Politics
Federal Appeals Court Hears Marijuana Rescheduling Arguments In Case Against DEA
Attorneys for a group of scientists and military veterans seeking to force the U.S. Drug Enforcement Administration (DEA) to formally reconsider marijuana’s restrictive federal classification made their case on Thursday to a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Questions from judges, however, focused less on the challenge’s merits than the procedural questions it raises.
“This is a really odd case,” Judge William Fletcher said at the beginning of the oral arguments, which lasted roughly 30 minutes. While the lawsuit hinges on DEA’s rejection of a cannabis rescheduling petition last year, the judge noted, the veterans and researchers now suing DEA weren’t party to that petition.
“Your clients filed no petition. You appeal the denial of somebody else’s petition,” he said. “Somehow that doesn’t strike me as reasonable to allow somebody to come in this way, without themselves having filed a petition. To piggyback on the denial of such an odd, abbreviated petition just doesn’t fit with the way the administrative process is supposed to work.”
The lawsuit—filed last year by cannabis researcher Sue Sisley of the Scottsdale Research Institute, the Battlefield Foundation and veterans Lorenzo Sullivan and Gary Hess—centers largely on the DEA’s 2020 denial of a one-page cannabis rescheduling petition filed by a separate individual. In its response, the agency argued that marijuana has no currently accepted medical value.
Lawyers for the group are appealing that decision, asking the court to order DEA to initiate a formal rulemaking process, which would involve expert testimony and public comment. They say DEA’s summary dismissal of past rescheduling petitions has not only been unconstitutional but also prevented important research into the drug’s medical potential.
Matt Zorn, one of the lawyers for the petitioners, told Marijuana Moment on Friday that he is “pleased that we got our day in court.”
“All a litigant can ask for is the opportunity to brief their case and explain their case to the judges—and judges had legitimate concerns,” he said. “I thought we addressed those concerns, and I think we presented a real problem for them. Despite the quote-unquote odd procedural posture, I do think it’s proper.”
“Our hope is that the panel reaches the merits, because there frankly really isn’t that much dispute that what’s going on here is wrong,” he added. “That’s the bottom line takeaway. Nobody’s really disputing that the agency’s interpretation of ‘no currently accepted medical use’ is wrong. What we’re arguing about whether or not we should be the ones to bring it to a court’s attention.”
At the arguments on Thursday, Zorn told the judges that it is “a well-established principle of administrative law that even if you miss the notice and comment period, you might have the ability to come in and challenge a rule.”
“The fact of the matter is these petitions generally take a really long time. This is a pure legal issue. It’s ripe for decision… My clients are suffering injuries from the failure to engage in rulemaking,” he said.
The plaintiffs initially filed their lawsuit, Sisley v. DEA, against the federal agency in May of last year, contending that DEA’s justification for maintaining a Schedule I status for cannabis violates the Constitution on numerous grounds. DEA attempted to dismiss the case, but the Ninth Circuit rejected that request in August.
During oral arguments, Zorn pointed to a number of cases as precedent to justify why his clients should be allowed to challenge DEA’s denial of the petition, most notably Massachusetts v. EPA, in which that state challenged the denial of a petition filed by another party. But judges pointed out that no case he cited clearly states who can and can’t rightfully appeal such an agency decision.
“Neither side is really citing case law that is directly on point here,” Zorn acknowledged. “I have not found any statute that is anything like this.”
Justice Department lawyer Daniel Aguilar, who represented the federal government at the oral argument, insisted that the court should dismiss the case and allow the group to file their own DEA rescheduling petition.
But the Ninth Circuit judges were similarly skeptical of the government’s stance. Aguilar argued that in Massachusetts v. EPA, for example, Massachusetts was allowed to appeal a denial of a petition it wasn’t a party to because of its special status as a U.S. state. To back up his position, he pointed to part of an opinion by Supreme Court Justice Anthony Kennedy.
Judge Fletcher, however, seemed to correct Aguilar on his interpretation. “The sovereign stuff that Justice Kennedy writes in that opinion goes entirely to whether or not it has a cognizable injury,” he said. “It really is not talking about whether or not Massachusetts has the right to appeal the denial of somebody else’s petition.”
The Ninth Circuit panel also included Judges Paul Watford and Daniel Collins.
Separate from the issue of standing, lawyers for the scientists and veterans have have raised questions about DEA’s reliance on scheduling standards that they feel are arbitrary and misinterpret federal law. To support that claim, they pointed to a federal memo from 1972.
The Bureau of Narcotics and Dangerous Drugs, a predecessor to DEA, sent a letter to the White House replying to a rescheduling petition to NORML, wherein it similarly referenced statutory obligations to maintain the existing schedule, rather than argue the merits.
“We concluded that the only alternative was to reject the petition,” the letter states. “The Attorney General simply has no powers to grant the petitioner’s request.”
Petitioners in the case also argue that government’s practice of granting the attorney general authority to schedule drugs based on his or her interpretation of international treaty obligations constitutes an “unconstitutional delegation of legislative authority.”
When the World Health Organization (WHO) schedules drugs under international treaties, Zorn argued, “the United States automatically has to do the same thing. The attorney general has no choice.”
The arrangement unconstitutionally vests power in WHO and the attorney general’s office, he said, rather than keeping it with Congress.
Sisley, the lawsuit’s lead plaintiff and president of the Scottsdale Research Institute (SRI), is a DEA-licensed researcher focused on investigating the therapeutic potential of cannabis for veterans. She’s sought to become a federally authorized marijuana manufacturer so that her facility can produce higher quality products for studies.
SRI has already taken the feds to court over past marijuana decisions, with results to show for it. The institute successfully forced DEA to issue an update on the status of their application processing and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding those proposals.
“What has been animating all of these lawsuits is that we can’t get the research done,” Zorn told Marijuana Moment last year, shortly after the current challenge was filed in district court. “The ideal result is that we stop filing lawsuits and the administration decides it wants to support cannabis research. But until that happens, we’ll be in the courts.”
Last month, Sisley and SRI received preliminary approval from DEA to be one of the first new federally authorized cultivators of cannabis for research.
Bill To Let Researchers Study Marijuana From Dispensaries Approved In Congressional Committee
Photo elements courtesy of rawpixel and Philip Steffan.
Politics
Florida Marijuana Activists File New Legalization Initiative For 2022 Ballot Following Supreme Court Defeats
Florida marijuana activists are making another push to place adult-use legalization before voters in 2022, filing a new petition with the state after previous versions of the reform were rejected by the state Supreme Court earlier this year.
The proposed constitutional amendment, which was approved for initial signature gathering last week, would allow adults 21 and older to use and possess cannabis. They could also grow up to nine plants for personal use. The initiative would not provide for retail sales, however.
Regulate Florida is leading the campaign and stressed that time is limited to get enough signatures to qualify for the ballot. Activists must first collect 222,898 valid signatures to prompt a judicial and fiscal impact review, then they need a total of 891,589 signatures to make the ballot.
That first hurdle has created headaches for advocates this year. After the state attorney general’s office requested a judicial review of the group’s prior legalization initiative—and filed briefs opposing the petitions—the state Supreme Court rejected it, as well as a separate reform proposal from an industry-backed campaign, because justices deemed the language misleading.
The new initiative seeks to avoid the court’s specific contentions with the prior measures.
A majority of justices found that the ballot summaries were “affirmatively misleading” because they said adult-use cannabis would be made lawful in the state without explicitly acknowledging that it would remain illegal under federal law. Regulate Florida has now gone out of its way to specify that nothing in its new initiative “purports to give immunity under federal law.”
The group also eliminated language on “limited use” of marijuana that led the court to reject its original proposal earlier this year.
Regulate Florida is asking voters to print, sign and mail out the new petition.
“Time is short, so we need you to send in your completed and signed petition today!” the group said. “We can do this if we work together.”
If the measure does end up on the ballot, at least 60 percent of Florida voters would have to approve it for it to be enacted. Recent polling shows that a majority of Florida voters (59 percent) support legalizing cannabis for adult use, so that’s a slim margin that shows that advocates will have their work cut out for them if the measure qualifies—particularly in a midterm cycle in which demographics that are more likely to support marijuana reform are less likely to turn out than in presidential election years.
A separate campaign, Make It Legal Florida, also had their legalization proposal rejected by court this year. Advocates intended to get reform on the ballot in 2020, but they announced early that year that they were shifting focus to 2022Â due to restrictive signature gathering requirements.
It’s not yet clear if that group, which had substantial funding from cannabis businesses and collected considerably more signatures on its petition prior to the court’s intervention than Regulate Florida had on its previous attempt, plans to file a new measure for next year’s ballot.
Florida is just one of multiple states where advocates are hoping to put cannabis reform before voters next year.
South Dakota marijuana activists are now ramping up for a signature gathering effort to put legalization on the 2022 ballot as the state Supreme Court continues to consider a case on the fate of the legal cannabis measure that voters approved last year.
New Hampshire lawmakers are pursuing a new strategy to legalize marijuana in the state that involves putting a proposed constitutional amendment on the ballot for voters to decide on in 2022.
Lawmakers in Maryland are also crafting legislation to place a marijuana legalization referendum on the 2022 ballot after the House speaker called for the move.
Nebraska marijuana activists announced recently that they have turned in a pair of complementary initiatives to legalize medical cannabis that they hope to place on the state’s 2022 ballot.
Ohio activists recently cleared a final hurdle to begin collecting signatures for a 2022 ballot initiative to legalize marijuana in the state.
Missouri voters may see a multiple marijuana initiatives on the state’s ballot next year, with a new group filing an adult-use legalization proposal that could compete with separate reform measures that are already in the works.
Arkansas advocates are collecting signatures to place adult-use marijuana legalization on the ballot.
Activists in Idaho are working to advance separate measures to legalize possession of recreational marijuana and to create a system of legal medical cannabis sales. State officials recently cleared activists to begin collecting signatures for a revised initiative to legalize possession of marijuana that they hope to place before voters on the 2022 ballot. Meanwhile, a separate campaign to legalize medical cannabis in the state is also underway, with advocates actively collecting signatures to qualify that measure for next year’s ballot.
After a House-passed bill to legalize marijuana in North Dakota was rejected by the Senate in March, some senators hatched a plan to advance the issue by referring it to voters on the 2022 ballot. While their resolution advanced through a key committee, the full Senate blocked it. However, activists with the group North Dakota Cannabis Caucus are collecting signatures to qualify a constitutional amendment to legalize cannabis for the 2022 ballot.
Oklahoma advocates are pushing two separate initiatives to legalize marijuana for adult use and overhaul the state’s existing medical cannabis program.
Wyoming’s attorney general recently issued ballot summaries for proposed initiatives to legalize medical marijuana and decriminalize cannabis possession, freeing up activists to collect signatures to qualify for the 2022 ballot.
And it’s not just marijuana measures that reform activists are seeking to qualify for state ballots next year. A California campaign was recently cleared to begin collecting signatures for an initiative to legalize psilocybin. And advocates in Washington State have announced plans to put a proposal to decriminalize all drug before voters.
Read the text of the new Florida marijuana legalization initiative below:
Politics
Rhode Island Lawmakers Are ‘Very Close’ On Marijuana Legalization Deal Ahead Of Possible Special Session, Top Senator Says
A top Rhode Island senator says lawmakers are “very close” to reaching a deal on a marijuana legalization bill that could be taken up during a special session this fall.
Senate President Dominick Ruggerio (D) was asked for a status update on negotiations that have been taking place on the reform proposal since lawmakers adjourned for the session. He told WPRI-TV that while there are still outstanding issues to be resolved, he believes legalization will be taken up before the end of the year.
“We’ve had people working on that issue since we’ve left the session this year,” he said.
“We sent legislation—which we think is a very good piece of legislation—over to the House before we left in June,” the senator said, referring to a legalization bill that his chamber approved in June. “They are working on that legislation with some of the House people at this point in time.”
A special session has yet to be called, but Ruggerio said he feels an agreement on cannabis reform will be made in time to call lawmakers back to the State House within the coming months.
“We’re hoping we can get cannabis done. We’re very close. We’re making progress, but we’re not there at this point in time,” he said. “There’s a couple stumbling blocks that they are addressing right now, and we’ll see how that shakes out.”
What remains to be seen is whether the negotiated legalization bill that’s ultimately produced will satisfy advocates and progressive lawmakers, some of whom have rallied behind an agenda for reform that emphasizes the need for bold social equity provisions.
Negotiators have been working to reconcile competing proposals from the House, Senate and Gov. Daniel McKee (D). While the bills each contain components meant to address the harms of marijuana criminalization, the coalition led by Reclaim Rhode Island says they’re insufficient. Advocates and supportive lawmakers have laid out specific items that they want to see incorporated such as setting aside half of cannabis business licenses for communities most impacted by prohibition.
“We can’t reverse the harm of the war on drugs, but we can start to repair it by passing automatic expungement and waiving all related fines, fees and court debt,” Rep. Karen Alzate (D), chair of the Rhode Island Legislative Black and Latino Caucus, said earlier this month. “This bold legalization plan offers us the chance to turn a new leaf for the Ocean State, and it’s time we take it.”
Ruggerio, for his part, said he does feel that the legalization bill that was approved in the Senate contained “very strong social justice provisions” and the expungements provision is “as close to automatic as practical.”
Reclaim Rhode Island isn’t the only group pushing lawmakers to expeditiously work to pass legalization. It’s part of a coalition of 10 civil rights and drug policy reform advocacy groups—including the Rhode Island chapters of the ACLU and NAACP—that recently demanded that lawmakers move ahead with enacting marijuana reform in the state before the end of 2021.
House Speaker Joe Shekarchi (D) said in July that while there’s not yet a consensus among legislators and the governor on a deal to legalize marijuana, it’s still a “workable” issue and would be prioritized if negotiations succeed this summer and a special session is convened this fall.
The speaker said this month that bicameral negotiators “are continuing to have productive discussions about the significant policy implications associated with legalizing marijuana for personal use, including, but not limited to, some of the issues raised today at the press conference” by activists and lawmakers.
Rep. Scott Slater (D), for his part, recently told Marijuana Moment that “things are still where they were” prior to the end of session. Lawmakers are “trying to figure out a reconciliation between my bill, the Senate’s and the governor’s.”
Meetings over the summer have been “mostly informal” so far, the representative said. “I think we can get there before next year. It will not be perfect, and I am sure a work in progress.”
Ruggerio said in July that he’s not disappointed the House hasn’t advanced legalization legislation yet and that “what we really wanted to do was send it over and have them take a look at it” when his chamber passed its cannabis reform measure.
Shekarchi, for his part, previously said that he feels reform is “inevitable.”
A key disagreement between the House, Senate and governor’s office concerns who should have regulatory authority over marijuana. Ruggerio was pressed on the issue during a recent interview and said members of his chamber agree that “a separate commission is the way to go with respect to this.”
The House and McKee, on the other hand, want the program to be managed by the state Department of Business Regulation (DBR). Ruggerio noted that “it was difficult to negotiate on a bill when the House bill really didn’t come until late in the session.”
Senate Majority Leader Mike McCaffrey (D) was also recently asked about provisions related to allowing local municipalities to opt out of allowing marijuana businesses to operate in their area. He said “once the legislation is passed and whatever form is passed in, the communities have an opportunity to opt out.”
“They have an opportunity to opt out if the community doesn’t want to participate in it,” he said. “That’s their decision—however, they don’t get the funds that would come from the sales in that community.”
The majority leader also noted that neighboring states like Connecticut and Massachusetts have enacted legalization, and that adds impetus for the legislature to pursue reform in the state.
Shekarchi, meanwhile, said in July that he doesn’t intend to let regional pressure dictate the timeline for when Rhode Island enacts a policy change. Social equity, licensing fees, labor agreements and home grow provisions are among the outstanding matters that need to be addressed, the speaker said.
The House Finance Committee held a hearing on Slater’s legalization measure in June.
The governor previously told reporters that while he backs legalization it is “not like one of my highest priorities,” adding that “we’re not in a race with Connecticut or Massachusetts on this issue.”
“I think we need to get it right,” he said, pointing to ongoing discussions with the House and Senate.
The House Finance Committee discussed the governor’s proposal to end prohibition at an earlier hearing in April.
Both the governor and the leaders’ legalization plans are notably different than the proposal that former Gov. Gina Raimondo (D) had included in her budget last year. Prior to leaving office to join the Biden administration as commerce secretary, she called for legalization through a state-run model.
McKee gave initial insights into his perspective on the reform in January, saying that “it’s time that [legalization] happens” and that he’s “more leaning towards an entrepreneurial strategy there to let that roll that way.”
Shekarchi, meanwhile, has said he’s “absolutely” open to the idea of cannabis legalization and also leans toward privatization.
Late last year, the Senate Finance Committee began preliminary consideration of legalization in preparation for the 2021 session, with lawmakers generally accepting the reform as an inevitability. “I certainly do think we’ll act on the issue, whether it’s more private or more state,” Sen. Ryan Pearson (D), who now serves as the panel’s chairman, said at the time.
Meanwhile, the governor in July signed a historic bill to allow safe consumption sites where people could use illicit drugs under medical supervision and receive resources to enter treatment. Harm reduction advocates say this would prevent overdose deaths and help de-stigmatize substance misuse. Rhode Island is the first state to allow the facilities.
The Senate Judiciary Committee also held a hearing in March on legislation that would end criminal penalties for possessing small amounts of drugs and replace them with a $100 fine.
Pennsylvania Senators Will Consider DUI Protections For Medical Marijuana Patients At Hearing
Photo courtesy of Brian Shamblen.
Politics
Biden Should Grant Clemency To Thousands, Including People With Drug Convictions, Congressional Lawmakers Say
Congressional lawmakers are pushing President Joe Biden to grant clemency to nearly 20,000 people in the federal prison system—including those with drug convictions.
The Biden administration is already asking a fraction of people with drug convictions who were placed on home confinement amid the coronavirus pandemic to apply for the relief. But nearly 30 members of Congress signed a letter to the president on Friday urging him to take additional steps for a broader pool of people.
“As our country continues to work to address racial and systemic injustices in our prison system, we must make a reality of our nation’s founding principles of liberty and justice for all,” they wrote. “This moment in history can be a defining one for criminal-legal reform, and following actions by Congress last year, granting clemency for thousands of people will move us closer to our ideals of liberty and justice.”
The lawmakers are imploring Biden to commute the sentences of more than 4,000 people who were put on home confinement as part of the CARES Act. Additionally, they’re advocating for the processing of 15,000 other clemency applications that have been submitted.
This also comes days after a group of more than 150 celebrities, athletes, politicians, law enforcement professionals and academics signed a letter that was delivered to Biden, asking him to issue a “full, complete and unconditional pardon” to all people with non-violent federal marijuana convictions.
The new letter from the lawmakers—which was led by Reps. Cori Bush (D-MO), Bonnie Watson Coleman (D-NJ), Pramila Jayapal (D-WA) and David Trone (D-MD)—states that “we implore your administration to extend compassion to each person currently on home confinement under the CARES Act and to refrain from placing arbitrary categorical restrictions on who deserves to remain home.”
These men and women have been serving their time at home, contributing to society and in many cases working and caring for family members. pic.twitter.com/wIQ4I8y1gb
— Rep. Bonnie Watson Coleman (@RepBonnie) September 17, 2021
It goes on to encourage the establishment of an independent advisory board “to streamline and modernize the decades-old clemency process, and provide expeditious review of the thousands of cases awaiting answers to their clemency petitions.”
“This advisory board must address the racially disproportionate impacts of our criminal-legal system,” the lawmakers wrote. “There is no reason to wait.”
“By granting commutation to the 4,000 on home confinement and committing to restructuring the clemency process at-large, your administration has an opportunity to fulfill a campaign promise to reduce our nation’s prison and jail population and improve the lives of the people and communities across the country who have been most harmed by a punitive and racially biased criminal-legal system,” the letter says.
The letter doesn’t specifically talk about relief for people with federal drug convictions—despite the fact that Bush and Watson Coleman introduced a historic bill to federally decriminalize all drugs earlier this year—but it does cite the case of Gwen Levi, a grandmother who was placed on home confinement under the CARES Act after serving 16 years in prison over a drug conviction.
“Clemency is a constitutional imperative,” the letter, which was first reported by The Hill, says. “Granting commutations to those on home confinement and restructuring the clemency process demonstrates genuine compassion, while ensuring that our country continues to mitigate the risks of COVID-19, particularly in the populations that are most vulnerable to its spread.”
“As Members of Congress who care deeply about ending systemic and racial injustice in our criminal legal system, and who are willing to do everything possible to ensure every community is safe from the deadly consequences of this pandemic, we stand ready to work with you,” it concludes.
Other notable signatories include Judiciary Committee Chairman Jerrold Nadler (D-NY) and Reps. Earl Blumenauer (D-OR), Barbara Lee (D-CA), Karen Bass (D-CA), Steve Cohen (D-TN), Alexandria Ocasio-Cortez (D-NY), Ilhan Omar (D-MN) and Ayanna Pressley (D-MA).
A coalition of advocates and lawmakers sent letters with a marijuana-specific clemency request to Biden early in his presidency in February.
White House Press Secretary Jen Psaki said during a press briefing last month that Biden is “exploring multiple avenues to provide relief to certain nonviolent drug offenders, including through the use of his clemency power.”
The administration is “working hard every day to reform our justice system in order to strengthen families, boost our economy, give people a chance at a better future,” she said. “As part of this, the president is deeply committed to reducing incarceration, helping people successfully reenter society. And he has said too many people are incarcerated—too many are black and brown.”
Psaki added at the time that there was nothing actionable to preview at that point, but said the president is “looking at a range of avenues” for relief. The fact that, as a senator, Biden played a key role in enacting punitive drug laws that contributed to the mass incarceration he’s now considering steps to resolve did not come up during the exchange.
Biden has faced criticism from drug policy reform advocates who’ve grown frustrated that he’s yet to make good on campaign promises such as decriminalizing marijuana. While his opposition to adult-use legalization remains a challenge on its own, they feel he should at least take steps to enact modest reform.
The president also campaigned on expunging prior cannabis records and respecting the rights of states to set their own laws.
Since taking office, however, his administration has not made progress on any of those pledges and has instead fired its own White House staffers over marijuana and sought to extend a budget provision that has blocked Washington, D.C. from legalizing cannabis sales.
In April, Psaki was pressed on Biden’s clemency promise for people with federal marijuana and said that process will start with modestly rescheduling cannabis—a proposal that advocates say wouldn’t actually accomplish what she’s suggesting.
Moving cannabis from Schedule I to Schedule II under the Controlled Substances Act, as Biden proposed on the campaign trail, wouldn’t facilitate mass clemency given that being convicted for crimes related to drugs in that slightly lower category—which currently includes cocaine—also carries significant penalties.
Sen. Bernie Sanders (I-VT) said during a recent interview that Biden could and should use executive authority to end federal marijuana prohibition on his own—but the two of them have “differences” when it comes to drug policy. There are, however, legal questions about whether a president could actually legalize cannabis unilaterally given existing statutes.
Read the new letter to Biden on clemency below:Â
Pennsylvania Senators Will Consider DUI Protections For Medical Marijuana Patients At Hearing
Photo courtesy of Flickr/Marc Nozell.
