At a hearing last month, US District Court Judge Kimberly Mueller announced she would uphold the right of Congress to specify the process by which illicit drugs should be scheduled in the Controlled Substances Act (CSA) of 1970. The judge promised she would write a full opinion, which has just been released: UNITED STATES OF AMERICA, Plaintiff, v. BRIAN JUSTIN PICKARD, et al., Defendants.
The case stems from the indictment in 2011 of 16 people charged with conspiring to grow more than 1,000 marijuana plants in two California counties. The defendants claim the CSA is obsolete, and therefore the court should strike down the law and dismiss their indictment:
We’re not asking for reclassification. We’re asking that the statute be struck because it is unconstitutional at this particular day and this particular time in the history of the evolution of the evidence with regard to the effects of marijuana.
After explaining why the court has jurisdiction to hold an evidentiary hearing, the court narrowed the issue to evidence from scientists to determine whether Congress has a rational basis to place marijuana in Schedule I. Defense witnesses were Gregory T. Carter, M.D., Carl L. Hart, Ph.D., Philip A. Denney, M.D., and marijuana cultivator and processor Christopher Conrad. The government’s sole witness was Bertha K. Madras, Ph.D.
Judge Mueller notes the findings required for Schedule I are
- The drug or other substance has a high potential for abuse.
- The drug or other substance has no currently accepted medical use in treatment in the United States.
- There is a lack of accepted safety for use of the drug or other substance under medical supervision.
“Defendants claim that the weight of current medical knowledge shows marijuana does not satisfy these three criteria,” she writes, adding:
The Supreme Court has observed that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”
“Here, the facts relating to the three criteria as applied to marijuana, on which Congress initially relied in 1970, have not been rendered obsolete however much they may be changed and are changing. Selected facts relevant to each criterion illustrate this point,” she writes and then cites several. As for having a high potential for abuse:
As shown from the evidence in the record, there are conflicts in testimony and material disagreements as to whether marijuana has a high potential for abuse. For example, Dr. Carter testified that he advocated for reclassifying marijuana as a Schedule II substance. That testimony is important because the first criterion under both Schedule I and II is the same: “The drug or other substance has a high potential for abuse.” On redirect, however, he testified marijuana’s potential for abuse was “moderate.”
Dr. Madras, on the other hand, was adamant in her opinion that marijuana has a high potential for abuse: “There is no question that extensive data and practical experience support the conclusion that marijuana has a high potentialfor abuse, and is actually abused.”
“Congress could rationally find marijuana has a high potential for abuse,” Judge Mueller writes. As for no currently accepted medical use:
Similarly, the evidence shows that disagreements among well-informed experts as to marijuana’s medical use persist. Dr. Carter testified that although he believes the majority of physicians believe marijuana has medical benefit, other qualified professionals, including Dr. Madras, disagree with his opinion.
Dr. Hart’s testimony was consistent with Dr. Carter’s observation that he was “in the majority” of qualified people who think marijuana has medical use. And Dr. Denney’s testimony corroborated Drs. Hart’s and Carter’s testimony that there is a recognized minority view holding marijuana had no medical use.
Dr. Madras, on the other hand, stated that “a substantial majority—perhaps the vast majority—of scientists familiar with the literature and research” attest that, at this time, marijuana has no confirmed medical application. She conceded at most that cannabinoids, the components of marijuana, should be evaluated because there is scientific evidence that they may have medical benefit. Dr. Madras opined that while reasonable experts could find a way to conclude otherwise, that whole plant marijuana is known to have medical value, they would be ignoring some of the evidence to reach that conclusion.
“Defendants, here, have not met their ‘heavy burden of proving the irrationality of the Schedule I classification of marijuana,’ because they have not negated ‘every conceivable basis which might support it,’” Judge Mueller concludes. “In view of the principled disagreements among reputable scientists and practitioners regarding the potential benefits and detrimental effects of marijuana, this court cannot say that its placement on Schedule I is so arbitrary or unreasonable as to render it unconstitutional.”
Read Judge Mueller’s opinion here.
