Judge Kimberly J. Mueller of the Federal District Court in Sacramento, California issued her oral ruling during a 15-minute court hearing today. Judge Mueller heard closing arguments in the case in early February but had postponed her decision on several occasions. Her written opinion is not yet available but is expected to be posted publicly by week’s end.
“At some point in time, a court may decide this status to be unconstitutional,” Judge Mueller said from the bench. “But this is not the court and not the time.”
Defense counsel intends to appeal the ruling.
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. Lawyers for the federal government countered 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 — further contended 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.
Paul Armentano, NORML’s deputy director who served as the principal investigator for defense counsel in this case said: “We applaud Judge Mueller for having the courage to hear this issue and provide it the careful consideration it deserves. While we are disappointed with this ruling, it changes little. We always felt this had to ultimately be decided by the Ninth Circuit and we have an unprecedented record for the court to consider.
“In the interim, it is our hope that lawmakers move expeditiously to change public policy. Presently, bipartisan legislation is before the House and Senate to recognize cannabis’ therapeutic utility and to reschedule it accordingly and we encourage members of Congress to move forward expeditiously to enact this measure.”
In a brief filed with the court by the federal government, it contended: “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 added: “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.”
Said Armentano, “The continued Schedule I classification of cannabis, in 2015, in self-evidently ridiculous. But unfortunately, the law may be ridiculous and still pass constitutional muster.”
He added, “The judge in this case missed a golden opportunity to demand that federal law comport with available science, public opinion, and common sense.”
Legal briefs in the case, United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, are available online here.
Fifty-three percent of Americans say that the “use of marijuana should be legal,” according to nationwide survey data published today by the Pew Research Center.
“Support for marijuana legalization is rapidly outpacing opposition,” pollsters opined, acknowledging that Americans’ support for legalizing marijuana has risen some 10 percentage points over the past five years. Forty-four percent of respondents oppose legalization in the 2015 poll and three percent are undecided.
The poll is the latest in a series of national surveys showing majority support for legalizing and regulating marijuana.
Millennials (68 percent) are most likely to support legalization while most of those age 70 or older do not (29 percent). Most Republicans (39 percent) and Hispanics (40 percent) also remain opposed to legalizing marijuana.
Nearly two-thirds of respondents (62 percent) oppose the use of marijuana in public. By contrast, most respondents (57 percent) said that they would not be bothered if a “business selling marijuana” opened in their neighborhood.
While we now enjoy the support of a majority of the American public to end marijuana prohibition, 64 percent of those same people nonetheless still have an overall negative impression of marijuana smokers. All to often they see us as slackers who fail to live up to our full potential, and whose primary interest in life is getting stoned.
While much of that disconnect is likely the result of decades of “reefer madness” propaganda, some of it also results from careless conduct on the part of some marijuana smokers that reinforces those negative stereotypes. We can’t change the past, but we do have the ability to demonstrate by our conduct that marijuana smokers also have full, rich lives filled with family and friends, and influenced by our intellectual and professional pursuits. We are about more than just getting high.
In fact, those of us who smoke marijuana are otherwise indistinguishable from other Americans. We come in all shapes and sizes, with a full range of political beliefs and lifestyles and professional goals. For the vast majority of smokers, our use of marijuana does not define our lives; it is but one factor, including family, work, education, sports, literature, music and faith, that taken together, define who we are as individuals.
Of course, those of us who smoke enjoy the benefits of marijuana, from its relaxing qualities to its ability to allow one to become more creative, and expansive, in our thinking. I do believe that marijuana smoking plays a very positive role in my life and in my work, and I am sure many other smokers feel the same.
Everyone needs some private time, and getting “high” — like sex — is not a dirty word. There are times when we can lay aside our responsibility for a time, and enjoy the freedom of just getting high with friends. But that does not suggest that marijuana smoking should become the center of one’s life, or that one should be stoned all waking hours. Most jobs and educational pursuits require a clear mind and a steady focus that are not possible if one is experiencing the short-term memory loss that is an integral part of the marijuana “high.”
And a healthy family life requires shared experiences and interactions that depend on a degree of personal communication that is frequently interrupted if one of the parties is stoned. And, frankly, like most other activities in life, getting “high” is more pleasurable when experienced in moderation.
Principles of Responsible Marijuana Use
Here are a few common sense suggestions for enjoying marijuana in a responsible manner, which will, over time, help persuade the non-smokers that those of us who do smoke are nonetheless good, productive citizens. Many of these are based on The Principles of Responsible Cannabis Use, adopted by the NORML board of directors back in 1996, and found on the NORML website.
1. Be sensitive to the set and setting before lighting-up. A responsible marijuana consumer should be vigilant to the conditions – time, place, mood, etc. – and should not hesitate to say “no” when those conditions are not conductive to a safe, pleasant and/or productive experience. And we must always respect the rights of others.
The responsible marijuana smoker does not violate the rights of others, observes accepted standards of courtesy and public propriety, and respects the preferences of those who wish to avoid marijuana entirely. Regardless of the legal status of marijuana, responsible users should adhere to emerging tobacco smoking protocols in public and private places. It is important politically that non-smokers do not feel as if those of us who smoke are forcing our personal preferences on them.
2. No driving while impaired with marijuana. A responsible marijuana consumer should not operate a motor vehicle or use other dangerous machinery while impaired by marijuana or other substances (including alcohol and some prescription medications).
Public safety requires that impaired drivers be kept off the roads, and that objective measures of impairment be developed to detect marijuana impairment; not simply testing for the presence of THC.
3. Resist abuse. Most marijuana use is essentially harmless; some is not. The use of marijuana, to the extent it impairs health, personal development or achievement, is abuse and should be resisted.
For example, the concept of “wake and bake” needs to disappear from our lexicon. It is a variation on the “stupid stoner” stereotype of a smoker who sits home on his couch all day and stays stoned from morning until night. That image feeds the prejudice that exists among non-smokers towards those of us who smoke.
“Wake and bake” might work on an occasional camping trip, or a day spent walking in the woods, but it should not be a regular part of one’s life.
4. Be careful with edibles and concentrates. When consumed as an edible, the THC in marijuana requires up to 90-minutes, or even longer, to take effect, and it is therefore difficult to titrate the dosage. 10 milligrams is generally considered a single dose for an experienced user, and perhaps 5 milligrams for a novice user.
One who consumers too much of an edible will likely have a frightening, unpleasant experience, similar to a bad acid trip, which sometimes ends up in an emergency room. Those incidents are not life threatening or fatal, but they do reinforce negative views of marijuana smoking by non-smokers, and complicate our task of moving legalizing forward.
And the same warning applies to concentrates. Novice users especially need to go slowly when using concentrates, to avoid an unpleasant overdose; and even experienced smokers frequently are surprised by the strength of concentrates. Just as alcohol drinkers learn to use far less if they are drinking hard liquor than if they are drinking beer, those who use edibles and concentrates must acknowledge the distinction from regular marijuana and adjust their intake.
5. Moderation in all things. Just as alcohol drinkers learn that moderation is necessary to insure a pleasant experience, and to avoid an unpleasant one, so too with marijuana smoking. Getting as high as possible should not be the goal. The purpose of marijuana smoking should be to reach a nice, comfortable, pleasant high that permits enjoyable social interaction with others, and enhances the experience of activities such as eating, listening to music, walking in the woods, having sex, etc.
In fact, sometimes marijuana smokers prefer a mild level of intoxication, which has resulted in the arrival of many low-THC strains and edibles in states in which it is legal.
If those of us who smoke marijuana can generally follow these basic guidelines, we will begin to overcome the negative impression of recreational marijuana smokers that persist among nearly two out of three non-smokers, which in turn will permit us to make the remaining cultural and legal changes required to end unfair discrimination against responsible marijuana smokers.
A new and well done public service announcement in favor of ending cannabis prohibition was just released by Green Flower Media. Producers hope that this advertisement is the first in a series.
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.