Marijuana users and growers usually try to stay out of federal
courts, which strictly enforce the nationwide laws against the drug and
have rebuffed challenges to the government’s classification of pot as
one of the most dangerous narcotics.
But that could change this
week when a federal judge in Sacramento, in a criminal case against
seven men charged with growing marijuana on national forest land in
Trinity and Tehama counties, hears what she has described as “new
scientific and medical information” that raises questions about the
validity of the federal ban.
The Drug Enforcement Administration
classifies marijuana, along with such drugs as heroin, LSD and ecstasy,
in Schedule One — substances that have a high potential for abuse, have
no currently accepted medical use, and can be dangerous even under a
doctor’s supervision. The classification amounts to a nationwide
prohibition on the possession, use or cultivation of the drug. The DEA
reaffirmed marijuana’s status in 2011, and a federal appeals court in
Washington, D.C., upheld it last year.
But the hearing that
starts Monday may be the first of its kind in a criminal case since the
early 1970s, shortly after Congress put marijuana in Schedule One under
the DEA’s supervision, said Zenia Gilg, the San Francisco criminal defense lawyer who filed the current challenge.
“At
that point, not a lot was known about the medicinal benefits of
marijuana,” said Gilg, a member of the legal committee of the National Organization for the Reform of Marijuana Laws. “It’s about time somebody looked at the new evidence.”
That will be U.S. District Judge Kimberly Mueller,
who granted the hearing, scheduled for three days, over prosecutors’
objections. In an April 22 order, she said lawyers for the defendants
had presented expert declarations “showing there is new scientific and
medical information raising contested issues of fact regarding whether
the continued inclusion of marijuana as a Schedule One controlled
substance ... passes constitutional muster.”
She issued the order
in a case that, based on the evidence so far, has little to do with
medical marijuana — the defendants are charged with growing a large
tract of pot plants on forest land, and there’s been no indication that
it was for medical use. But Gilg said that’s irrelevant if they were
charged under an unconstitutional law.
As Gilg acknowledges, it
will not be an easy case to win. She and her colleagues must prove not
merely that the federal law is misguided, based on current research, but
that it is entirely irrational. An initial ruling would apply only to
the current defendants, but the impact would be broader if higher courts
weighed in.
Support for defense
The
witness list includes doctors and researchers who laud marijuana’s
medical benefits and say it is much less hazardous than tobacco, alcohol
and some everyday medications, and a former FBI analyst who says the
federal ban has been socially destructive. Defense lawyers say they also
are drawing support from an unlikely source — President Obama’s Justice
Department, which, while defending the federal ban in court, has
advised federal prosecutors not to charge people who are complying with
their state’s marijuana laws.
California, 20 other states and
Washington, D.C., allow the medical use of marijuana, and two of those
states, Colorado and Washington, have also legalized personal use.
“If marijuana is actually such a dangerous drug, the rational response by the Department of Justice
would be to increase, not decrease, prosecution in those states,” Gilg
said in court papers. She also argued that the government’s
state-by-state enforcement policy is discriminatory.
The government’s expert witness is Bertha Madras, a Harvard professor of psychobiology and a former official in the Office of National Drug Control Policy under President George W. Bush.
In a court declaration, she said marijuana “has a high potential for
abuse” and is properly classified among the most dangerous drugs.
Medical uses debated
Contrary
to popular notions, Madras said, marijuana is addictive for frequent
users, interferes with concentration and motivation, and can cause brain
damage. Marijuana smoke contains “significant amounts of toxic
chemicals,” she said. And despite “anecdotal evidence” that it helps
some patients feel better, she said, there are no valid long-term
studies that support its use as medicine — in fact, although some of the
plant’s ingredients may be beneficial, “there is no such thing as
medical marijuana.”
Nonsense, said Dr. Philip Denney, a defense expert witness and a founding member of the Society of Cannabis Clinicians.
Despite government restrictions on the supply of marijuana for
research, he said in a declaration, new studies have shown “remarkable
promise” in using marijuana to relieve pain and treat numerous
illnesses, including forms of hepatitis, gastrointestinal and sleep
disorders, and Alzheimer’s disease.
Marijuana, Denney said, is a
“nontoxic, nonlethal substance” with little potential for abuse and no
recorded cases of fatalities, in contrast with the deaths caused by
alcohol and tobacco. He said its side effects pale in comparison with
the serious illnesses that can be caused by heavy doses of pain
relievers like Tylenol and Advil and the hallucinatory effects of the
main ingredient in NyQuil and Robitussin cough syrups.
Another defense expert, James Nolan, a chief of crime analysis and research for the FBI during President Bill Clinton’s
administration, said the main harm caused by marijuana is “its status
as an illegal substance,” which has relegated much of its distribution
to criminals and cartels and ruined the lives of many of its users.
Mueller,
who will weigh the conflicting testimony, is a former Sacramento city
councilwoman and federal magistrate who was appointed to the bench by
Obama in 2010. She is the first female judge in the Eastern District,
which includes Sacramento and Fresno.
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