courtroom marijuana court
Ending Marijuana Prohibition

Federal Judge Hears Closing Arguments In Marijuana Rescheduling Case

courtroom marijuana courtBy Paul Armentano, NORML Deputy Director

Yesterday in Sacramento a federal judge heard closing arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification.

At issue is whether a rational basis exists for the government’s contention that cannabis is properly designated as a schedule I substance — defined as possessing a “high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety … under medical supervision.” A federal court has not heard evidence on the matter since the early 1970s.

Lawyers for the federal government argue that it is rational for the government to maintain the plant’s prohibitive status as long as there remains any dispute among experts in regard to its safety and efficacy. Defense counsel — attorneys Zenia Gilg and Heather Burke of the NORML Legal Committee — contend that the federal law prohibiting Justice Department officials from interfering with the facilitation of the regulated distribution of cannabis in over 20 US states can not be reconciled with the government’s continued insistence that the plant is deserving of its Schedule I status under federal law.

In October, defense counsel and experts presented evidence over a five-day period arguing that the scientific literature is not supportive of the plant’s present categorization. “Numerous clinical trials have been conducted using whole plant marijuana and have concluded the evidence strongly suggests therapeutic value,” defense counsel affirmed in a written brief filed with the court last month. “Physicians in 23 states and the District of Columbia have been recommending whole plant cannabis for treatment of a myriad of medical conditions. The United States, through SAMHSA (Substance Abuse Mental Health Services Administration, a branch of HHS), holds a patent [on the therapeutic utility of the plant.]”

“… It is unimaginable to believe that if heroin, cocaine, methamphetamine, or even over-the-counter medications were being distributed in 23 states and the District of Columbia, Congress and the President would abdicate all regulatory authority to those jurisdictions, and then cut off all funds … to intervene in related distribution activities. … Even the most vivid imagination would be hard pressed to reconcile such action with a ‘rational belief’ that marijuana is one of the most dangerous drugs in the nation.”

In a brief filed with the court by the federal government, it contends: “Congress’ decision to treat marijuana as a controlled substance was and remains well within the broad range of permissible legislative choices. Defendants appear to argue that Congress was wrong or incorrectly weighed the evidence. Although they failed to prove even that much, it would be insufficient. Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”

They add: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”

The Judge is anticipated to rule on defense’s motion within 30 days.

Legal briefs in the case, United States v. Pickard, et. al., No. 2:11-CR-0449-KJM, are available online here.

Source: NORML - make a donation

  • Jeff deutsch

    Marijuana is more than just “Good Medicine.” For a wide variety of diseases its the best medicine there is — in many cases the only one that works. For more than a quarter century, oncologists have known that Medical Marijuana works wonders to ease the pain and suffering of Cancer patients and dramatically reduce the horrible side effects of chemotherapy and radiation. Now, the results Cancer Patients are seeing with high dose Medical Marijuana oil, even at stage 4, are simply miraculous. Its immoral to leave Marijuana on Schedule 1 for even one minute longer. I hope the Judge decides to remove it from Schedule 1. But even 30 days is too long to wait. I hope she issues her ruling doing so today, or that the President, the FDA and the DEA deicides to remove it from Schedule 1, today. Every minute another American dies of Cancer — and its a horrible way to die. Somebody needs to take action, today, to remove it from Schedule 1. America’s Physicians and the private sector can do the rest. — America’s Cancer patients can’t wait .

    • Jean Anne Lewis

      Well said. :-)

    • Rosie D

      Amen Sister, Not only are there America’s Cancer Patients, there are millions of people like me suffering from chronic pain diseases that basically have no quality of life. Chronic rheumatoid arthritis, lupus, fibromyalgia, to name a few) They too should be offered the option of medical marijuana if warranted by their disease and prescribed by their doctor.

  • Nathaniel

    They add: “Congress is not required to be ‘right,’ nor does it matter if
    the basis on which Congress made its decision turns out to be ‘wrong.’
    All that is required is that Congress could rationally have believed
    that its action — banning the production and distribution of marijuana —
    would advance its indisputably legitimate interests in promoting public
    health and welfare. Because qualified experts disagree, it is not for
    the Courts to decide the issue and the statute must be upheld.”

    Am I here? Is this defense really happening in a court of law? The lawyers utilizing this position should have been warned that they would be in contempt of court if they proceeded along this course.

    • Helen

      As painful and irrational as it sounds, the prosecutors are right about what the rational basis test requires. The fact that some experts believe cannabis is not an accepted medicine shows that Congress had at least some conceivably rational basis for the Schedule 1 classification. That’s the law and you can thank the Supreme Court for it.

      The rational basis test needs to be modified to provide justice in special circumstances like this, where the law at issue is so highly politicized that Congress is not likely to be able to fix it, even though most people – which seems to include the prosecutor in this case – believe it’s a bad law. Maybe this situation calls for application of the “rational basis with a bite” test, or maybe Judge Mueller will really make a name for herself by creating a new version of the test for this kind of highly politicized law.

      • Nathaniel

        There is no way the feds can continue to reconcile a schedule 1 filing while simultaneously continuing to supply 4 patients they oversee.
        The verdict is in, despite how the minutiae is twisted to uphold bad law. Unfortunately, it is now up to the courts to create competent precedent and rid us of this duplicitous argument.

    • Leonard Hester

      Get it legal nation wide!

  • Jetdoc

    I sure hope this Judge sees through their argument. It’s been a flimsy argument since its inception. I guess we’ll find out in 30 days or so.

    Drum roll……….

  • Johnny oneye

    “unknown unknowns”
    dribble dribble , memos, finding memos
    didnt get the memos
    where the hell is Nancy no no
    #cannabinoids
    #cannabutter
    #efficacy
    #apoptosis
    #anandimide
    #ceramide
    #TRICHOMETRY
    #cb1 recptor
    #cb2 receptor
    #cbd
    #delta9 bravo
    #Money blunts cars and cocaine

  • Jean Anne Lewis

    Weed, it does the body good. :-)

  • claygooding

    Congress did not decide on marijuana’s classification but a committee hand picked by Richard Nixon did by placing it in Schedule 1,,when asked for the scientific proof that marijuana was a dangerous drug the DEA stated they had none at this time but studies were in progress that would prove marijuana to be a dangerous drug.

    No scientific proof has been presented yet,,over 4 decades later.
    All that can be verified by committee records.

    • Jordan Shorette

      very true it was placed on schedule 1 under a temporary basis that still hasn’t been scientifically proven to belong in schedule 1. science supports facts and the facts say the benefits far far outway any dangers. the prosecution sounds like a spoiled brat kicking and screaming.

      • Valient

        There are articles explaining the whole case. It happened at the end of October 2014-Nov 2014. Then the judge allowed time for additional briefings/evidence from both sides, and now had her final hearing. The government’s defense was terrible. Their expert witness Harvard Dr. claimed her expertise was because she had read the research, but never actually had any medical/marijuana experience. When confronted with other studies that disproved her, she claimed she hadn’t read those. When her own studies were used against her, she claimed they were bad science minutes after using another part to claim some harm.

        The defense called her out on it.They presented evidence of the government’s patents and the patients who get federal medical marijuana grown by the government for over 30 years. They presented a large amount of positive evidence and scientific research.

        So, yeah, this is the government’s last ditch effort.

        • Jordan Shorette

          Haha I read up on it too lol but very good summary. It’s obvious the Feds didn’t even prepare expecting a 1970s era shoe in, they’ve got to know what they are saying is bs.

        • Silly Rabbit

          Governments Case was weak and just the one witness was poor and the fact the witness was both bias and had conflicting testimony the case should go to the Defense but and it is a big BUT ……

          Are there some underlying Laws or Rules whereas the Judge will be forced to rule in the Government’s favor …. Or to say another way: Does the Government have a “LoopHole” to wiggle out of the case?

        • It is my opinion the Government threw the case.

          • newageblues

            Hmm. Holder seemed to be throwing rescheduling in Congress’ .lap recently, so it would make sense that the Obama administration would be happy to have the courts resolve it.
            This is going to be very disappointing if the judge rules in favor of the cannabis haters.in spite of all the evidence.

  • Silly Rabbit

    Either way I see this can moving to higher court …. Hope it gets declassified!

  • AntiIgnorant

    Free the herb from political tyranny!!!

  • Jordan Shorette

    Anyone heard any more on the dish network case? That also has the potential to be a big win for the anti prohibitionists. Id like to see an article on the weed blog about employers getting free reign to discriminate against marijuana users yet hire booze drinkers by the buick full.

  • VSACC

    The governments position boils down to Congress has INDISPUTABLE Legitimate interest in “promoting public health and welfare.”

    First that is incorrect.Congress was never meant to micromanage the lives of Americans, in contrast it was meant to uphold the Constitution and ensure individual liberties.

    Secondly, if incarceration is reasonable practice for promoting health why doesn’t the government start arresting obese people? When they lose weight out of jail they go.

    Lastly, my favorite, the Obama administration disagrees with its own stance. Obama does not believes Congress has indisputable interest in promoting public health and welfare when it comes to immigration, but that he does.

    Perhaps both positions are wrong and the PEOPLE actually have indisputable legitimate interest in public health and welfare policies that have to do with their own health and welfare.

    As they say:

    [Healthy] Life, Liberty [to choose ones own medicine], Pursuit of Happiness [as measured by personal welfare].

  • Daniel Palos

    There is no appeal to our Commerce Clause for the federal government. There is no longer any delegated Power to Prohibit forms of Commerce since the repeal of that historical mistake, last millennium.