FEDERAL PERSECUTION

Ed Rosenthal, a medical marijuana advocate, is to be sentenced next week on
marijuana cultivation charges. His conviction, by a California jury that was
made to believe he was a common drug trafficker, was a miscarriage of
justice. A federal judge may now be on the verge of compounding the wrong by
sentencing Mr. Rosenthal to prison.

Growing marijuana for medical use is legal under the California
Compassionate Use Act, passed by the voters in 1996, and Mr. Rosenthal was
authorized by the city of Oakland to grow medical marijuana. But federal law
does not distinguish between growing medical marijuana and run-of-the-mill
drug cultivation. At Mr. Rosenthal's trial, Judge Charles Breyer prohibited
the jury from hearing a medical-marijuana defense.

When the jurors learned the facts after the trial, they were dismayed. Nine
of the 12 wrote to the judge, saying they had convicted Mr. Rosenthal
"without having all the evidence." They asked the judge not to sentence the
defendant to prison. California's attorney general, Bill Lockyer, has urged
the judge to take account of the Compassionate Use Act and to impose the
minimum sentence under federal sentencing guidelines.

Mr. Rosenthal could receive up to 60 years in prison. The prosecutor has
asked for five years, and the federal Probation Department has recommended
21 months. But Mr. Rosenthal should not receive any prison time at all. It
is a waste of law enforcement resources to prosecute and incarcerate medical
marijuana cultivators. And it is particularly wrong to do so in a state,
like California, that has expressly made it legal, after a trial in which
the jurors were not told the full story.

There is considerable political pressure on federal judges now not to
deviate from federal sentencing guidelines. But this is a case in which
judicial independence is needed. Judge Breyer should not sentence Mr.
Rosenthal to prison.