Marijuana Law, Policy & Reform

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Moritz College of Law

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Friday, March 21, 2014

Federal court to hold evidentiary hearing on the constitutionality of marijuana as a Schedule I substance

An Eastern District of California Court will be holding an evidentiary hearing this summer (June 2nd) on the constitutionality of the federal government's treatment of marijuana.  

The development comes in the context of a criminal prosecution.  The defense requested the hearing to present their claims that marijuana's classification under the Controlled Substances Act is irrational and that the DOJ's current enforcement policies raise equal protection problems.  The court granted the request over the government's opposition. 

I'm not sure whether the defense will be able to get any sort of discovery leading up to the hearing.  But, if so, we may have a chance to learn a bit more about the process that went into the DOJ's advisory memos or what was behind the DEA's nearly decade long delay before it took action and issued its most recent denial of a petition to reschedule marijuana.  (I'll admit that my knowledge of federal trial procedure is shaky at best.  If anyone has a sense of the likelihood of discovery for this type of hearing, I'd be very interested to know.)     

At the very least, I imagine the hearing will generate some media interesting coverage.  And even though the government has a pretty strong legal case, I'm not sure how well its position will play out in the court of public opinion.  After the President has said marijuana is no more dangerous than alcohol or tobacco, I think defending marijuana's Schedule I status will become an increasingly tricky thing to explain to reporters (of course, alcohol and tobacco are exempt from CSA regulation and scheduling status is not as important as many believe, but that doesn't change the fact that the  tension between the President's words and federal law's treatment of marijuana is a tough thing to get around in the media.)

The Eastern District of California Blog has the story (here's the first paragraph):

In United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, the EDCA Court yesterday apparently became the first court in the country to set an evidentiary hearing on defendants' constitutional claims that the continued inclusion of marijuana as a Schedule I controlled substance violates the Equal Protection Clause of the Fifth Amendment and the DOJ's enforcement policies violate the constitutional requirements of federalism and equal sovereignty.  The evidentiary hearing is currently set for June 2, 2014, at 9:00 a.m. before Judge Mueller.  The government is said to be bringing in attorneys from Main Justice in D.C. to handle the hearing.  Here are the briefs:   Defendants' Motion to Dismiss And Memorandum Of LawGovernment's Opposition, andDefendants' Reply Brief.

Thanks to MMP's Dan Riffle for sending this along.

http://lawprofessors.typepad.com/marijuana_law/2014/03/federal-court-to-hold-evidentiary-hearing-on-the-constitutionality-of-marijuana-as-a-schedule-i-subs.html

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Comments

I would subpoena the transcripts from the panel appointed by Nixon that placed marijuana on Schedule 1 in the first place.
IIRC they did not have evidence that marijuana was a dangerous addictive drug as claimed by the government drug law agency,,the panel was informed studies and clinical trials wer ongoing that would justify marijuana being a Schedule 1 substance,,instead science turned out the Schaeffer Report and marijuana was never removed from Schedule 1. The admission by the ONDCP that marijuana is no more dangerous than alcohol is testimony that the government has never had any science to prove it was.

Posted by: claygooding | Mar 30, 2014 5:23:47 AM

Cannabis shall be removed from CSA "Schedule I", and placed in "CSA Subchapter I, Part A, §802. Definitions, paragraph (6)", appended to the list "distilled spirits, wine, malt beverages, or tobacco", where it will STILL be the least-toxic in the category [by several orders of magnitude].

In other words, EXEMPT from CSA scheduling.

Anything short of THAT is UNACCEPTABLE.

http://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm

Posted by: Rick Steeb | Mar 30, 2014 9:40:10 AM

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