Pot's Continued Status as a Schedule I Drug Is Now Up to a Calif. Judge

The hearings have concluded, but the debate is still to come.

Although by now Judge Kimberly Mueller of the Eastern District of California has heard all of the expert testimony she will take to make her decision whether cannabis constitutionally belongs in Schedule I of the federal Controlled Substances Act, she will not make her decision until both sides have had an opportunity to argue the question through exhaustive briefs, a process which could take more than two months. So far, a firm deadline for written arguments has not been set, but Judge Mueller scheduled a “status hearing” to follow up with the parties’ progress for November 19th at 9 am. If the parties haven’t hit any snags by that time, she will probably set a final deadline for briefings on that date.

What she may rule is anyone’s guess. She did a good job of keeping her poker face up throughout the length of the proceedings, and her rulings on evidentiary motions don’t reveal any clear pattern of bias toward one party or another. The only real evidence to go on is the fact that she agreed to hold these historic hearings at all; the constitutionality of cannabis’ Schedule I status has presumably been challenged many times in federal court, but Judge Mueller is the only federal Article III judge to take up the question — at least, as far as I’m aware (I asked Paul Armentano, deputy director of NORML, who said that he had heard there may have been other federal judges who looked at the question in the 1970s, but that he could never verify the claim).

If she finds Schedule I classification unconstitutional, the US will probably appeal — although, upon reflection, that is not a certain outcome. After all, one loss in one district of one state doesn’t necessarily set any kind of national precedent, but if the DOJ appeals to the Ninth Circuit and loses there, then a precedent will have been set, and over a rather large swath of the country (i.e., all of California). So an appeal would be a risk for the prosecution.

Nevertheless, I think they’ll do it. Dale Gierenger, director of California NORML, pointed out to me that the Ninth Circuit has hardly been the best friend of the cannabis movement in recent decades, although he speculated that there was a good chance “we could get a sympathetic panel” (appeals courts often, but not always, hear cases in panels of three judges instead of all nine hearing a single case at once). Incidentally, this will mean more unwarranted suffering for the seven defendants in the trial, six of whom have already been held behind bars for three years awaiting their day in court, and who will have to wait there even longer while the constitutional basis of their still unproven charges are debated.

If all appeals courts (including, potentially, the Supreme Court of the United States) agree that cannabis cannot constitutionally be held in Schedule I, then the judges will order DEA Administrator Michele Leonhart (or her replacement) to remove cannabis’ listing from the schedule. This she will do — and then immediately re-list the drug in Schedule II, alongside drugs like cocaine and methamphetamine. As Gierenger pointed out to me, this move by itself will not end the federal war on cannabis — after all, the federal government still has the power to prosecute people who deal in cocaine and meth. But it will make a huge difference for the seven defendants in the present case, because constitutionally they cannot be found guilty of distributing cannabis as a Schedule II drug if it was not listed in Schedule II at the time that they distributed it. For this reason, a win on this hearing will probably reopen the cases of many drug war POWs who might have otherwise exhausted their recourses.

The other big difference the de facto rescheduling would make would be to make cannabis easier to study for its medical benefits. As Dr. Sue Sisley, among others, can attest, researching the potential therapeutic benefits of a Schedule I drug is anything but easy. Removal to Schedule II would presumably obviate many of the most onerous barriers to research.

If Judge Mueller rules against the defendant’s motion, the path forward is less clear. It is unknown whether Brian Pickard, who apparently paid for the NORML attorneys to have the hearing last week, can afford the immense cost of an appeal on his own; if he can’t, it will probably take the support of the entire community to do what Richard Nixon was supposed to do over forty years ago — get cannabis out of Schedule I.


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