Appeals Court Considers Marijuana Reclassification

October 17, 2012

Josh Crank, Lawyers.com

More than 10 years after it was initially filed, the latest petition to remove marijuana from Schedule I of the Controlled Substances Act is finally giving the herb its day in court. The current classification lumps cannabis in with drugs such as heroin, LSD and mescaline.

The District of Columbia U.S. Circuit Court of Appeals heard oral arguments this week in the case of Americans for Safe Access v. Drug Enforcement Administration, providing an opening for medical marijuana reform advocates to challenge the conventional law enforcement contention that marijuana has a “high potential for abuse” and is “without accepted medical use in treatment in the United States.”

Joe Elford, Chief Counsel for Americans for Safe Access, described an endless cycle orchestrated by federal drug enforcers in an effective effort to keep marijuana on Schedule I indefinitely. He argued that the Department of Health and Human Services is actively stifling much-needed research into marijuana’s medical benefits, citing the Schedule I classification as the basis for controlling research. The DEA completes the cycle by arguing that marijuana can’t be removed from Schedule I because there isn’t enough available research. This strategy has for years put a stranglehold on any opportunity for federally-accepted research into the medical marijuana benefits found in other studies.

“They’ve created a catch-22 so that they never have to be responsible for moving marijuana off of Schedule I,” said Kris Hermes, spokesperson for Americans for Safe Access. “They’re placing politics before science.”

DEA attorney Lena Watkins argued that the federal government does allow for research into the medical efficacy of marijuana, and that there have been 15 such studies that have met the government’s exacting standards. When asked by the three-judge panel why those studies have not convinced the DEA that marijuana has a legitimate medical use, Watkins said, “we don’t have the final results yet.”

Watkins reminded the court that neither state legislatures nor voters are qualified to judge the accepted medical use of marijuana, and stressed that “marijuana is the most widely abused drug in America.”

“The DEA often argues that just by the fact that marijuana is used by so many in the United States, that it’s tantamount to having high potential for abuse,” Hermes said. “That’s a ludicrous standard, and it’s not consistent with the way it’s used by the FDA.”

Key Legal Hurdle

The issue that tripped up two prior appeals of marijuana’s classification may be the downfall of this effort as well: A plaintiff must prove that he’s been harmed in order to have legal standing to sue. Past attempts to reschedule the drug failed because the plaintiffs weren’t able to prove this to the court’s satisfaction.

Before adjourning, the appeals court ordered the plaintiffs to provide supplemental briefing to make their case for standing, indicating it could be a fatal stumbling block yet again.

“They’re taking the standing issue very seriously,” Hermes said.

The plaintiff in this case is Michael Krawitz, a disabled United States Air Force veteran. Krawitz uses medical marijuana in combination with more conventional medications to alleviate pain resulting from a military service injury. But Krawitz is being denied medical services by the Department of Veterans Affairs because he’s a medical marijuana patient.

Krawitz said marijuana’s Schedule I classification has “caused my fellow patients to be imprisoned, be denied work, be denied housing, be denied the right to a firearm, and be removed from transplant lists.”

“Despite being an Oregon card-holding medical marijuana patient, I’ve had to access medical treatment for my pain outside the VA,” Krawitz said, adding that “this is done openly as punishment to stop me from using cannabis.”

A Curious Question

Since the appeal of this petition was granted, medical marijuana advocates have argued that regardless of the outcome, the opportunity to bring evidence of marijuana’s medical benefits before a court is a victory in itself.

They may need to look for victories where they can, as Judge Merrick Garland asked one question that suggested an ominous outcome.

“Don’t we have to defer to the agency?” he asked, referring to the DEA. “We’re not scientists. They are.”

Far from being scientists, the DEA is a federal law enforcement agency operating within the Department of Justice.



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