A federal appeals court gave medical cannabis patients and reform advocates a small but significant procedural victory on Thursday, ruling that it would hold open a case challenging the scheduling status of marijuana under federal law.
In essence, the court is putting the federal government on notice that it must “promptly” make a decision on marijuana rescheduling so that those who rely on its medical benefits don’t unduly suffer.
A group of patients and advocates filed a lawsuit against the Justice Department in a U.S. District Court in 2017, alleging that the Schedule I status of cannabis under the Controlled Substances Act (CSA) poses serious health risks and unfair economic disadvantages.
The court dismissed the case last year, siding with the government in its scheduling determination and shooting down each of the plaintiffs’ claims. It also argued that the plaintiffs should have first pursued reform through an administrative process, seeking relief from the federal agencies responsible for drug scheduling, before pursuing judicial action.
Now, in a new opinion on an appeal filed by patients and their supporters, the U.S. Court of Appeals for the Second Circuit has agreed that they took the issue to the judicial branch prematurely when they should have exhausted their administrative options—but the court also determined that unique circumstances apply, particularly as it concerns the two children plaintiffs who argued that federal law jeopardizes their health and creates legal uncertainty.
“[W]e are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings,” U.S. Circuit Judge Guido Calabresi wrote for the majority. “Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.”
In other words, the appeals panel could have simply upheld the lower court ruling and dismissed the case, but instead it will keep the matter open so that it can take action if DEA fails to appropriately consider a change to marijuana’s legal status within a reasonable amount of time.
The case is “unusual,” the court wrote, because “among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health.”
“Taking the facts as alleged, and, accordingly, taking the supposed benefits some Plaintiffs have experienced from marijuana as true as well, we—like the District Court below—are struck by the transformative effects this drug has assertedly had on some Plaintiffs’ lives. As a result, we are troubled by the uncertainty under which Plaintiffs must currently live.”
It’s a ruling that sets this case apart from several other attempts to change the federal drug scheduling system through the courts, all of which have so far failed.
“I think what we have here is perhaps the most significant judicial milestone in the war against prohibition,” Joseph A. Bondy, an attorney who has worked pro bono on the case, told Marijuana Moment in a phone interview.
The plaintiffs in the case, which include young cannabis patients and advocates Alexis Bortell and Jagger Cotte, who suffer from rare conditions that they’ve effectively treated with cannabis products, told the court that they were concerned that DEA would “not move quickly enough to afford them adequate relief.”
With that in mind, the court said it would “retain jurisdiction of the case in this panel, for the sole purpose of taking whatever action might become appropriate should the DEA not act with adequate dispatch.” It emphasized, however, that it holds “no view whatever on the merits of Plaintiffs’ case—that is, on whether marijuana should be listed or not.”
“It is conceivable that, in response to a petition from Plaintiffs along the lines advanced before us now, the DEA would reschedule marijuana, rendering the current case moot,” the opinion says. “And if the DEA did not, the administrative process would generate a comprehensive record that would aid in eventual judicial review.”
The court also seemed to acknowledge the plaintiffs’ argument that the scheduling of cannabis may not fulfill its stated objectives—that as our understanding of the benefits and harms of marijuana continue to evolve, they raise questions about “whether the extant regulatory regime continues to advance the CSA’s goals in light of the current state of our knowledge about the drug.”
“It is possible that the current law, though rational once, is now heading towards irrationality; it may even conceivably be that it has gotten there already,” Calabresi wrote. “Courts are not especially good at dealing with situations of this sort by themselves. In such circumstances, dialogue between courts and other law‐defining institutions, like agencies, often works best.”
“A sensible response to our evolving understanding about the effects of marijuana might require creating new policies just as much as changing old ones. This kind of constructive governmental work, mixing adjudication and program‐design, creating policy through the balancing of competing legitimate interests, is not generally best accomplished by federal courts on their own; it is, however, the stock‐in‐trade of administration.”
(2/3) This case represents the first time in history that a lawsuit challenging the constitutionality of the CSA has survived dismissal. #TheFightGoesOn, as we continue to advocate for de-scheduling of Cannabis, patient liberation, & freedom for those wrongfully imprisoned.
— Michael Hiller (@MikeHillerEsq) May 30, 2019
Sebastien Cotte, a reform advocate and father of Jagger, told Marijuana Moment that the court’s judgement was groundbreaking.
“[K]ids like Jagger and Alexis don’t have time to wait for the government and their endless process,” he said. “We are talking about human lives that are running out of time quickly. So I’m hopeful this could be the game-changing case that every suffering and dying kid and patient in the country needs.”
Throughout the opinion, the court emphasized that the wellness of the plaintiffs, and the success they claimed to have had using cannabis as a treatment option, inspired their novel decision in the case. Calabresi said the court empathized with their situation and said their claims about medical cannabis “are no small things.”
Indeed, the plaintiffs “should not be required to live indefinitely with uncertainty about their access to allegedly life‐saving medication or live in fear that pursuing such medical treatment may subject them or their loved ones to devastating consequences.”
Bondy said he and his team will be working with experts to draft a petition for DEA action on marijuana scheduling over the next few months. While the court didn’t provide a timeline outlining how long the agency has to act on the petition, Bondy said that 180 days seemed reasonable, though that may change.
If the DEA declines to take action or delays its decision—rescheduling petitions typically take about nine years to go through the process, the appeals panel’s opinion noted—then the court has several judicial options at its disposal.
“Those actions could include things like compelling them to act—issuing what’s called a writ of mandamus—sanctioning them, having a hearing or finding at that point that we were correct” in arguing that their situation exempted them from first seeking administrative relief “and hearing us on the merits,” Bondy said.
Here’s more from the court’s conclusion:
“But we exercise our discretion to keep jurisdiction of the case in this panel, to take whatever action may become appropriate if Plaintiffs seek administrative review and the DEA fails to act promptly. And we note that, under the unusual health‐related circumstances of this case, what has counted as appropriate speed in the past may not count as appropriate speed here.
“In doing this, we specify that we are not retaining jurisdiction to review the actions the agency may take. Jurisdiction over those may well lie solely in another circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the Plaintiffs seek agency review and so inform us within six months, we will affirm the District Court’s judgment dismissing this case. (And if only some Plaintiffs seek agency review, we will dismiss the complaint as to those who do not.) But if Plaintiffs do seek agency review, and the agency fails to act with alacrity, Plaintiffs may return directly to us, under our retained jurisdiction.
“To be clear, we repeat that this case remains in our purview only to the extent that the agency does not respond to Plaintiffs with adequate, if deliberate, speed. In other words, we retain jurisdiction exclusively for the purpose of inducing the agency to act promptly.”
Bondy said he felt emboldened by the court’s judgement and that it speaks to success and energy of the broader reform movement.
“We are on the right side of this issue—the advocates, the activists—pursuing things like social equity, the right to medicate yourself with cannabis, the right to travel with cannabis, the right to decide what you’re going do with your body,” he said.
Read the court’s full opinion below:
18-859 Documents 2 by on Scribd
DEA Seeks Contractor Capable Of Burning Four Tons of Marijuana Per Day
The Drug Enforcement Administration (DEA) recently reached out for help burning “at least” 1,000 pounds of marijuana per hour for eight hours straight.
Every year, DEA seizes millions of marijuana plants and literal tons of raw cannabis, which eventually end up being destroyed. The successful contractor in Arizona would be responsible for burning marijuana and other controlled substances seized as evidence in drug cases “to a point where there are no detectable levels, as measured by standard analytical methods, of byproduct from the destruction process.”
“DEA shall inspect the incinerator to ensure no drug residue remains,” the agency said.
DEA posted the work description earlier this month in what’s called a “sources sought notice,” an initial step before a formal request for proposals is sent.
“This is not a request for proposals and does not obligate the Government to award a contract,” the post says. “The Drug Enforcement Administration (DEA) is conducting market research, and is encouraging all businesses, including small businesses, to respond to this notice.”
An accompanying statement of work gives a behind-the-scenes look at the DEA’s process of destroying seized drugs. Typical boxes weigh between 40 and 60 pounds, for example, but can weigh up to 200 pounds. Contraband might come in on “semi-trucks, tractor trailers, cargo vans, fork lifts, etc.,” the work description says.
“The drugs are usually tightly compressed ‘bricks’ or ‘bales,’” it continues, and are packaged in all sorts of materials: cardboard, wrapping paper, plastic wrap, aluminum foil, packing tape, “duct tape and derivatives,” plastic evidence bags, “grease/oil” and others. Contractors will be expected to burn that stuff, too.
To avoid potential contact highs, there must be ”proper ventilation” and “no smoke buildup” will be allowed. Other mandates include closed-circuit cameras that capture the entire process, which DEA reserves the right to access, as well as background checks and regular drug tests of all personnel.
Armed DEA agents and contractors will be present during scheduled burns.
The work is also very hush-hush, so whoever gets the job shouldn’t expect to regale friends with stories of the latest large-scale federal weed burning sesh.
“The contractor and its personnel shall hold all information obtained under the DEA contract in the strictest confidence,” the work description says. “All information obtained shall be used only for performing this contract and shall not be divulged nor made known in any manner except as necessary to perform this contract.”
The work would start January 1 of next year and the contract would expire in 2026 unless terminated sooner. The deadline to send information for would-be contractors was Friday.
Photo courtesy of Chris Wallis // Side Pocket Images
Harris Will Give Biden ‘Honest’ Input On Legalizing Marijuana And Other Issues As Part Of ‘Deal’
Democratic vice presidential nominee Kamala Harris says she has a “deal” with Joe Biden to candidly share her perspective on a range of progressive policies he currently opposes, including legalizing marijuana. Separately, she also recently discussed cannabis reform in a private meeting with rapper Killer Mike.
During an interview on 60 Minutes that aired on Sunday, the senator was pressed on marijuana and numerous other issues where she and Biden disagree. In response, while she didn’t specifically commit to proactively advocating for comprehensive cannabis reform, she pledged in general that she would always share her views with the would-be president if the pair are elected next week.
“What I will do—and I promise you this and this is what Joe wants me to do, this was part of our deal—I will always share with him my lived experience as it relates to any issue that we confront,” she said after the interviewer listed cannabis legalization among a handful of issues on which she and Biden depart. “I promised Joe that I will give him that perspective and always be honest with him.”
If elected, would Kamala Harris advocate for Medicare for All, a plan Joe Biden doesn’t support?
— 60 Minutes (@60Minutes) October 26, 2020
Asked whether that perspective will be “socialist” and “progressive,” Harris laughed and said “no.”
“It is the perspective of a woman who grew up a black child in America, who was also a prosecutor, who also has a mother who arrived here at the age of 19 from India, who also, you know, likes hip hop,” she said.
The senator’s taste in music also came up during her own 2020 presidential bid, when she said in an interview that she listened to Snoop Dogg and Tupac while smoking marijuana during college despite graduating before those artists released their debut albums.
Music culture has played a key role in this election cycle, and one of the strongest voices for criminal justice reform in the industry is Killer Mike, who worked as a surrogate for Sen. Bernie Sanders (I-VT) when he was running for the Democratic presidential nomination. The artist said he met with Harris on Friday and the two discussed cannabis business opportunities for communities of color.
Just had a meeting with Sen. Harris.
My points *Dems Need to be heavy on the door Knox’N, HR40 tweek it better and have Biden Sign, Fed Trades Programs for worker class Americans so u can build, Black men exit prison and entrance to marijuana biz as a priority for biz and jobs
— Killer Mike (@KillerMike) October 23, 2020
As she’s done repeatedly since joining Biden’s campaign, Harris also reiterated at a rally in Pontiac, Michigan on Sunday that the administration would pursue marijuana decriminalization and expunging prior cannabis convictions.
She made similar comments during a campaign event in Atlanta last week, stating that the “war on drugs was, by every measure, a failure, and black men were hit the hardest.” That said, while the senator has come to embrace broad cannabis reform, she’s faced criticism over her past opposition to legalization and role in prosecuting people for marijuana offenses as a California prosecutor.
In another interview released last week, Harris said she and Biden “have a commitment to decriminalizing marijuana and expunging the records of people who have been convicted of marijuana offenses.”
“When you look at the awful war on drugs and the disproportionate impact it had on black men and creating then criminal records that have deprived people of access to jobs and housing and basic benefits,” she said.
There’s been some frustration among cannabis reform advocates that Harris has scaled back her reform push since joining the Democratic ticket as Biden’s running mate. During her own run for the presidential nomination, she called for comprehensive marijuana legalization but has in recent weeks focused her comments on the more modest reforms of decriminalization and expungement.
Harris, who is the lead Senate sponsor of a bill to federally deschedule marijuana, said last month that a Biden administration would not be “half-steppin’” cannabis reform or pursuing “incrementalism,” but that’s exactly how advocates would define simple decriminalization.
In any case, the senator has repeatedly discussed cannabis decriminalization on the trail. She similarly said during a vice presidential debate earlier this month that she and Biden “will decriminalize marijuana and we will expunge the records of those who have been convicted of marijuana.”
In addition to those policies, Biden backs modestly rescheduling the drug under federal law, letting states set their own policies and legalizing medical cannabis.
Photo element courtesy of California Attorney General’s Office.
GOP Tennessee Senator Calls For Medical Marijuana Legalization In New Campaign Ad
A Tennessee senator touted his support for legalizing medical marijuana in a campaign ad released on Friday.
In the 30-second spot, which has notably high production value for this kind of local race, state Sen. Steve Dickerson (R) talks about both the therapeutic benefits of cannabis and the consequences of broader marijuana criminalization.
“As your state senator, I’ve led the fight to legalize medical marijuana so our veterans and sickest Tennesseans can deal with chronic pain,” he said. “But this same life-saving plant has led to mass incarceration, with nonviolent marijuana possession resulting in lengthy prison sentences.”
It’s past time for Tennessee to legalize medical cannabis and give our sickest residents a smart, safe treatment to help with chronic pain. Legalization and securing criminal justice reform have been my top priorities, and I won’t stop fighting until we’ve changed the law. pic.twitter.com/28eFUy3loZ
— Steve Dickerson (@DickersonforS20) October 23, 2020
“I think that’s wrong. That’s why I’ve been pushing for criminal justice reform,” the senator added.
Dickerson, who sponsored a medical cannabis legalization bill that cleared a Senate committee in March, said in a Q&A published earlier this month that the policy change would be among his top three legislative priorities if he’s reelected.
His Democratic opponent, former Oak Hill Mayor Heidi Campbell, is in favor of “fully legalizing marijuana,” with her campaign site stating that cannabis crimes “disproportionately impact people of color and it’s time to end marijuana prohibition.”
But while Dickerson has earned a reputation as a moderate Republican given his positions on issues like cannabis reform, he’s faced backlash after declining to denounce an independent ad taken out on his behalf that some, including the LGBTQ rights organization Tennessee Equality Project (TEP), called racist.
The ad, which was paid for by Lt. Gov. Randy McNally’s (R) political action committee MCPAC, hits Campbell over her support for a nonprofit organization that is designed to keep young people out of prison, and it frames the group as “radical” and “extremist.” TEP rescinded their endorsement of Dickerson over his refusal to condemn the ad.
In the Tennessee legislature, marijuana reform has yet to pass—but there’s growing recognition that voters are in favor of the policy change. For example, former House Speaker Glen Casada (R) released the results of a constituent survey last year that showed 73 percent of those in his district back medical cannabis legalization.
Another former GOP House speaker, Beth Harwell, highlighted her support for the reform proposal during her unsuccessful bid for governor in 2018, and she referenced President Trump’s stated support for medical marijuana on the campaign trail.
In other Tennessee drug policy politics, a lawmaker in June blocked a resolution to honor murdered teen Ashanti Posey because she was allegedly involved in a low-level cannabis sale the day she was killed.
Photo courtesy of Philip Steffan.