Federal Government, Federal Judges, Marijuana

Duby-ous Federal Ruling Leaves Marijuana On Schedule I

On this 4/20, lovers of cannabis and cannabis businesses still have not seen the de-scheduling of marijuana as a Schedule I controlled substance.

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On this 4/20, lovers of cannabis and cannabis businesses still have not seen the de-scheduling of marijuana as a Schedule I controlled substance. The good news, however, is that we have never been closer to seeing marijuana removed from the list of Schedule I drugs. And it just might be the courts that step up to the plate on this one.

In May 2014, U.S. District Judge Kimberly J. Mueller made a groundbreaking decision when it comes to pot. As part of a federal criminal marijuana case out of California, Judge Mueller opted to consider the constitutionality of marijuana’s Schedule I classification under federal law, making Judge Mueller one of the first judges in decades to agree to hear such evidence. This case drew tremendous attention from the marijuana industry because if Judge Mueller found marijuana’s Schedule I status to be unconstitutional, it would assuredly have created a torrent of similar legal challenges in federal courts around the country. What makes this case so unusual is that it was Judge Mueller who seemed to push for conducting an evidentiary hearing on the legitimacy of marijuana’s Schedule I classification in what would have been an otherwise run-of-the-mill federal marijuana criminal matter. As a reminder, Schedule I drugs have no recognized medical value, have a high potential for abuse, and cannot be safely administered even under a doctor’s supervision.

Judge Mueller based her decision to hear such evidence on a footnote from the 2005 case of Gonzales v. Raich, where U.S. Supreme Court Justice John Stevens opened the door to a scientific and constitutional review of marijuana’s treatment as a Schedule I drug:

We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I … Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.

Judge Mueller determined that Stevens’s footnote justified hearing evidence on the Schedule I issue, ruling that “there is new scientific and medical information raising contested issues of fact regarding whether the continued inclusion of marijuana as a Schedule I controlled substance … passes constitutional muster.”

The subsequent evidentiary hearing consisted of five days of heated debate between physicians, drug policy experts, and government leaders. The defense called multiple credible medical and social policy experts to testify regarding the medicinal value of marijuana. The federal government called only one witness, Dr. Bertha Madras, a Professor of Psychobiology at Harvard Medical School and the former drug czar under George W. Bush. Dr. Madras based her testimony on the claim that “marijuana has no accepted medical value,” and that marijuana has not satisfied the “high standards of proof necessary to obtain FDA approval.” She also claimed that marijuana “contains significant amounts of toxic chemicals,” and that there is “no such thing as medical marijuana.” With over 23 states and D.C. having some form of marijuana decriminalization or legalization, whether medicinal or for adult use, Dr. Madras’s testimony seems a tad out of touch with reality.

Just last week, after months of reviewing the evidence and testimony, Judge Mueller denied defendants’ motion to declare marijuana’s Schedule I listing unconstitutional. In her verbal ruling denying de-scheduling, Judge Mueller acknowledged that it has been 45 years since cannabis was originally scheduled as a Schedule I drug and the cultural, medical, and social landscape surrounding cannabis has changed significantly since then. Nonetheless, she held that because the motion to de-schedule challenged a federal statute enacted by Congress, the court “has to tread lightly.” Judge Mueller went on to hold that the Schedule I status of cannabis “passes muster under the ‘rational basis test’ and that it is up to Congress to change the statute.” The rational basis test is used to determine whether a federal law is “rationally related” to a “legitimate government interest,” and it is an incredibly easy test for a law to pass. Judge Mueller added that it was “not the court and not the time” to essentially overrule Congress.

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Judge Mueller has not yet published her written decision and it is also not known if her ruling will be appealed. But if it is appealed, there is at least a decent chance that this case will eventually make it to the Supreme Court, and that is the silver lining here. It should not take extraordinary gymnastics of logic and reason to conclude that marijuana does not deserve its Schedule I status.

Though Judge Mueller may not have had the appetite to go against the Controlled Substances Act’s treatment of marijuana, we now have a case that may end up at the Supreme Court where real change is possible. Consequently, the courts’ de-scheduling of marijuana is not yet a moot point.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at [email protected].

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