Pubdate: Mon, 12 Jan 2015
Source: Los Angeles Times (CA)
Copyright: 2015 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Maura Dolan

JUDGE WILL WEIGH POT'S STATUS

For First Time in Years, Federal Jurist Will Rule on 
Constitutionality of Classifying Marijuana As a Dangerous Drug.

SAN FRANCISCO - In a rare examination of federal marijuana law, a 
U.S. judge in Northern California has decided to rule on the 
constitutionality of a 1970 act that classifies marijuana as a 
dangerous drug akin to LSD and heroin.

U.S. District Judge Kimberly J. Mueller took the extraordinary step 
of holding a five-day hearing on the question late last year, with 
final arguments scheduled for next month. Her ruling, based on 
testimony and thousands of pages of briefs, exhibits and 
declarations, is expected later this year.

Lawyers say the case out of Sacramento marks the first time in 
decades that a judge has agreed to hold a fact-finding hearing on the 
classification of marijuana as a Schedule 1 drug under the 1970 
Controlled Substances Act. Mueller's decision came in response to a 
pretrial defense motion in a prosecution brought by the federal 
government against alleged marijuana growers.

Attorneys for the defendants have argued that the federal marijuana 
law violates the Constitution's guarantee of equal protection under 
the law and a doctrine that gives states equal sovereignty. In 
addition to maintaining that marijuana is safer than many 
non-regulated substances, the defense contends the federal government 
enforces marijuana law unevenly, allowing distribution of cannabis in 
states where it is legal and regulated by state law and cracking down 
elsewhere.

Prosecutors, who unsuccessfully opposed the factfinding hearing, have 
countered that Congress legally placed marijuana in Schedule 1, a 
classification used for drugs that have no medicinal purpose, are 
unsafe even under medical supervision and contain a high potential 
for abuse. In addition to marijuana, heroin and LSD, other Schedule 1 
drugs include Ecstasy and Mescaline. Because of marijuana's Schedule 
1 status, federal restrictions make it difficult for researchers to 
obtain legal cannabis for study.

Zenia K. Gilg, a lawyer for the growers, said scientific 
understanding and public acceptance of marijuana have grown 
substantially since courts last examined the federal classification. 
She cited the November election, when voters in Alaska and Oregon 
decided to join Colorado and Washington in making cannabis legal for 
recreational use. Most states already provide some legal protection 
for its use as medicine.

"It just shows that this country has recognized that marijuana is 
less harmful than, I would say, alcohol, and the law prohibiting it 
is absurd, particularly as it related to being up there with heroin 
and LSD," said Gilg, a member of the National Organization for the 
Reform of Marijuana Laws.

She and other lawyers also have pointed to a provision in a spending 
bill signed by President Obama in December that bars the Department 
of Justice from funding actions that prevent states from enforcing 
their own laws on medicinal marijuana. Lawyers for the growers 
questioned in court documents how Congress could justify a law that 
says marijuana has no medicinal value while demanding that its 
distribution be free of federal interference.

But legal analysts said the court challenge remains a long shot. 
Efforts to remove marijuana from Schedule 1 have consistently failed. 
A ruling against federal marijuana law would apply only to the 
defendants in the case and almost certainly would be appealed. If the 
U.S. 9th Circuit Court of Appeals determined the law was 
unconstitutional, all the Western states would be affected.

Prosecutors said in a brief filed Wednesday that the evidence 
presented in the hearing at most "established that there is some 
dispute among doctors as to whether marijuana is medicine."

Mueller, a Clinton appointee, has given few indications of how she 
might rule. Lawyers said the fact that she agreed to hold a 
fact-finding hearing was itself a victory for marijuana activists.

Despite the possible consequences and rarity of such a hearing, the 
challenge has received little public attention. A lawyer who writes a 
blog for the federal court's Eastern District of California posted 
links to daily coverage of the testimony by theleafonline.com, a 
digital newspaper for "the cannabis community." Reports by the 
pro-marijuana website portrayed the prosecution as having faltered.

Alex Kreit, a Thomas Jefferson School of Law professor who 
specializes in drug issues, said a ruling overturning the federal 
classification of marijuana would be a "surprise at the least."

"But the fact that there was a hearing tells me there is some chance 
of this succeeding," Kreit said. "It is just exceedingly unlikely 
that a federal judge would set aside several days for a hearing on a 
question they thought was open and shut."

Santa Clara University Law Professor Gerald Uelmen, who has defended 
medical marijuana defendants, also expressed surprise that a judge 
agreed to hold an evidentiary hearing on the question. He said courts 
have routinely ruled against such challenges.

Marijuana activists noted that federal judges, appointed for life, 
often take bold stands. They point to a decision by an Orange County 
federal judge last summer declaring California's death penalty system 
unconstitutional. The jurist's ruling is now on appeal. A federal 
district judge's ruling also led to the demise of California's ban on 
same-sex marriage. Even if the defendants in Sacramento lose, a 
ruling that was critical of the government's classification of 
marijuana could become ammunition for future battles.

During the October hearing, witnesses for the defense testified that 
marijuana has many medical benefits and less potential for harm than 
alcohol, tobacco and many prescription drugs. Declarations by defense 
witnesses said anti-marijuana laws were spurred by racism and that 
marijuana law continues to be enforced disproportionately against 
African Americans.

An expert for the prosecution testified that marijuana use as a 
teenager has been linked to cognitive changes and that cannabis is 
associated with psychotic disorders.

In written arguments summarizing the hearing, the defense said the 
"critical inquiry" for the court was whether marijuana has any 
medical benefits.

"The evidence is overwhelming and irrefutable, cannabis has 
remarkable medicinal qualities which have been known and applied 
throughout history," Gilg and co-counsel Heather L. Burke wrote for 
the defendants.

The prosecution, citing 40 years of court rulings, countered that the 
law must be upheld as long as it has some justification. The only 
question before the court is whether the Controlled Substances Act 
was a rational means of addressing a legitimate government interest, 
the prosecution said.

"In 2013 alone, more than 29,000 people checked themselves in for 
marijuana substance abuse treatment just in California, and more than 
half of them were teenagers," Assistant U.S. Atty. Gregory T. 
Broderick said in the brief filed Wednesday.

"Given the state of the science, it is clear that treating marijuana 
as a controlled substance is rationally related to legitimate public 
health objectives."
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MAP posted-by: Jay Bergstrom