Voters in Wichita Kansas approved a municipal measure yesterday that seeks to reduce first-time marijuana possession penalties within the city.
Fifty four percent of local voters approved the initiative, which reduces penalties for first-time marijuana possession offenses (up to one ounce) to a civil infraction punishable by a $50.00 fine. Under state law, marijuana possession is classified as a criminal misdemeanor, punishable by up to one year in jail and a $2,500 fine.
Despite majority support for the measure, state Attorney General Derek Schmidt has called the language unlawful and has threatened to sue the city if the provision goes into effect. The city is seeking a declaratory judgment from the courts in regard to whether they can move forward with enacting the new, voter-approved law.
The new law is set to take effect Thursday, February 26, at 12:01am. In a press release issued Tuesday, District officials — including Mayor Muriel Bowser and Police Chief Cathy Lanier — reaffirmed their intent to recognize the will of District voters, 70 percent of whom voted in favor of the municipal measure (I-71).
“In November, residents of the District of Columbia voted to legalize small amounts of marijuana by adults for personal, in-home use in the District,” said Mayor Bowser. “We will uphold the letter and the spirit of the initiative that was passed last year, and we will establish the Initiative 71 Task Force to coordinate our enforcement, awareness and engagement efforts and address policy questions as they arise.”
Initiative 71 permits adults to possess up to two ounces of marijuana and to cultivate up to six marijuana plants (no more than three mature at any one time) in one’s primary residence without facing any criminal or civil penalty. Not-for-profit transactions involving small amounts of the substance are also permitted; however, for-profit sales are prohibited as is the retail production or distribution of the plant.
The consumption of cannabis in public or on federal property also remains prohibited.
District officials contend that they possess the legal authority to depenalize minor marijuana offenses despite the passage of a federal spending provision in December prohibiting the District from spending any tax dollars to implement the new law. They argue that the municipal measure took effect upon passage in November and that Congress failed to take any explicit action to overturn the law during its requisite 30-day review period. (This Congressional review period is mandated law before any new District legislation may be imposed.)
District officials’ stance is not without some vocal critics. Earlier this week, two Republican members of Congress sent a letter to DC’s Mayor warning that Congress may take action if I-71 is enforced.
“If you decide to move forward … with the legalization of marijuana in the District, you will be doing so in knowing and willful violation of the law,” reads the letter signed by Rep. Jason Chaffetz (R-UT) and Rep. Mark Meadows (R-NC), chairman of the subcommittee that handles DC affairs.
In an interview with The Washington Post, Rep. Chaffetz threatened Mayor Bowser and city officials, stating, “[If District officials are] under any illusion that this would be legal, they are wrong. And there are very severe consequences for violating this provision. You can go to prison for this. We’re not playing a little game here.”
To date, neither spokespersons for the Mayor’s office and/or the DC City Council have responded directly to the Congressmen nor have they indicated that they intend to reconsider their decision to implement I-71 as voters intended.
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.
Newly appointed US Surgeon General Vivek Murthy believes that cannabis possesses therapeutic utility — an acknowledgment that contradicts the plant’s present placement as a Schedule I controlled substance under federal law.
Speaking to CBS News, Murthy said: “We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful.” He added, “I think we have to use that data to drive policy making and I’m very interested to see where that data takes us.”
Dr. Murthy was confirmed as US Surgeon General late last year.
His statements appear to be inconsistent with the Schedule I classification of marijuana under federal law — a scheduling that defines the plant and its organic compounds as possessing “no currently accepted medical use …. in the United States” and lacking “accepted safety … under medical supervision.”
Next week in Sacramento, a federal judge will hear final arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification. 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.
Briefs in this ongoing federal case are available online here.
[Update: Perhaps predictably, the Surgeon General has dialed back his initial comments to CBS News. Late last night, The Department of Health and Human Services issued a statement attributed to Murthy stating: “Marijuana policy — and all public health policies — should be driven by science. I believe that marijuana should be subjected to the same, rigorous clinical trials and scientific scrutiny that the Food and Drug Administration (FDA) applies to all new medications. The Federal Government has and continues to fund research on possible health benefits of marijuana and its components. While clinical trials for certain components of marijuana appear promising for some medical conditions, neither the FDA nor the Institute of Medicine have found smoked marijuana to meet the standards for safe and effective medicine for any condition to date.”
Interesting that Dr. Murthy cites the IOM which hasn’t formally commented on the issue of medical marijuana since releasing its report some 15 years ago, long before the results of FDA-approved clinical trials like this had been completed. Also notable that he leans on the FDA for guidance when the agency largely does not review the safety and efficacy of botanical products.]
District of Columbia city officials this week moved forward with their intentions to implement a voter-approved municipal initiative depenalizing marijuana possession and cultivation offenses.
On Tuesday, city officials confirmed that Initiative 71 was transmitted to Congress for review. Under federal law, all District laws are subject to a 30-day review process by Congress, during which time members may take action to halt the law’s implementation.
Speaking to Roll Call this week, House Oversight and Government Reform Chairman Jason Chaffetz (R-Utah) said that language previously adopted by Congress in a December 2014 spending bill already prohibits DC officials from implementing I-71 and, thus, no further action by Congress is necessary. However, several District officials – including DC Delegate Eleanor Holmes Norton and DC Council Chairman Phil Mendelson – said that the federal provision in question in no way blocks city officials from enacting the new law.
“The District’s examination agrees with our analysis that the initiative was enacted when voters approved it and will take effect at the end of the 30-day congressional review period,” Del. Norton said in a statement.
Chairman Mendelson agreed, saying, “I happen to believe that the initiative was enacted so I think there’s no question that after the 30-day review it will be law.”
The District of Columbia Attorney General’s office has not yet commented in regard to how the District will respond if Congress does not address the initiative during the review process, Roll Call reported.
In November, 70 percent of District voters approved I-71, which removes criminal and civil penalties regarding the adult possession of up to two ounces of cannabis and/or the cultivation of up to six plants.
Separate DC municipal legislation – ‘The Marijuana Legalization and regulation Act’ – which seeks to regulate commercial cannabis production and retail sales, is also pending before the Council. If enacted, this legislation would also go before lawmakers for Congressional review and likely would force a federal challenge.