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.