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Federal Court Orders DEA To ‘Promptly’ Consider Marijuana Rescheduling…Or Else

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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.”

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

Congressional Report Urges DEA Action On Marijuana Cultivation Applications

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Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Los Angeles-based associate editor. His work has also appeared in High Times, VICE and attn.

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New York And Connecticut Governors Talk Marijuana Legalization On Fishing Trip

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The governors of New York and Connecticut went fishing and talked about marijuana legalization on Tuesday.

The conversation comes after lawmakers in both states were unable to pass legalization legislation before their respective sessions’ ends this year, despite having the support of New York Gov. Andrew Cuomo (D) and Connecticut Gov. Ned Lamont (D).

“We talked about policy issues like the marijuana issue, which is obviously also relevant to contiguous states,” Cuomo said at a press conference following the fishing trip. “What Connecticut does on marijuana is relevant to New York, what New York does is relevant to Connecticut so we talked about that and a lot of issues. So we had fun.”

Watch Cuomo’s marijuana comments at about 5:00 into the video below:

Cuomo had described legalization as a top legislative priority for 2019 and included it in his state budget proposal. But after months of negotiations with lawmakers, the plan fell through, due in part to disagreements about how to allocate tax revenue and whether to allow individual jurisdictions to opt out of allowing cannabis businesses.

The governor did sign legislation in July that expands the state’s marijuana decriminalization policy and provides a pathway for expungements of past marijuana convictions.

Over in Connecticut, Lamont campaigned on legalization during his election bid last year and described it as one of his administration’s “priorities” after he took office. But as with neighboring New York, the legislature failed to advance a legalization bill beside multiple successful committee votes and hearings throughout the year.

The specifics of what the governors talked about during their fishing expedition on Lake Ontario aren’t clear, but both are presumably gearing up for another round of legislative efforts marijuana over the coming year and could take lessons from each other as reform talks continue.

Another East Coast state, New Jersey, has also struggled to move legalization legislation forward, with lawmakers saying that the issue should be taken up by voters in 2020 rather than pushed through the legislature, though there has been discussion lately about another try at moving a bill before year’s end. Gov. Phil Murphy (D) did sign a decriminalization and expungements bill in May, however.

Federal Data Shows Youth Marijuana Use Isn’t Increasing Under Legalization

Photo courtesy of CBS 6.

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GOP Congressman Will Meet Attorney General To Discuss Expanding Marijuana Research

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Rep. Matt Gaetz (R-FL) said on Monday that he will soon be speaking with the U.S. attorney general about expanding marijuana research.

The congressman, a close ally of President Trump, is a vocal proponent of medical cannabis and has argued that the federal drug scheduling system is hampering research into the plant’s therapeutic potential.

“I will be meeting with Attorney General Bill Barr in the coming weeks to discuss the Department of Justice’s approach to unlocking more research grants so that we can have American innovation applied to our health care in a way that can get people off of some of these devastating opioids and painkillers, and on to a more natural product,” he said following a radio town hall event.

Even under the framework of prohibition, the Justice Department is able to promote research by, for example, approving additional marijuana manufacturers—something the Drug Enforcement Administration (DEA) said it would do three years ago.

Barr has voiced support for expanding the number of federally authorized cannabis manufacturers.

“I think we’re going to move forward on it,” the attorney general said in April. “I think it’s very important to get those additional suppliers.”

Earlier this year, Gaetz joined congressional colleagues in leading a letter addressed to Barr and the head of DEA expressing frustration that the Justice Department has declined to take action despite its pledges. The lawmakers implored DEA to “do whatever you can to speed up and improve the research application process.

Gaetz also introduced legislation that would force DEA to approve additional facilities to produce research-grade cannabis. A version filed last year cleared the Judiciary Committee in a voice vote, and he reintroduced the bill in January but it has not yet been acted upon.

Listen to Gaetz’s new cannabis comments, about 1:20 into the audio below:

DEA is facing two lawsuits regarding its approach to marijuana, including one that concerns the lack of diversity of research-grade cannabis since only one manufacture is currently authorized. The agency was ordered to respond to the suit by August 28.

Separately, a group of patients and advocates sued DEA over marijuana’s Schedule I status under the Controlled Substances Act, with a federal court directing the agency to “promptly” consider reclassifying cannabis.

Gaetz also spoke about the need to more broadly reform cannabis laws during the Monday remarks.

“The federal government listing marijuana as a Schedule I drug impairs financial transactions, it impairs research and it stops us from being able to unlock cures for some of America’s most vulnerable people,” the congressman said, adding that he’s a cosponsor of legislation that would deschedule marijuana that was introduced by Judiciary Chairman Jerry Nadler (D-NY).

Gaetz, who is also a member of the Judiciary Committee, said he is requesting that the panel hold a hearing on cannabis legislation. That’d mark the second such meeting after a Judiciary subcommittee convened last month to discuss paths to ending federal prohibition.

The congressman’s staff wasn’t able to provide Marijuana Moment with additional details regarding the meeting with Barr.

Congressman Says Marijuana Could Be Legal Sooner If Trump Stops Tweeting

Photo courtesy of Meredith Geddings.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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Elizabeth Warren’s Criminal Justice Plan Involves Legalizing Marijuana And Safe Injection Sites

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Legalizing marijuana, granting clemency to people convicted of drug offenses and investing in harm reduction programs such as safe injection sites are part of a criminal justice reform plan that Sen. Elizabeth Warren (D-MA) released on Tuesday.

The 2020 Democratic presidential candidate stressed that the war on drugs has been carried out in a racially discriminatory manner, writing that it’s unfair that “a kid with an ounce of pot can get thrown in jail, while a bank executive who launders money for a drug cartel can get a bonus. It’s long past time for us to reform our system.”

“This failure [of the drug war] has been particularly harmful for communities of color, and we need a new approach,” she said. “It starts with legalizing marijuana and erasing past convictions, and then eliminating the remaining disparity between crack and powder cocaine sentencing.”

What’s more, the drug war “has criminalized addiction, ripped apart families—and largely failed to curb drug use” when a more effective system would treat addiction as a public health issue.

That includes diverting people who’ve been convicted of non-violent drug offenses to treatment programs and providing evidence-based resources for people suffering from addiction. For example, Warren’s plan calls for safe injection sites where people can use illicit drugs under the supervision of medical professionals who can help prevent fatal overdoses and get people into treatment. She also said needle exchange programs and expanding access to buprenorphine would reduce the opioid crisis.

“Instead of locking up people for nonviolent marijuana crimes, I’ve proposed putting pharmaceutical executives on the hook to report suspicious orders for controlled substances that damage the lives of millions.”

She also called for the abolition of certain mandatory minimum sentences and said that “people who struggle with addiction should not be incarcerated because of their disease.”

“Mass incarceration has not reduced addiction rates or overdose deaths, because substance abuse disorder is a public health problem — and it’s long past time to treat it that way,” the plan says. “We know that diversion programs are both more humane and a better investment than incarceration — for every dollar we invest in treatment programs, we can save $12 in future crime and health care costs.”

“And rather than incarcerating individuals with substance abuse disorders, we should expand options that divert them into programs that provide real treatment.”

Like Sens. Bernie Sanders (I-VT), Cory Booker (D-NJ) and South Bend, Indiana Mayor Pete Buttigieg, Warren’s criminal justice reform proposal also mentions executive actions she could unilaterally take.

Specifically, she wrote that the Justice Department should not hold authority to make clemency recommendations and it should instead be left up to an independent clemency board so that those eligible for a pardons and commutations are more quickly identified.

“I’ll direct the board to identify broad classes of potentially-deserving individuals for review, including those who would have benefited from retroactivity under the First Step Act, individuals who are jailed under outdated or discriminatory drug laws, or those serving mandatory minimums that should be abolished,” she said.

The plan’s unveiling comes two days after Sanders released his criminal justice reform proposal, which also called for marijuana legalization and the implementation of harm reduction policies such as safe consumption facilities.

Buttigieg’s plan stands out from his fellow Democratic candidates in at least one regard: the mayor said drug possession should broadly be decriminalized.

Warren also released a separate plan for Indian tribes last week that involves protecting tribal cannabis programs from federal intervention.

Bernie Sanders Calls For Legalization Of Marijuana And Safe Injection Sites

Photo courtesy of Edward Kimmel.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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