Marijuana prohibition will be ruled unconstitutional in California this month.
On March 25th to be exact. That’s the date Judge Mueller of the Sacramento Division of United States District Court for the Eastern District of California will announce her verdict for United States v. Schweder. The case that will determine the constitutionality of cannabis’s Schedule I status, which currently puts it in the same category as heroin.
This is the first of many steps to fully legalize cannabis. Once the verdict is issued it will be appealed by whichever side loses and go to the 9th circuit court of appeals. If upheld, it will apply to the states that are part of the 9th circuit (west coast) and if appealed from there it goes to the US Supreme Court which of course applies to the whole country.
In short, the defense brief argues that the evidence failed to support the continued inclusion of marijuana in Schedule I under either strict scrutiny or active rational basis review and the government’s state-based enforcement of federal drug laws in marijuana cases violates Equal Sovereignty. Defense attorneys Zenia Gilg and Heather Burke do a good job of incorporating recent federal government actions into their constitutional arguments, most notably Section 538 of the Consolidated and Further Continuing Appropriations Act, 2015, which President Obama signed into law on December 16, 2014. This new law bars the use of U.S. Department of Justice funds to prevent a number of listed states “from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” This law not only supports the defense’s Equal Sovereignty argument, but as the defense argues, “how is it Congress can justify a finding that marijuana has no medical benefit while demanding that the distribution of medical marijuana be protected from federal government interference. This is not only irrational, it is absurd.” Defense Brief, at 36.
The government counters that there is a rational basis for marijuana’s continued exclusion in Schedule I, so that the defense’s equal protection argument fails. It also argues that (1) the defendants lack standing to challenge marijuana’s Schedule I listing; (2) the D.C. Circuit has exclusive jurisdiction over classification challenges; and (3) the government’s conduct does not violate Equal Sovereignty principles. The government predictably ignores the Section 538 amendment that prohibits funding of federal government attempts to interfere with state medical marijuana laws.
The article quoted from NORML’s blog The Leaf highlights the end of the 3 day evidentiary hearing.
Competing definitions of the word ‘medicine’ clashed in the fourth day of hearings over the federal scheduling of cannabis, a day which witnessed fiery exchanges between a NORML lawyer and a government expert.
Dr. Bertha Madras, the only government expert witness to take the stand in the evidentiary hearings scheduled by Judge Kimberly Mueller in the Eastern District of California for October 24-30, boldly asserted that while other substances may have demonstrable therapeutic benefits, only drugs which met extremely strict standards promulgated by the Food and Drug Administration could properly be called ‘medicine.’ The question is central to cannabis’ continued classification as Schedule I under the federal Controlled Substances Act, because it is the only one of the five schedules reserved exclusively for drugs lacking any medical value.
NORML attorney Zenia Gilg wasted little time attacking Dr. Madras’ expertise, pointing out within the first five minutes of her cross-examination that Madras, who has a PhD in biochemistry and served as an addiction adviser to the George W. Bush presidency, had never actually treated any patients or directly observed the effects of cannabis on humans. Instead Madras, who also teaches at Harvard Medical School, testified that she based her cannabis expertise entirely on the fact that she had “read the literature” on the subject. This experience directly contrasts with that of Dr. Carl Hart and Dr. Philip Denney, both expert witnesses for the defense who based their testimony in opposition to continued Schedule I classification on a combination of literature review and actual clinical experience (Dr. Hart directly studies the effects of cannabis on human subjects in his laboratory, and Dr. Denney attended to over 12,000 patients in his career as a physician). At times, her lack of firsthand knowledge became painfully obvious, especially when she claimed that the THC potency of cannabis found in dispensaries could be “between 1 and 30 percent.”
Despite lacking any firsthand knowledge of the human effects of her opinions, Dr. Madras confidently testified that plant-based cannabis was simply not medicine – although her definition of the term bordered at times on the tautological. For example, when Gilg questioned Madras about a study co-authored by Dr. Hart which showed that plant cannabis and Marinol (synthetic THC in pill form) were found to be equally effective in treating the symptoms of AIDS wasting syndrome, she quibbled about the study design, complaining that she’d “like to see how they did the side effect profile.” Even so, just a few minutes later, when attempting to explain the supposed superiority of single-ingredient medications over plant-based medications, she referred again to the Hart study, claiming with a winning smile that it “shows that single-chemical extracts can be just as effective. That’s a good take-home lesson.” Curiously, she made no mention of any supposed limitations of the Hart study the second time she discussed it.
Madras held steadfastly to her assertion that single-ingredient medications were categorically superior to plant-derived therapies, applying the logic even to the individual compounds found in cannabis resin. In particular, she called the promise of the therapeutic benefit of cannabidiol (CBD) “tantalizing,” even while calling plant cannabis “completely different” on the basis that “the interaction of cannabinoids is different than the action of individual cannabinoids,” an apparent reference to the entourage effect, the process by which the various components of cannabis resin apparently work together synergistically in a way that’s more effective than the sum of their individual parts. Indeed, she went so far as to admit that the entourage effect is “helpful,” yet continued to insist that only single-ingredient drugs could be medicine. At this point, Gilg appeared to catch Madras in a contradiction, eliciting testimony in which the professor said that she “wanted to see more studies of the individual cannabinoids” on the basis that some of them seemed to have “promise” as single-ingredient isolates. Yet when Gilg addressed Madras’ attention to about a dozen studies researching the very individual cannabinoids the witness had said she wanted to see, Madras was forced to admit that although she was aware that the studies in question existed, she had never actually read them.
Gilg attempted to rebut Madras’ claim that no adequate studies showing the medical benefits of cannabis existed by showing her the results of randomized, double-blind, placebo-controlled trials – which Madras herself called the “gold standard” of medical research – which revealed significant improvement for cannabis patients in various ways. Nevertheless, Madras dismissed nearly all of them, complaining that only experienced cannabis smokers had been recruited for the majority of the trials and insisting that because those studies hadn’t also included “naive users” in the drug population, their results were invalidated for everyone. “Does that mean,” retorted Gilg, “that the FDA only approves a drug if it believes it is useful for a majority of people?” Madras stumbled and stammered noticeably before explaining that she only meant to say that she would have preferred a more stringent study design.
At the end of a contentious afternoon session Madras’ cross-examination remained incomplete, and the parties adjourned to resume Thursday morning for the hearing’s final day. Dr. Madras stepped down from the witness stand and, as she approached the prosecutor’s table, Assistant US Attorney Richard Bender could be overheard asking the professor, “Is your brain in the mood to be buzzed?” – an apparent invitation to share alcoholic drinks.
Madras, true to form to the very end, declined.