going to work.
posted by Kevs at 8:41 PM on January 27, 2003

Override when I want you to but don't override when I don't want.

Don't forget about the Libertarians here. Progressives and Libertarians both favor looser marijuana laws, yet one side leans right and the other left. It's a damn confusing country sometimes.
posted by BirdD0g at 8:49 PM on January 27, 2003

Agreed, Kevs -- I'd go further, and suggest as that those contradictions I pointed out above apply to both left and right, from where I sit, placing your bets on getting a better society on the belief that the local legislatures will enact justice where the Feds do harm -- or the reverse -- is probably barking up the wrong tree. There may be a 10th Amendment argument that works for getting Rosenthal free, but in the long run that won't insure either more justice nor a sensible drug/health policy. State legislatures are as corruptible and fallible as is Congress, sometimes moreso.

I don't mean "don't pursue the most reasonable interpretation of the Constitution" -- just don't expect that there's an ideal balance of state/federal power hidden in that document that if, realized, will solve many of our social problems. They'll continue to exist, and continue to require political remedies.
posted by BT at 8:50 PM on January 27, 2003

Then again, since the same people who want Rosenthal free are the ones who argue for, among other things, nationalized health care, I don't quite think the "We've always been for state's rights" tactic is going to work.

My logic parsing facilities choked on this sentence. And that's beside the fact that it's a classic strawman argument. Even if we assume that many advocates of medical marijuana support a restructuring of the heath care system, there aren't many advocates of "nationalized heath care" in the U.S. What most reformers advocate is a single-payer health care system, in which providers of heath care continue to be private institutions while the government fills the role currently filled by insurance companies and HMOs. All this aside, however, how does the structure of the health care system have anything to do with states' rights? Are you claiming that the constitution prohibits the federal government from providing services that are not specifically delineated in the constitution?
posted by mr_roboto at 9:00 PM on January 27, 2003

The constitution gives the federal government the power to guarantee equal protection and voting rights under the 14th and 15th amendments.

Which has nothing to do with school segregation and even less to do with segregation of private establishments (i.e., the Woolworth's lunch counter).

The liberals have shot themselves in the foot with this one.
posted by IshmaelGraves at 9:25 PM on January 27, 2003

Using federal power to desegregate South: Good.
Using federal power to arrest Ed Rosenthal: Bad.

Is this really that difficult to see? Sometimes, the federal government is right, when the state government makes bad policy. Sometimes, the state government is right, when the federal government makes bad policy. You don't have to buy a Dukes of Hazard T-shirt if you want Ed Rosenthal free. Sometimes laws are bad, or outdated, or both. District attorneys have lattitude on which cases they will and won't prosecute. There's plenty of room here for a good fight.
posted by condour75 at 9:28 PM on January 27, 2003

I expect this to be overturned in the ninth circuit court of appeals; if it goes to the Supreme Court it's anybody's guess, but Sandra Day O'connor's 1997 statement that "States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. ... In such circumstances, 'the ... challenging task of crafting appropriate procedures for safeguarding ... liberty interests is entrusted to the 'laboratory' of the States ... in the first instance.'" gives some hope. US District Judge Jones in Oregon denied the right of the federal government, in applying a federal law, EVER to determine what is or is not a legitimate medical purpose. He said that must be left to the states, so the thought is certainly out there.
posted by Mack Twain at 11:35 PM on January 27, 2003

The liberals have shot themselves in the foot with this one.

Then call me Barney Fife because I will always fight racism and advocate for sensible drug laws.
posted by nofundy at 5:07 AM on January 28, 2003

mr_roboto: The constitution gives the federal government the power to guarantee equal protection and voting rights under the 14th and 15th amendments.

IshmaelGraves: Which has nothing to do with school segregation


SCOTUS disagreed with you on that.
posted by tolkhan at 5:35 AM on January 28, 2003

I suspect that this is more about Karl Rove' re-election strategy for GW - which doesn't require California's electoral votes - than anything else: fighting more liberal pot laws will play well in those states that carried GW in 2000, where many will be glad to see federal power used against those crazy liberal weirdos on the west coast. Rove's writing off Massachussetts too, so it gets the benefit of relaxed power plant regulations in Ohio - more air pollution wafting over to benevolently screen the liberal northeast from the extra UV coming through because of decreased statospheric ozone levels from the Ozone Hole. Only $9.95. Get your genetically improved blind six legged cow from exotic Tierra Del Fuego! allow 6-8 weeks for delivery. (Shipping/Handling charges apply)
posted by troutfishing at 5:46 AM on January 28, 2003

They may get the ruling that they want, but they are not going to look good doing it.

This is not very important to the people in the fed. gov. that are pushing this. They are very insulated from any popular political pressure. The ultimate boss of both the DEA (which I'm assuming was the federal agency that executed the initial search) and the federal prosecutor prosecuting this case is the Attorney General, who is only answerable to the president. And it seems that because of the mess that Richard Nixon made of the Justice Dept. during Watergate, most presidents since then have been reluctant to get too hands-on with their AG once he or she has been selected and confirmed. So in most cases involving any of the agencies under the umbrella of the Justice Dept., what the AG wants, the AG gets.
posted by deadcowdan at 7:08 AM on January 28, 2003

I've got to ask, even being for legalization, where the heck did you get the "3 out of 4 Americans" data from?

Check this out, and this.

Surveys say: 3 out of 4. Where I live, in the Second District of Wisconsin, recent approval numbers were over 87%. That's nearly 9 out of 10, but it's a very liberal city.
posted by BirdD0g at 7:52 AM on January 28, 2003

I'd be more sympathetic to medical marijuana as a political cause if I didn't think that, as a cause, it is a total crock. The goal of the medical marijuana movement is total legalization or decriminalization, including for recreational use.

The movement people know it, and their opponents know it. A lot of people in the middle (i.e., the voters) DON'T know it, and vote for medical marijuana measures on the grounds of compassion for the gravely ill.

What is a shame is that there is good evidence that marijuana can help some sick people, and they're probably only being hurt by being used as stalking horses for potheads.
posted by MattD at 8:21 AM on January 28, 2003

MattD–

Let's be realistic. The people who know the most about cannabis cultivation and its benefits are probably users themselves. I don't think Ed Rosenthal got to be a leading expert on the subject of medical marijuana without 'dabbling' a bit recreationally, or a great deal for that matter.

What I find most upsetting in his case, is that he was ASKED by the City of Oakland to do this and now may go to prison for a long time. This situation isn't so much about medical MJ, as it is about a group of citizens' ability to effect change in their community without fearing the feds. IMO, the federal government has absolutely no business overriding the State of California on this type of issue.
posted by BirdD0g at 9:10 AM on January 28, 2003

Mr. Roboto:

"Are you claiming that the constitution prohibits the federal government from providing services that are not specifically delineated in the constitution?"

That's exactly what I'm saying. I quote: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The tenth amendment of the Constitution. I don't know how that's not clear - it says exactly that the federal government may not provide services specifically delineated in the Constitution. That was the whole point of the amendment.
posted by Kevs at 10:42 AM on January 28, 2003