25 Years Ago: DEA’s Own Administrative Law Judge Ruled Cannabis Should Be Reclassified Under Federal LawSeptember 5, 2013
Friday, September 6, 2013 marks the 25-year anniversary of an administrative ruling which determined that cannabis possesses accepted medical utility and ought to be reclassified accordingly under federal law.
The ruling, issued in 1988 by US Drug Enforcement Administration (DEA) Chief Administrative Law Judge Francis Young “In the Matter of Marijuana Rescheduling,” determined: “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.”
Young continued: “It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”
Judge Young concluded: “The administrative law judge recommends that the Administrator conclude that the marijuana plant considered as a whole has a currently accepted medical use in treatment in the United States, that there is no lack of accepted safety for use of it under medical supervision and that it may lawfully be transferred from Schedule I to Schedule II [of the federal Controlled Substances Act].”
Judge Young’s ruling was in response to an administrative petition filed in 1972 by NORML which sought to reschedule cannabis under federal law. Federal authorities initially refused to accept the petition until mandated to do so by the US Court of Appeals in 1974, and then refused to properly process it until again ordered by the Court in 1982. In 1986, 14-years after NORML filed its initial petition, the DEA finally held public hearings on the issue before Judge Young, who rendered his decision two years later.
However, then-DEA Administrator John Lawn ultimately rejected Young’s determination, and in 1994, the Court of Appeals allowed Lawn’s reversal to stand – maintaining marijuana’s present classification as a Schedule I prohibited substance with “no accepted medical use,” and a “lack of accepted safety … under medical supervision.”
In July 2011, the DEA rejected a separate marijuana rescheduling petition, initially filed in 2002. This past January, a three-judge panel for the US Court of Appeals for the District of Columbia affirmed the DEA’s decision, ruling that insufficient clinical studies exist to warrant a judicial review of cannabis’ federally prohibited status. Petitioners have appealed the ruling to the US Supreme Court, which may or may not elect to review the matter.
In what can only be described as a horrible tragedy for college student Daniel Chong–as well as for the American taxpayer–the Department of Justice’s Drug Enforcement Administration has agreed to pay $4.1 million dollars to Mr. Chong for falsely imprisoning him after an April 20, 2012 party, and worse, literally forgetting about him in a holding cell for five days where Mr. Chong drank his own urine to survive, and cut himself to leave a dying message to his mother.
To date no DEA field agents or local managers have been held responsible for this gross error (ironically, only the taxpayer is left being the responsible party in this legal nightmare).
This kind of abuseful and money-wasting government nitwittery is another prime example of why cannabis prohibition must end in America post haste.
San Diego Union Tribune article about the settlement, and previous news coverage, is below:
By Jeff McDonald1:08 a.m.July 30, 2013
Daniel Chong, the self-confessed pot smoker who was caught up in a drug sweep last year and nearly died after federal agents inadvertently abandoned him in a holding cell for five days without food or water, is now a millionaire.
Attorney Eugene Iredale announced Tuesday he reached a $4.1 million settlement with the U.S. Department of Justice, without even filing a lawsuit.
The harrowing experience for Chong, 25, an engineering student, began on a Friday night in 2012, when he admittedly went to some friends’ house in University City to celebrate April 20, a special date for marijuana users.
Chong didn’t know it at the time, but the home had been under surveillance by a federal narcotics task force.
Drug agents executed a search warrant early in the morning of April 21, Among other things, they found 18,000 ecstasy pills, marijuana and several weapons in the residence, according to court papers.
The agents also found Chong sleeping on a couch in the front room and transported him and six others to the San Diego field office of the U.S. Drug Enforcement Administration for follow-up interviews.
Chong said he answered all of the agents’ questions and they agreed to send him home without criminal charges.
But instead he was returned to a temporary holding cell, where he spent the next four days without food or water. He has said he became delirious, drank his own urine, ate the broken shards of his glasses and used the glass to cut the message “sorry mom” in his own forearm.
He said he kicked the door and screamed for help but agents never came to his assistance. DEA agents admitted later they “accidentally” left Chong in the cell and took the unusual step of apologizing publicly to the UCSD student.
DEA officials declined to comment about the case Monday.
Findings of an investigation by the Office of the Inspector General’s Office of the U.S. Department of Justice have not been released.
A Michigan traffic safety law that prohibits the operation of a motor vehicle by persons who possess any presence of THC in their blood, regardless of whether or not they are behaviorally impaired by the substance, may not be strictly applied to state-qualified medical cannabis patients. So decided the Michigan Supreme Court on Tuesday in the case People v Koon.
In a unanimous opinion, the Court determined that legal protections extended to state-qualified patients under the Michigan Medical Marihuana Act, enacted by voters in 2008, supersede the state’s zero tolerance, internal possession law. As a result, the Court determined that state prosecutors must establish that authorized patients charged under the statute are actually impaired by their cannabis use in order to gain a DUI criminal conviction.
According to the syllabus of the Opinion:
“The MMMA [Michigan Medical Marihuana Act] does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, the MMMA’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with MCL 257.625(8) [the state's zero tolerance per se DUI law], which prohibits a person from driving with any amount of marijuana in her or system.”
The state’s zero tolerance per se drug law remains applicable to non-patients. Under such laws, motorists are guilty per se (in fact) of a criminal traffic safety violation if they engage in the act of driving while detectable levels of certain controlled substances or, in some cases, their inert metabolites (byproducts) are present in the defendants’ blood or urine. Proof of actual impairment is not a requirement for a conviction under the law.
To date, ten states — Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin — have enacted legislation imposing zero tolerance per se thresholds for the presence of cannabinoids and/or their metabolites. (State-authorized medical cannabis patients in Arizona and Rhode Island are exempt from prosecution under these per se statutes unless the state can provide additional evidence of psychomotor impairment.)
Five additional states impose non-zero-tolerant per se thresholds for cannabinoids in blood: Montana (5ng/ml — law takes effect on October 1, 2013), Pennsylvania (1ng/ml), Ohio (2ng/ml), Nevada (2ng/ml) and Washington (5ng/ml). Most recently, Colorado lawmakers approved legislation stating that the presence of THC/blood levels above 5ng/ml “gives rise to permissible inference that the defendant was under the influence.” State-qualified patients in Colorado, Montana, and Nevada are not provided legal exemptions from these statutes, although legislation is presently pending in Nevada to do so.
Such caution is similarly expressed by the United States National Highway Transportation and Safety Administration, which acknowledges: “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”
A 2013 review of per se drugged driving laws and their impact on road safety found “no evidence that per se drugged driving laws reduce traffic fatalities.”
Longtime Florida activist Cathy Jordan, a 63-year-old woman who consumes cannabis to mitigate symptoms of amyotrophic lateral sclerosis (ALS aka Lou Gehrig’s disease), a debilitating condition that she has lived with since 1986, today filed a suit against Sheriff Brad Steube of Manatee County, FL.
Ms. Jordan alleges wrongful conduct on the part of the sheriff’s department when, on February 15, 2013, they raided her home and confiscated 23 medical cannabis plants, which were being cultivated for her by Cathy’s husband Robert Jordan. The Jordans were both cooperative when the sheriff’s department arrived at their home, and they acknowledged they were growing medical marijuana for Cathy’s medical use. The police raid of the Jordan’s home came just days after lawmakers introduced legislation, the Cathy Jordan Medical Cannabis Act, which sought to authorize the physician-supervised use of cannabis for those diagnosed with serious debilitating conditions. (Florida lawmakers failed to hold hearings or vote on the measure.)
After the Manatee County State Attorney’s office reviewed the facts of the case, they issued a memorandum on April 2, 2013 declining to prosecute either Cathy or her husband. The Manatee County State’s Attorney’s office found that they could not likely overcome a medical marijuana necessity defense, which would be raised by the defendant should a prosecution be initiated. However, the sheriff’s department has refused to return any of the cannabis that they confiscated from Ms. Jordan during the February 15 raid.
With this lawsuit, the plaintiffs seek a declaratory judgment finding that they have a legal right to cultivate and possess medical marijuana under Florida law; an injunction barring the sheriff’s department from making further seizures of medical marijuana from Cathy and Robert Jordan; and an injunction barring the initiation of criminal charges against either of the plaintiffs for their continued cultivation and possession of medical marijuana.
The lawsuit has been filed by Norm Kent of Fort Lauderdale, Chair of the NORML Board of Directors. NORML intends to file a friend of the court brief in the case once the defendants are served.
Kent stated: “This suit embodies NORML’S commitment to patients who have a medical need for marijuana, while simultaneously showing how the responsible use of cannabis by adults should not be restricted by law enforcement authorities. We intend to prevail in this suit so that seriously ill patients like Cathy no longer have to fear arrest or state interference for simply using their medicine.”
Added NORML Legal Counsel Keith Stroup: “Cathy Jordan is a courageous woman who has been fighting for many years to legalize the medical use of marijuana for herself and other seriously ill patients. We are proud to stand with Cathy and Robert Jordan to challenge he senseless arrest of patients who use marijuana medically.”
Florida is not among the 18 US states that presently exempt qualified patients from arrest for engaging in physician-authorized cannabis therapy.
The California Supreme Court ruled today that municipalities possess the legal authority to prohibit the establishment of medical cannabis dispensaries.
The unanimous ruling upheld a 4th District Court of Appeals opinion (City of Riverside v. Inland Empire Patients’ Health and Wellness Center, Inc.) which held that local zoning measures banning the establishment of brick-and-mortar facilities that engage in the distribution of cannabis to state-authorized persons are not preempted by state law. Other lower courts had ruled against such local bans, arguing that cities can’t use zoning laws to bar activity legal under state law.
It is estimated that some 200 California cities presently impose moratoriums on medicinal cannabis facilities. At least 50 municipalities have enacted local regulations licensing dispensaries.
Opined the Court:
“We have consistently maintained that the CUA (the California Compassionate Use Act aka Proposition 215) and the MMP (the Medical Marijuana program Act) are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”
Although language included in Proposition 215 explicitly called for the state government “to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana,” to date, lawmakers have failed to enact any specific statewide regulations regarding the retail production and distribution of cannabis to those patients authorized to consume it.
Commenting on the ruling, California NORML Coordinator Dale Gieringer said, “The court essentially affirmed the status quo. Local governments may choose to allow or limit dispensaries as they please. The unfortunate result of this decision is to leave many needy patients without legal access to medical marijuana in their communities, thereby promoting illegal black market suppliers. It is time for the state and federal governments to step up to the plate and fulfill the mandate of Prop 215 to implement a system of ‘safe and affordable’ access for all patients in medical need.”
Legislation is presently pending in both the California Assembly (AB 473) and Senate (SB 439) to impose statewide regulations governing the dispensing of marijuana produced for medical purposes.
Full text of the California Supreme Court’s opinion is available online here.