Donald Scarinci
Marijuana for sale. Ethan Miller/Getty Images
A New Jersey appeals court recently ordered
the Division of Consumer Affairs to seriously consider whether marijuana
should still be classified as a Schedule I drug under the state’s
Controlled Dangerous Substances Act.
Citing the growing evidence of marijuana’s medical benefits, the court determined that reclassification of the drug was “ripe for determination by the director.”
The Appellate Division also rejected the
Division of Consumer Affairs’ argument that federal law barred the
agency from removing marijuana from Schedule I. “[W]e conclude that the
director erred in determining he lacked the authority to reclassify
marijuana without a change in existing federal law,” the court held.
Classification of Marijuana
The New Jersey Controlled Dangerous Substances Act imposes
restrictions on drugs based on certain schedules, which reflect their
potential for abuse and scientific evidence of their pharmacological
effect, among other factors. Since its enactment, marijuana has been
placed on the Schedule I list of controlled dangerous
substances. Pursuant to N.J.S.A. 24:21-5(a), the director of the
Division of Consumer Affairs “shall place a substance in Schedule I if
he finds that the substance: (1) has high potential for abuse; and (2)
has no accepted medical use in treatment in the United States; or lacks
accepted safety for use in treatment under medical supervision.”
The
classification of marijuana at the state level tracks the federal
Controlled Substances Act.
Marijuana is labeled a Class I substance
under the Controlled Substances Act (CSA), which is reserved for drugs
with “high potential for abuse, no accepted medical use, and no accepted
safety for use in medically supervised treatment.” Since the days
of Richard Nixon, critics have maintained that the stringent
restrictions, which also apply to drugs like heroin, are unwarranted and
unsupported by scientific evidence.
Scientific Evidence Supports Reconsideration
The New Jersey lawsuit, Kadonsky v. Lee,
is the first in the country to seek reclassification of marijuana
through the judicial process. In 2014, Steven Kadonsky, an inmate
serving a sentence for marijuana trafficking, filed a petition with the
Division of Consumer Affairs seeking to have marijuana rescheduled from
Schedule I to the less restrictive Schedule IV. In support of his
petition, Kadonsky argued that because the New Jersey Legislature
determined that marijuana had “a beneficial use … in treating or
alleviating the pain or other symptoms associated with certain
debilitating medical conditions” when it passed the New Jersey
Compassionate Use Medical Marijuana Act (CUMMA) in 2010, marijuana no
longer satisfied the requirements for inclusion in Schedule I.
During
the course of the litigation, Kadonsky has been joined by a New Jersey
teenager who suffers from epilepsy. While medicinal marijuana has
dramatically helped her condition, she can’t receive the drug during
school and may only attend half days. Her amicus brief argued that the
Schedule I classification not only prevents her from receiving a full
education, but significantly affects other patients that rely on the
drug’s therapeutic benefits.
The Division of Consumer Affairs denied
Kadonsky’s petition, citing the fact that marijuana has been listed as a
Schedule I substance since the passing of the federal CSA. The agency
director further noted that N.J.S.A. 24:21-3(c) requires that he
“similarly control the substance” unless he “objects and follows the
appropriate process to make the reasons for his objections public.”
The Appellate Division disagreed with the Division of Consumer Affairs’ flat-out rejection. In
addition to rejecting the division’s reliance on the CSA, the Appellate
Division also found little support for its position based on the Supreme Court of New Jersey’s 1986 decision in State v. Tate. According
to the court, a lot has changed since the state’s highest court ruled
that marijuana had no accepted medical value. As the Appellate Division
majority explained:
“While
there may have been ‘no accepted medical use in treatment in the United
States’ for marijuana when the CDSA became effective, any argument
suggesting that premise is still valid in the post-CUMMA era strains
credulity beyond acceptable boundaries. Medical benefits from the use of
marijuana not known in 1971, when the CDSA became effective, or in
1986, when Tate was decided, and impediments to its lawful use as a
result of its Schedule I classification, are abundant and glaringly
apparent now.”
According to the Appellate Division, the
state’s consumer affairs agency may still determine that the potential
for abuse outweighs the medical benefits. However, it must thoroughly
evaluate the issue and can’t hide behind federal law.
As the court explained, “marijuana’s
continued classification as a Schedule I substance in New Jersey, would
depend, in part, on a determination that it has a high potential for
abuse and, if so, whether that factor justifies continued inclusion in
the face of compelling evidence of accepted medical use and impediments
to its legal use which may be attributable to its classification.”
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