Archive for the ‘LITIGATION’ category

District of Columbia: Voter-Approved Depenalization Plan To Become Law

February 25th, 2015

NORML Legislative Fly-InDistrict of Columbia officials are moving forward with implementing a voter-approved initiative depenalizing offenses involving the personal possession and/or cultivation of cannabis by adults.

The new law is set to take effect Thursday, February 26, at 12:01am. In a press release issued Tuesday, District officials — including Mayor Muriel Bowser and Police Chief Cathy Lanier — reaffirmed their intent to recognize the will of District voters, 70 percent of whom voted in favor of the municipal measure (I-71).

“In November, residents of the District of Columbia voted to legalize small amounts of marijuana by adults for personal, in-home use in the District,” said Mayor Bowser. “We will uphold the letter and the spirit of the initiative that was passed last year, and we will establish the Initiative 71 Task Force to coordinate our enforcement, awareness and engagement efforts and address policy questions as they arise.”

Initiative 71 permits adults to possess up to two ounces of marijuana and to cultivate up to six marijuana plants (no more than three mature at any one time) in one’s primary residence without facing any criminal or civil penalty. Not-for-profit transactions involving small amounts of the substance are also permitted; however, for-profit sales are prohibited as is the retail production or distribution of the plant.

The consumption of cannabis in public or on federal property also remains prohibited.

District officials contend that they possess the legal authority to depenalize minor marijuana offenses despite the passage of a federal spending provision in December prohibiting the District from spending any tax dollars to implement the new law. They argue that the municipal measure took effect upon passage in November and that Congress failed to take any explicit action to overturn the law during its requisite 30-day review period. (This Congressional review period is mandated law before any new District legislation may be imposed.)

District officials’ stance is not without some vocal critics. Earlier this week, two Republican members of Congress sent a letter to DC’s Mayor warning that Congress may take action if I-71 is enforced.

“If you decide to move forward … with the legalization of marijuana in the District, you will be doing so in knowing and willful violation of the law,” reads the letter signed by Rep. Jason Chaffetz (R-UT) and Rep. Mark Meadows (R-NC), chairman of the subcommittee that handles DC affairs.

In an interview with The Washington Post, Rep. Chaffetz threatened Mayor Bowser and city officials, stating, “[If District officials are] under any illusion that this would be legal, they are wrong. And there are very severe consequences for violating this provision. You can go to prison for this. We’re not playing a little game here.”

To date, neither spokespersons for the Mayor’s office and/or the DC City Council have responded directly to the Congressmen nor have they indicated that they intend to reconsider their decision to implement I-71 as voters intended.

Federal Judge Hears Closing Arguments In Constitutional Challenge To Cannabis’ Schedule I Status

February 12th, 2015

Federal Judge Hears Closing Arguments In Constitutional Challenge To Cannabis’ Schedule I StatusYesterday in Sacramento a federal judge heard closing arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification.

At issue is whether a rational basis exists for the government’s contention that cannabis is properly designated as a schedule I substance — defined as possessing a “high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety … under medical supervision.” A federal court has not heard evidence on the matter since the early 1970s.

Lawyers for the federal government argue that it is rational for the government to maintain the plant’s prohibitive status as long as there remains any dispute among experts in regard to its safety and efficacy. Defense counsel — attorneys Zenia Gilg and Heather Burke of the NORML Legal Committee — contend that the federal law prohibiting Justice Department officials from interfering with the facilitation of the regulated distribution of cannabis in over 20 US states can not be reconciled with the government’s continued insistence that the plant is deserving of its Schedule I status under federal law.

In October, defense counsel and experts presented evidence over a five-day period arguing that the scientific literature is not supportive of the plant’s present categorization. “Numerous clinical trials have been conducted using whole plant marijuana and have concluded the evidence strongly suggests therapeutic value,” defense counsel affirmed in a written brief filed with the court last month. “Physicians in 23 states and the District of Columbia have been recommending whole plant cannabis for treatment of a myriad of medical conditions. The United States, through SAMHSA (Substance Abuse Mental Health Services Administration, a branch of HHS), holds a patent [on the therapeutic utility of the plant.]”

“… It is unimaginable to believe that if heroin, cocaine, methamphetamine, or even over-the-counter medications were being distributed in 23 states and the District of Columbia, Congress and the President would abdicate all regulatory authority to those jurisdictions, and then cut off all funds … to intervene in related distribution activities. … Even the most vivid imagination would be hard pressed to reconcile such action with a ‘rational belief’ that marijuana is one of the most dangerous drugs in the nation.”

In a brief filed with the court by the federal government, it contends: “Congress’ decision to treat marijuana as a controlled substance was and remains well within the broad range of permissible legislative choices. Defendants appear to argue that Congress was wrong or incorrectly weighed the evidence. Although they failed to prove even that much, it would be insufficient. Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”

They add: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”

The Judge is anticipated to rule on defense’s motion within 30 days.

Legal briefs in the case, United States v. Pickard, et. al., No. 2:11-CR-0449-KJM, are available online here.

US Surgeon General Acknowledges “Marijuana Can Be Helpful”

February 4th, 2015

Newly appointed US Surgeon General Vivek Murthy believes that cannabis possesses therapeutic utility — an acknowledgment that contradicts the plant’s present placement as a Schedule I controlled substance under federal law.

Speaking to CBS News, Murthy said: “We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful.” He added, “I think we have to use that data to drive policy making and I’m very interested to see where that data takes us.”

Dr. Murthy was confirmed as US Surgeon General late last year.

His statements appear to be inconsistent with the Schedule I classification of marijuana under federal law — a scheduling that defines the plant and its organic compounds as possessing “no currently accepted medical use …. in the United States” and lacking “accepted safety … under medical supervision.”

Next week in Sacramento, a federal judge will hear final arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification. In October, defense counsel and experts presented evidence over a five day period arguing that the scientific literature is not supportive of the plant’s present categorization.

Briefs in this ongoing federal case are available online here.

Washington, DC: District Officials Move Forward To Enact Municipal Depenalization Initiative

January 15th, 2015

District of Columbia city officials this week moved forward with their intentions to implement a voter-approved municipal initiative depenalizing marijuana possession and cultivation offenses.

On Tuesday, city officials confirmed that Initiative 71 was transmitted to Congress for review. Under federal law, all District laws are subject to a 30-day review process by Congress, during which time members may take action to halt the law’s implementation.

Speaking to Roll Call this week, House Oversight and Government Reform Chairman Jason Chaffetz (R-Utah) said that language previously adopted by Congress in a December 2014 spending bill already prohibits DC officials from implementing I-71 and, thus, no further action by Congress is necessary. However, several District officials – including DC Delegate Eleanor Holmes Norton and DC Council Chairman Phil Mendelson – said that the federal provision in question in no way blocks city officials from enacting the new law.

“The District’s examination agrees with our analysis that the initiative was enacted when voters approved it and will take effect at the end of the 30-day congressional review period,” Del. Norton said in a statement.

Chairman Mendelson agreed, saying, “I happen to believe that the initiative was enacted so I think there’s no question that after the 30-day review it will be law.”

The District of Columbia Attorney General’s office has not yet commented in regard to how the District will respond if Congress does not address the initiative during the review process, Roll Call reported.

In November, 70 percent of District voters approved I-71, which removes criminal and civil penalties regarding the adult possession of up to two ounces of cannabis and/or the cultivation of up to six plants.

Separate DC municipal legislation – ‘The Marijuana Legalization and regulation Act’ – which seeks to regulate commercial cannabis production and retail sales, is also pending before the Council. If enacted, this legislation would also go before lawmakers for Congressional review and likely would force a federal challenge.

2014: The Year In Review — NORML’s Top 10 Events That Shaped Marijuana Policy

December 30th, 2014

2014: The Year In Review - NORML's Top 10 Events That Shaped Marijuana PolicyNORML reviews the top news stories of 2014.

#1 Marijuana Legalization Measures Win Big On Election Day
Voters in Oregon and Alaska decided on Election Day in favor of statewide initiatives legalizing the commercial production and sale of marijuana for adults, while voters in the nation’s capitol and in numerous other cities nationwide similarly decided on local measures to eliminate marijuana possession penalties.

#2 Colorado And Washington Begin Regulating Retail Marijuana Sales
Two states, Colorado and Washington, initiated retail marijuana sales in 2014. Colorado’s program began on January 1. In Washington, state-licensed retail outlets began legally selling cannabis to adults in July.

#3 Congress Enacts Measure Protecting State-Sponsored Medi-Pot Programs
President Barack Obama signed spending legislation into law in December that included a provision limiting the Justice Department’s ability to take criminal action against state-licensed individuals or operations that are acting in full compliance with the medical marijuana laws of their states. The amendment states, “None of the funds made available in this act to the Department of Justice may be used … to prevent … states … from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

#4 Congress Moves To Permit State-Sanctioned Hemp Cultivation
Federal lawmakers approved legislation in February permitting state-sponsored hemp cultivation to move forward despite the plant’s federal status as a Schedule I prohibited substance.

#5 Federal Judge Hears Challenge To Cannabis’ Schedule I Status
United States District Judge Kimberly Mueller heard five days of testimony in October in regard to the constitutionality of marijuana’s Schedule I status under federal law. Defense counsel and their experts argued that the scientific literature is not supportive of the plant’s present categorization. Judge Mueller is expected to make her ruling in early 2015.

#6 JAMA: Fewer Opiate-Related Deaths In Medical Marijuana States
The enactment of statewide medicinal marijuana laws is associated with significantly lower state-level opioid overdose mortality rates, according to data published in August in JAMA Internal Medicine. Researchers reported, “States with medical cannabis laws had a 24.8 percent lower mean annual opioid overdose mortality rate compared with states without medical cannabis laws.”

#7 President Acknowledges That Booze Is More Harmful Than Marijuana
Consuming cannabis is less harmful to the individual than is drinking alcohol, President Barack Obama acknowledged in January in an interview with The New Yorker. “I don’t think it (marijuana) is more dangerous than alcohol,” he stated. He added, [W]e should not be locking up kids or individual users for long stretches of jail time.”

#8 Study: Medical Marijuana States Have Fewer Violent Crimes
Medicinal cannabis laws are not associated with any rise in statewide criminal activity, according to data published in April in the journal PLoS ONE. “Medical marijuana laws were not found to have a crime exacerbating effect on any of the seven crime types. On the contrary, our findings indicated that MML precedes a reduction in homicide and assault,” authors concluded. “In sum, these findings run counter to arguments suggesting the legalization of marijuana for medical purposes poses a danger to public health in terms of exposure to violent crime and property crimes.”

#9 NYT Editors Opine In Favor Of Legalizing Cannabis
The New York Times editorial board in July called upon federal lawmakers to end the criminalization of cannabis for those over the age of 21. The paper’s editors opined: “The federal government should repeal the ban on marijuana. … Moderate use of marijuana does not appear to pose a risk for otherwise healthy adults. … [W]e believe that on every level, … the balance falls squarely on the side of national legalization.”

#10 Americans Say Marijuana Is Less Harmful To Health Than Sugar
Americans believe that consuming cannabis poses less harm to health than does the consumption of tobacco, alcohol, or sugar, according to the findings of a Wall Street Journal/NBC News poll released in March. Respondents were asked which of the four substances they believed to be “most harmful to a person’s overall health.” Most respondents said tobacco (49 percent), followed by alcohol (24 percent) and sugar (15 percent).

A “Hail Mary” Pass by our Political Opponents

December 22nd, 2014

Supreme_Court_BuildingFor those of us in the business of changing public policy, sometimes we judge our progress on what we have accomplished; and other times we judge our effectiveness by the desperate acts of our opponents. The federal law suit filed late last week by the states of Nebraska and Oklahoma, seeking a declaratory judgment from the U.S. Supreme Court holding Colorado’s legalization provisions to be unconstitutional, clearly falls in the latter category.

This suit is more political theater than a serious legal challenge. These two conservative state attorneys general know they are losing this fight in the court of public opinion, so they are hoping the Supreme Court will step in and overturn the will of the voters. Desperate times lead to desperate tactics, and the plaintiffs in this action were clearly feeling desperate.

To read the balance of this column, please go to Marijuana.com

Federal Evidentiary Hearing Regarding The Constitutionality Of Cannabis Prohibition Concludes

October 31st, 2014

Federal marijuana hearingUnited States District Judge Kimberly Mueller heard testimony over the course of the past five days in regard to the constitutionality of the federal statute designating marijuana as a Schedule I Controlled Substance. At issue in this evidentiary hearing is whether the scientific literature provides a rational basis for the federal classification of the plant as a substance with “a high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety” for use under medical supervision.

The federal government’s position was articulated in testimony provided by Dr. Bertha Madras, Professor of Psychobiology at Harvard Medical School and the former Deputy Director for Demand Reduction for the White House Office of National Drug Control Policy under President George W. Bush.

Expert witnesses for the defense who testified at the hearing were Dr. Carl Hart, Associate Professor of Psychology in the Department of Psychiatry and Psychology at Columbia University in New York City, retired physician Phillip Denny, Dr. Greg Carter, Medical Director of St. Luke’s Rehabilitation Institute in Spokane, Washington, and marijuana cultivation expert and archivist Chris Conrad.

Defense counsel for the litigants were NORML Legal Committee members Zenia Gilg of San Francisco and Heather Burke of Nevada City, CA. I assisted attorneys Gilg and Burke as a consultant in the case prior to the hearing and as their principle investigator during the hearing — a point that the federal government’s attorneys insisted on making public on Wednesday by insisting the judge recognize that: “Defense counsels’ investigator is the Deputy Director of NORML; he’s not some ordinary investigator.”

Representatives from California NORML as well as writer Jeremy Daw of TheLeafOnline were in attendance during the hearing and provide day-by-day coverage of events on their respective websites and at the links below. Dr. Madras was cross-examined both Wednesday afternoon and Thursday morning.

INTRODUCTION/GENERAL SUMMARY:
http://theleafonline.com/c/politics/2014/10/whytodayishistoric/

FRIDAY:
http://www.canorml.org/news/day_one_testimony_in_Federal_marijuana_rescheduling_hearing.html

MONDAY:
http://theleafonline.com/c/politics/2014/10/federal-prosecutors-appear-concede-cannabis-medical-benefits/

TUESDAY:
http://theleafonline.com/c/politics/2014/10/norml-feds-agree-benefits-cannabis/

WEDNESDAY:
http://theleafonline.com/c/politics/2014/10/medicine-trial-cannabis-scheduling-hearing/

THURSDAY:
http://theleafonline.com/c/politics/2014/10/schedule-hearing-concludes-judges-ruling-expected-december/

A ruling by Judge Mueller is not anticipated until after the first of the year.

Federal District Court Judge Asks: Should Federal Law Classify Cannabis As One Of The Nation’s Most Dangerous Drugs?

October 20th, 2014

Marijuana and the LawTestimony regarding the constitutionality of the federal statute designating marijuana as a Schedule I Controlled Substance will be taken on Monday, October 27 in the United States District Court for the Eastern District of California in the case of United States v. Pickard, et. al., No. 2:11-CR-0449-KJM.

Members of Congress initially categorized cannabis as a Schedule I substance, the most restrictive classification available, in 1970. Under this categorization, the plant is defined as possessing “a high potential for abuse, … no currently accepted medical use in treatment in the United States, … [and lacking] accepted safety for … use … under medical supervision.”

Expert witnesses for the defense – including Drs. Carl Hart, Associate Professor of Psychology in the Department of Psychiatry and Psychology at Columbia University in New York City, retired physician Phillip Denny, and Greg Carter, Medical Director of St. Luke’s Rehabilitation Institute in Spokane, Washington – will testify that the accepted science is inconsistent with the notion that cannabis meets these Schedule I criteria.

“[I]t is my considered opinion that including marijuana in Schedule I of the Controlled Substances Act is counter to all the scientific evidence in a society that uses and values empirical evidence,” Dr. Hart declared. “After two decades of intense scientific inquiry in this area, it has become apparent the current scheduling of cannabis has no footing in the realities of science and neurobiology.”

The government intends to call Bertha Madras, Ph.D., Professor of Psychobiology at Harvard Medical School and the former Deputy Director for Demand Reduction for the White House Office of National Drug Control Policy under President George W. Bush.

Additional evidence has been presented by way of declarations by Marine Sgt. Ryan Begin, a veteran of the Iraq War; Jennie Stormes, the mother of a child suffering from Dravet Syndrome – a pediatric form of epilepsy that has been shown in preliminary trials to respond to specific compounds in the cannabis plant; James Nolan, Ph.D. an associate professor of sociology and anthropology at West Virginia University and a former crime analyst for the US Federal Bureau of Investigation; and Christopher Conrad, noted cannabis author, archivist, and cultivation expert.

This is the first time in recent memory that a federal judge has granted an evidentiary hearing on a motion challenging the statute which classifies cannabis to be one of the most dangerous illicit substances in the nation. Attorneys Zenia Gilg and Heather Burke, both members of the NORML Legal Committee, contend that the federal government’s present policies facilitating the regulated distribution of cannabis in states such as Colorado and Washington can not be reconciled with the insistence that the plant is deserving of its Schedule I status under federal law.

They write: “In effect, the action taken by the Department of Justice is either irrational, or more likely proves the assertions made in Part I (B) of this Brief: marijuana does not fit the criteria of a Schedule I Controlled Substance.”

Speaking recently in a taped interview with journalist Katie Couric, United States Attorney General Eric Holder expressed the need to revisit cannabis’ Schedule I placement under federal law. Holder said, “[T]he question of whether or not they should be in the same category is something that I think we need to ask ourselves, and use science as the basis for making that determination.”

The testimonial part of the evidentiary hearing in United States v. Pickard, et. al., is expected to last three days.

Despite Legalization, Thousands of Americans Still Go to Jail–and Need Lawyers to Defend Them

July 7th, 2014

The temptation is to celebrate the enormous progress we have made over the last few years by legalizing marijuana for medical use in 22 states and the District of Columbia. Even more importantly, we’ve legalized marijuana for all adults in Colorado and Washington.

Thus, it’s easy to presume we’re getting near the finish line in this decades long struggle to legalize marijuana.

But that would be both presumptuous and premature.

The reality is that marijuana smokers remain the target of aggressive and misguided law enforcement activities in most states today. They read about the newly-won freedoms in a handful of states, and dream of the day when their state laws will become more tolerant; but they are still being busted in large numbers and have to worry that that next knock on the door may be the police with a search warrant, about to destroy their homes and wreck their lives, looking for a little weed.

CLICK HERE TO READ THE FULL ARTICLE ON MARIJUANA.COM

DEA Stands Down: Allows Kentucky To Go Forward With Hemp Planting

May 23rd, 2014

The Drug Enforcement Agency is permitting Kentucky farmers to go forward with plans to engage in the state-sponsored cultivation of industrial hemp.

According to the Associated Press, representatives from the federal anti-drug agency late Thursday granted Kentucky regulators permission to import an estimated 250 pounds of hemp seeds.

The agency had previously confiscated the seeds, which Kentucky officials had ordered from Italy. In response, Kentucky’s Agriculture Department sued the agency last week.

After two federal hearings, as well as a face-to-face meeting with Senate Minority Leader Mitch McConnell (R-KY), DEA officials on agreed to authorize the shipment of hemp seeds to go forward — ending the approximately month-long standoff. Kentucky’s first modern hemp planting may occur as soon as this weekend, the Associated Press reports.

In February, members of Congress approved language (Section 7606) in the omnibus federal farm bill authorizing states to sponsor hemp research absent federal reclassification of the plant. Since then, five states — Hawaii, Indiana, Nebraska, Tennessee, and Utah — have enacted legislation authorizing state-sponsored hemp cultivation. (Similar legislation is pending in Illinois and South Carolina.)

Kentucky lawmakers initially approve legislation regulating hemp production in 2013.

According to a 2013 white paper authored by the Congressional Research Service, a “commercial hemp industry in the United States could provide opportunities as an economically viable alternative crop for some US growers.”