Challengers of Marijuana Scheduling Unlikely to See Lift-Off

Michael Hiller holds a Feb. 14 press conference outside the Manhattan federal court where a judge heard his challenge to the Schedule I drug classification of marijuana. Members of co-plaintiff Cannabis Cultural Association stand to the attorney’s right. (JOSH RUSSELL, Courthouse News Service)
pot challenge

MANHATTAN (CN) – Forecasting defeat for a group of medical marijuana users, a federal judge said Wednesday that their strong arguments simply do not give him authority to alter Schedule I drug classifications.

“I think the right thing to do is defer to the agency,” U.S. District Judge Alvin Hellerstein said, though he ultimately ended the hearing without making a decision.

Though it may ultimately prevail, the government drew skepticism from Hellerstein with its argument in court filings that it “uniformly rejects the notion that there is a fundamental right to use marijuana, including for medical purposes.

Schedule I drugs by definition cannot be considered to have currently accepted medical use, but Hellerstein noted that the challengers are “living proof of the medical-appropriateness of marijuana.”

To the government’s point, however, Hellerstein conceded that “a District Court is not the appropriate forum” to weigh scheduling criteria.

Michael Hiller, an attorney for the marijuana users, focused meanwhile on the futility of pursuing administrative relief.

“I represent people who need cannabis to live,” Hiller said.

Among these clients are former NFL player Marvin Washington, Iraq war veteran Jose Belen, and two children who use marijuana to treat epilepsy and the severe neurological disorder called Leigh’s syndrome.

Hiller called petitioning process to change the drug’s scheduling so drawn out that his clients may die in the process.

Justice Department attorney Samuel Dollinger meanwhile argued that the doctrine of administrative exhaustion requires dismissal of the case in any case.

Hellerstein, who his 85, has been on the bench since his appointment in 1998 by President Bill Clinton.

He noted that, even if marijuana were rescheduled to Schedule II, it would still be in the same category as the prescription opiates that have cause a nationwide epidemic.

“The scourge that’s going on now would be Schedule II,” Hellerstein said.

Schedule I criteria also list a high potential for abuse and say the drug cannot be used or tested safely, even under strict medical supervision.

It was in the Nixon administration that Attorney General John Mitchell placed marijuana the Schedule I category in 1972 under the 1970 Controlled Substances Act.

When the plaintiffs filed suit in July 2017, they connected the criminalization of marijuana in America to an “illegal racial and ethnic animus, … implemented and enforced at the federal level by those who have chosen to disregard its scientific properties and benefits, and have been motivated by hatred and outright bigotry.”

Hellerstein voiced objection at Wednesday’s hearing to probing the “inner machinations” of the Nixon administration, but attorney Hiller still managed to squeeze in that the history of marijuana’s federal scheduling was part of Nixon and Mitchell’s “predatory effort to break up protesters and infiltrate opposition groups.”

Hiller’s complaint remarked that the federal government has used the Controlled Substance Act to “harass, intimidate and incarcerate African Americans in disproportionate numbers over the years, ruining the lives of generations of black men and women and other persons of color.”

Marijuana proponents filled Hellerstein’s courtroom to capacity. At least four were using wheelchairs, and one was accompanied by a service dog wearing a vest with military veteran insignia.

The arrival of silver-haired attorney and marijuana activist Joseph Bondy elicited applause from the room of supporters. Bondy then shook hands with nearly everyone in attendance.

Directors from the New York-based Cannabis Cultural Association, a 501(c)3 nonprofit group, also appeared in court as co-plaintiffs.

At a press conference outside the courthouse, supporters were optimistic about Hellerstein’s acknowledgement of marijuana’s medical uses.

Attorney General Jeff Sessions announced in January that the Trump administration would reverse an Obama-era policy that gave states room to legalize marijuana.

The change will allow federal prosecutors to enforce marijuana laws in their districts as they see fit.

Sessions says the shift is necessary because Congress has made it clear through other laws that “marijuana is a dangerous drug and that marijuana activity is a serious crime.”

In April 2016, Sessions reportedly declared that he believed “good people don’t smoke marijuana.”

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