Pubdate: Tue, 10 Jun 2003
Source: National Review Online (US Web)
Copyright: 2003 National Review
Author: William F. Buckley, Jr.
Note: Posted as an exception to MAP's web only source policies.


Our Current Prohibition

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 100 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

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 $100; 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. 
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MAP posted-by: Richard Lake