A decision by U.S. District Judge Kimberly J. Mueller in the federal district court for the Eastern District of California may have earthshaking consequences for the marijuana industry. The decision, expected early next year, will be the first time since the 1970s that a federal court will have considered the constitutionality of marijuana’s classification as a Schedule I drug. By itself, a ruling that the classification has no rational basis would affect only criminal prosecutions in that district in California.
The fact that she chose to hear scientific evidence about marijuana’s medical value is already powerful ammunition in the ongoing effort to reschedule marijuana. If marijuana were to come off Schedules I and II, many of the concerns that keep investors on the sideline would suddenly become moot. They would seem like arcane thoughts about buggy whips. Cannabis would be an agricultural commodity, like corn.
In 2011, officers from United State Forest Service, North State Marijuana Investigation Team, California Highway Patrol, and Trinity County Narcotics Task Force raided two illegal grow sites owned by Bryan Schweder and Brian Pickard in the Shasta-Trinity National Forest. Schweder, Pickard and 14 other suspects, mostly Mexican nationals, were arrested and charged. Some have already spent several years in prison. There is no indication that the marijuana was being grown for legal medicinal purposes.
The Legal Argument
The defense team argues that the decision to prosecute the defendants violated their equal protection rights under the Fourteenth Amendment because there is no rational basis for treating marijuana as a Schedule I substance in light of the current scientific and medical research. This is not a new argument. What is new and different this time around, though, is that the judge permitted the defense to introduce scientific evidence about marijuana’s therapeutic uses and benign recreational effects.
As a rule, administrative regulations, such as the scheduling of various drugs under the Controlled Substances Act, can be challenged only if they are shown to be completely irrational, not just unwise. It is a very difficult standard to meet. Courts do not really want to encourage bureaucratic second-guessing. Odds are that, having heard the evidence, the judge will find that the classification may be unfortunate but not completely crazy and is therefore constitutional. This may also be the best result. Otherwise, it could set up a Supreme Court case, which could end badly, given the current composition of the Supreme Court.
But the truth is that most of the battle has already been won. The judge’s evidentiary ruling may be as important to legalization efforts as the ultimate outcome of the case. It recognizes that recent scientific evidence about the efficacy of medical marijuana has legal value. This is the piece of the puzzle that has been missing in previous rescheduling campaigns.
How Rescheduling Might Go Forward
Attorney General Eric Holder has recently signaled that he would be open to taking marijuana off Schedule I, which sets the stage in a different way, and is especially important since the Drug Enforcement Agency is part of the Department of Justice. The process would proceed, as before, with a petition to the DEA to reschedule marijuana as a Schedule III, IV or V drug on the basis of a currently accepted medical use. The DEA relies on the advice of the Department of Health and Human Services to determine if there is such a use. In rendering advice, the DHHS looks at five factors:
- a known and reproducible drug chemistry,
- adequate safety studies,
- adequate and well-controlled studies demonstrating efficacy,
- acceptance of the drug by qualified experts, and
- widely available scientific evidence.
This is where things have fallen apart before. They may have a better chance of succeeding now, with both a more open attitude at the top of the department and what is effectively a legal seal of approval on the probity of existing research studies of medical marijuana.
If the DEA denies the petition, the next step would be the U.S. Court of Appeals for the District of Columbia Circuit, which would apply the same rational basis test at issue in Schweder. The D.C. Circuit would not be bound by Judge Mueller’s decision, but might find it persuasive, especially if that court finds that the current scheduling is irrational. A lot could happen along the way, so speculation is probably pointless past here.
Even if it is too early to break out the champagne, legalization advocates and the cannabis investment community should take heart that progress, inch by gritty inch, seems to be underway on several fronts.