Federal Judge Hears Closing Arguments In Constitutional Challenge To Cannabis’ Schedule I Status

  • by Paul Armentano, NORML Deputy Director February 12, 2015

    Federal Judge Hears Closing Arguments In Constitutional Challenge To Cannabis’ Schedule I StatusYesterday 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.

    79 responses to “Federal Judge Hears Closing Arguments In Constitutional Challenge To Cannabis’ Schedule I Status”

    1. rick maccall says:

      30 LONG DAYS!! no faith left

    2. Chris in WI says:

      Amazing, legality and technicalities are more important then truth is their argument basically.

    3. Anonymous says:

      If “it is not for the Courts to decide the issue and the statute must be upheld,” then how did prohibition of alcohol and every other stupid law/amendment get repealed?

    4. Julian says:

      No matter what the Judge’s verdict, I’ve said it before and I ‘ll say it again; Our NORML team did great and historic work here! Thank you Attorney Zenia Gilg for calling the government witnesses in this trial out for the impostors of Democracy that they are! And thank you Paul Armentano for all of the vital research you contributed to this case. You made MY donation and THEN some.
      I’d like to see the U.N. and Congress react to this case. Especially the highlight when one of the government’s witnesses went on a Pharma-rant trying to say marinol is better than herbal marijuana and apparently didn’t even realize he admitted that marijuana was medicine while under oath.
      And the denoumovement of the whole drama? “Congress doesn’t have to be right.” Yeah, I think my four year old tried that defense with me and he still got an @$$ woopin.

      [Paul Armentano responds: Thank you for the comment Julian. I know that you have been closely following this case from almost day one.]

    5. In the last 10000 years cannabis has failed to cause a single death. Unlike dangerous substances such as salt or sugar. It is stupid laws such as prohibition that cause the rational to lose respect for authority.

    6. S says:

      So who is the judge and who exactly funded him?
      Because if ANY of his donors are pharmaceutical related, you can bet your ass that cannabis will continue to be a Schedule One

      [Editor’s note: Federal judges are appointed, they don’t run for office.]

    7. Gweedo says:

      It seems to me that the Judge herself may side with the defense, but there is no legal basis for her to rule for them. She will likely rule for the prosecution because they have the legal advantage even though she disagrees with them.

    8. Galileo Galilei says:

      “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’.”

      This is nonsense.

      We should expect Congress to base its policies based on scientific truth and to change its policies as we learn more. Anything else throws money and lives away needlessly.

    9. Hemp McGee says:

      I agree. The judge should do something. Like do a load of laundry, wash dishes, eat a snack, workout, watch some tv, take a crap, or troll a comment section on a website. It makes very little sense, what I say. In contrast, ending prohibition makes more sense than Mary Poppins. Tell me I’m wrong.

      Having your name associated in any way with the efforts to persecute those that choose to consume cannabis is a shameful embarrassment, and ignorance is not bliss. What a legacy to leave behind as one fades into the history books as a herded sheep of a person, choosing to remain uneducated or instead advocating a crime against all people with a self righteous attitude. Get rid of mint chocolate chip ice cream, I say. Let it ring out for all to hear. Non psilocybin mushrooms must be outlawed as well.

      Thank you for your time. Admittedly, not my best work. And I shan’t pay you for the seconds you just lost, sorry.