The Obama administration has floated trial balloons in the media recently, indicating that the president will scale back the Drug War in his second term. But with a federal pot crackdown kicking in doors in the East Bay and throughout the nation, those who believe marijuana has medical value aren't waiting for another four more years of potential presidential duplicity.
On October 16, the US Court of Appeals in Washington, DC is scheduled to hear oral arguments in a forty-year-long battle to end cannabis' placement in Schedule One of the five-tiered Controlled Substances Act system for classifying drugs. Americans for Safe Access, representing a handful of patient-plaintiffs, hopes to get the DC circuit court to compel the Drug Enforcement Administration to reschedule pot to a less restrictive category — an idea the DEA has rejected twice since weed was provisionally placed in Schedule One by Congress in 1970. Under federal law, Schedule One drugs have "no currently accepted medical use" and "high potential for abuse," and include heroin, ecstasy, LSD, and mescaline.
However, cannabis has proven medical uses and a low potential for abuse, wrote Americans for Safe Access attorney Joe Elford in the appeal. Hundreds of modern medical studies testify to its medical efficacy and safety for treating cancer pain, nausea from chemotherapy, and spasticity from muscular sclerosis, among other serious medical problems.
When Congress placed "marihuana" in Schedule One in 1970 as part of the new Controlled Substances Act, it did so pending the review of a Commission on Marihuana and Drug Abuse. That independent commission recommended cannabis be decriminalized. But then-President Richard Nixon disregarded the commission's work and kept pot in Schedule One.
Weed can now only be removed from Schedule One by Congress, the president, or the attorney general — who has delegated that power to the DEA. Citizens can also petition the DEA to reschedule a drug, and citizens promptly did in 1972 — to comical effect.
That first DEA petition process lasted for an absurd 22 years. The DEA's rejection of the petition was reviewed on appeal by the DC circuit court five times, and the court has sometimes forced the DEA to confront the issue.
In 1986 the DEA's own administrative law judge in the case, Francis Young, recommended reclassifying marijuana. But the DEA rejected its own judge's recommendation, and denied the petition anyway.
In 1995, a new petition was started. The DEA took six years to deny that one, but the circuit court declined to review the appeal.
In 2002, a group called the Coalition for Rescheduling Cannabis filed a third petition, which the DEA denied in 2011. That sounds bad, but the DEA's unreasonable delay and denial opened the door to a circuit court appeal, Elford said. The circuit court, as a result, could compel the DEA to hold another rescheduling petition hearing.
Americans for Safe Access thinks this third petition can do better than the first or second ones because more scientific research exists on medical marijuana than ever before. Mainstream researchers like UC San Diego psychiatrist Igor Grant are joining a growing chorus of medical voices saying that pot's placement in Schedule One is "untenable."
The DEA is also violating its own rules in leaving pot in Schedule One, the appeal states. The DEA uses an absurdly high double-standard for pot scheduling compared to any other drug. Most drugs need medical experts to testify to a drug's efficacy before approval for use, but pot must first unite the world in a "scientific consensus" before it's reclassified. The DEA then prevents scientists from approaching such a consensus by withholding the only medically valid supplies of weed in the United States from researchers who would study its medical efficacy.
Oral arguments in the case will occur just weeks before the presidential election, creating another prime opportunity to educate voters on the hypocrisy that perpetuates federal marijuana policy, said ASA spokesman Kris Hermes. "I think the decades of attempts to reschedule a substance that the DEA itself has found to be medically active and not a danger to public health or a danger to patients is clearly a political issue," Hermes said. "It's Kafka-esque in the most excessive way."
The case could take years, but if the plaintiffs can compel the DEA to reschedule pot, it'll kick off a domino effect, leading to more marijuana research, more medical marijuana legalization, new medical marijuana defenses in federal court, and an eventual end to the weed war, said Hermes. "That very important ripple effect will knock the wind out of the sails of the federal government's crackdown in California and other states around this issue," he said. "The ability to conduct raids and intimidate property owners and public officials will become significantly hindered by a ruling that would reclassify marijuana."
There's nothing to stop the DEA from holding another petition hearing, and again ignoring the recommendations of its own judges, Hermes added. But the third denial would be a net gain for the marijuana law reform movement, he said. Such spectacles feed the ever-more-credible theory that pharmaceutical companies control Washington DC, the FDA, and the DEA. "The ability for the federal government to continue politicizing this issue and denying the medical evidence is going to become more and more difficult as the months and years progress," he said. "Really, this case will further open up the door for people to know the politicized nature of how marijuana is classified."
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