The classification of marijuana as a Schedule I drug was upheld as recently as last year, but now, defense attorneys in a criminal case have the opportunity to argue in a three-day hearing that the status should change

Daniel Wood, Christian Science Monitor

In a case that some say could change the relationship between the states and the federal government regarding marijuana, a US district judge in Sacramento, Calif., has granted a three-day hearing starting Monday that challenges the federal ban on the substance.

At issue is the classification of marijuana by the US Drug Enforcement Administration (DEA) as a Schedule I drug, established in the early 1970s. That is the same classification given to heroin, LSD, and Ecstasy. The status was reaffirmed in 2011 and upheld in a federal appeals court last year.

The hearing stems from a criminal case involving several men who were charged with growing marijuana on national forest land. The current evidentiary hearing was granted by Judge Kimberly Mueller after two San Francisco attorneys filed a motion last November to dismiss the charges on grounds that the indictment is unconstitutional. The defense attorneys are arguing that "marijuana does not fit the criteria of a Schedule I Controlled Substance" and shouldn't have been used to target their client.

“It’s earth-shattering to even have this hearing,” says Adam Levine, adjunct professor at Stetson University College of Law in Gulfport, Fla. “The fact that the judge is willing to hear this case means she is willing to question if the DEA’s original classification is constitutional.” He puts the chances of such a finding at “better than even.”

According to Kris Hermes, spokesman for the medical marijuana-related group Americans for Safe Access, the case could affect pending ones in Vermont, Colorado, and Washington – where states filed petitions to reschedule marijuana for medical use in 2011. And it could have bearing on the raids conducted last week at two medical marijuana dispensaries in West Hollywood and Westwood, Calif.: It could remove the legal premise underpinning the raids.

“So far, the DEA has given no explanation for these raids,” says Mr. Hermes, adding that both facilities operate in accordance with local and state laws. But he is encouraged that Judge Mueller is going to look at evidence, which he says courts have refused to do for decades in cases that his organization has been involved with.

Others are more skeptical about the current hearing changing anything, saying the standard that has to be met in court is very high.

“This constitutional challenge to the federal government’s regulation of marijuana is unlikely to succeed,” says Michael Moreland, vice dean of the Villanova University School of Law near Philadelphia, in an e-mail. To win, he says, the defendants have to show that the current classification of marijuana is unreasonable.

“That’s a very high legal standard to meet. Advocates of legalized marijuana have a better chance convincing Congress or the DEA to change the classification of marijuana. There is a process already in place to reclassify a drug, and I think federal courts will be reluctant to interfere with that,” he writes.

Others note that any ruling in this case would relate solely to the specific defendants in the case and could become broader only if appealed to higher courts.

Stanford law professor Robert MacCoun agrees that the case isn’t as strong as some may hope. “If we were starting from scratch, I very much doubt we'd put marijuana in Schedule I. But now that it's there, it isn't easy to move it out,” he writes in an e-mail.

All say that more would be known about the possible medical benefits of marijuana if the federal government had made it easier to study the drug scientifically. Now, they say, the question will be less the real or perceived benefits of marijuana and more its potential for danger.

Professor Levine and others see marijuana as less dangerous than other drugs on the Schedule I list, noting the fatal consequences often attached to heroin, for example. There are arguably greater dangers connected with some non-Schedule I drugs, too, including alcohol, cigarettes, and prescription drugs.

For a change in classification to happen, Professor MacCoun thinks more public acceptance is required, reflected in new lawmakers and laws.

“Perhaps court cases can resolve this,” he says. “But I think it is more likely to happen if and when state legalization spreads far enough to force us to confront the contradictions.”