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Wednesday, July 24, 2024 | Back issues
Courthouse News Service Courthouse News Service

Judge Won’t Take Pot off Schedule 1 List

SACRAMENTO (CN) - A federal judge Wednesday declined to remove marijuana from the list of the most dangerous drugs after a five-day hearing in a criminal case.

U.S. District Judge Kimberly Mueller denied a motion to dismiss an indictment involving a marijuana growing operation on the basis that the federal classification of marijuana as a Schedule 1 controlled substance is unconstitutional.

Other drugs classified as Schedule 1 include heroin, LSD and ecstasy. Such drugs are considered to have high potential for abuse, no accepted medical treatment in the country, and no accepted safety level for use under medical supervision.

Mueller held a five-day evidentiary hearing in October and November.

The government stressed that courts have a limited role in reviewing acts of Congress, and that the Controlled Substances Act provides a separate administrative process to make the type of scheduling challenges raised by the defendants.

While noting that much has changed since Congress passed the Controlled Substances Act in 1970, Mueller ruled that the scheduling issue is up to Congress.

"We are pleased with the court's ruling today," U.S. Attorney Benjamin B. Wagner said. "The question presented in this motion was not whether marijuana should be legalized for medical or recreational use, but whether decisions concerning the status of marijuana under federal law should properly be made in accordance with the science-based scheduling process set forth in the Controlled Substances Act passed by Congress."

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, said he was disappointed, but that the issue would be to the 9th Circuit on appeal.

"It's what's expected, in that there is longstanding precedent that when Congress or other governing bodies pass what the public considers to be bad law, the way to correct such laws is by the lawmakers themselves," Armentano said. "It's not the court's obligation to strike down improper or bad law. That's the job for the lawmakers. And so while a majority of the public may look at the federal government's classification of marijuana as a Schedule 1 controlled substance as ridiculous, the law being ridiculous does not make it unconstitutional and does not trump the federal government's very low rational basis verdict."

Armentano said he hopes that bipartisan legislation before the House and Senate to recognize cannabis' therapeutic utility and to reschedule it will be passed.

He noted that this is a unique situation in which "federal lawmakers are simply recalcitrant to amend a law that a majority of the public thinks is preposterous at this point, particularly when we now live in a society where 23 states and the District of Columbia have legalized the use of the marijuana plant as a medicine."

Chris Conrad, co-founder of Leaf Online and an expert witness in the hearings, also expressed his disappointment in Mueller's ruling.

"Real harms will continue to be done to our people as a result of the DEA's misclassification of marijuana as a Schedule 1 drug. I do not think her ruling lives up to the facts offered in this hearing, nor the hope offered by the U.S. Supreme Court itself through its Raich decision 10 long years ago. The legal defense team did an admirable job of presenting their case, and it is both my hope and my expectation that her unfortunate decision today will be reversed on appeal and, if need be, by the Supreme Court," Conrad said.

He added that he thinks Mueller "did something that was politically safe for her career rather than legally what was required by the law, and I find that very unfortunate that she chose political expediency over justice."

Mueller is expected to issue a written ruling by the end of the week.

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