Controlled Substances Act may be unconstitutional

As an attorney, I am always disappointed that the courts in this country – both at the state and federal level – have refused to get involved in the efforts to end marijuana prohibition and end the practice of treating responsible marijuana smokers as criminals. But that is the reality.

While the courts in this country have played a leading role in ending racial discrimination, in guaranteeing women the right to obtain a legal abortion, in protecting the rights of the LGBT community, and in many other areas involving the protection of personal freedom, they have consistently rejected attempts to declare state and federal anti-marijuana laws as unconstitutional.

But that does not mean that we should give up the fight in the courts, and rely only on voter initiatives and elected officials to fix this problem. As long as there are new legal arguments to be made, and fresh and hopefully more convincing facts to be argued, we must continue to engage the courts in this struggle for personal freedom.

Washington, et.al v. Sessions, et.al

One such legal challenge, Washington, et.al v. Sessions, et.al, was recently filed in US District Court in the Southern District of New York by lead attorney Michael Hiller, with NORML Legal Committee (NLC) attorneys David Holland and Joseph Bondy serving as co-counsel. The full complaint can be found here.

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution.

Named as defendants in the case are Attorney General Jeff Beauregard Sessions, Acting Administrator of the DEA Chuck Rosenberg, the Justice Department, the DEA and the Federal Government.

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution.

Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

Joseph Bondy, a federal criminal defense attorney and legalization advocate, explained he felt it was important to “question the agenda of those who continue to push for enforcement of the CSA, given its unlawful and discriminatory impact and that so few in America support such an effort.” Co-counsel David Holland, a litigator and Executive Director of Empire State NORML, noted that “the efforts to criminalize Cannabis are relatively recent and were largely underwritten by racial and ethnic animus,” referring to recent findings that African Americans and other persons of color are four times as likely to be arrested under the CSA than white Americans, even though marijuana is used equally by people of color and Caucasians.

Perhaps the federal courts will surprise us at long last and finally take a critical look at marijuana prohibition, and find the courage to declare the CSA to be unconstitutional. That would be an enormous step forward in ending marijuana prohibition altogether. But regardless of the outcome of this particular suit, it is encouraging to see the criminal defense bar continue to push the legal envelope, and to advance the best and latest legal and factual arguments. At some point, the courts will have no choice but to strike downC1_8734_r_x prohibition as a violation of our personal

Source

CONGRESS WON'T GIVE JEFF SESSIONS MONEY TO FIGHT STATE MARIJUANA LAWS

Congress won’t give Attorney General Jeff Sessions any money to fight a war on state laws to legalize marijuana—at least not in the new budget bill.

A bipartisan group of House Democrats and Republicans agreed Sunday to $1 trillion in government spending to avoid a shutdown and see them through to the end of September.

But while it also gave $1.5 billion more for border security and $12.5 billion for new military spending, there wasn’t any money for Sessions to go after states that have legalized medical marijuana and or where the recreational use of the drug is legal.

The move quashes potential plans to try to prevent 44 states, plus Washington D.C. and the territories of Guam and Puerto Rico, “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The move led pro-legalization advocacy groups and House representatives to urge Congress to amend federal law, removing cannabis from the Controlled Substances Act at a time when support for legalizing marijuana is at an all-time high.

“I reject the idea that America will be a better place if marijuana is sold in every corner store,” Sessions said March 15, likening its use to heroin.

“I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana—so people can trade one life-wrecking dependency for another that’s only slightly less awful.”

America, he said: “needs to say clearly once again that using drugs will destroy your life.”

In 2016 13,000 Americans died of heroin overdoses while a U.S. Drug Enforcement Administration fact sheet reports no deaths from the use of marijuana.

Nonetheless, the U.S. Attorney General’s office has been reviewing an Obama-era directive that prevents the federal government from interfering in state level marijuana laws.

Marijuana possession is still a federal offence and Sessions had been considering whether he should enforce the federal U.S. Controlled Substances Act against users of the drug, which is ranks higher than cocaine and methamphetamines.

While Sessions said at a Justice Department press briefing in February that states can “pass the laws they choose,” he reminded them that it remains “a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”

Local and state law enforcement have traditionally been relied on to enforce federal law, but in recent instances where city police forces have refused to support Trump’s executive orders on immigration, the federal government has tried to sanction them.

Sessions reportedly told Colorado Governor John Hickenlooper’s chief of staff last week that he thought Obama’s marijuana directive is “not too far from good policy.”

That means it is time to “ amend federal law in a manner that comports with the available science, public opinion, and with America’s rapidly changing cultural and legal landscape,” said Justin Strekal, Political Director at The National Organization for the Reform of Marijuana Laws (NORML) in a statement May 1.

A recent poll by CBS News released April 20 found a 71 percent majority of Americans opposed federal action to stop marijuana sales in states where the drug had been legalized. In all, it found 61 percent of Americans want marijuana to be legalized—a five percentage point increase from the year before and the highest level of support recorded by the poll.

Republicans , known for hardline drug policies, have begun to support legalization too. Last July a poll showed 45 percent of Republicans support legalization measures. Less than a year before the same poll found 50 percent of Republicans opposed them.

“The people have spoken @realDonaldTrump. Don't let Jeff Sessions' draconian views on [marijuana] run roughshod over states,” wrote Trump campaign adviser Roger Stone on Twitter using the “420” code for pot on April 20.

Marijuana, both legal and medicinal, is projected to pull in $7.1 billion in profits in 2016, according to one study. But while the new spending bill gives medical marijuana patients and the businesses that support them “a measure of certainty,” said Oregon House Representative Earl Blumenauer in a statement Monday, the annual challenge of blocking federal action against state marijuana laws “must end.”

“We need permanent protections for state-legal medical marijuana programs, as well as adult-use,” he said.

The best way to achieve this is “removing cannabis from the Controlled Substances Act,” said Strekal, “so that states possess the flexibility to engage in their own marijuana regulatory policies how best they see fit.”

Source

Rohrabacher Farr Act extended until April 28,2017

From the National Organization for the Reform of Marijuana Laws (NORML):

Members of Congress have re-authorized a federal provision prohibiting the Justice Department from interfering in state-authorized medical cannabis programs. The provision, known as the Rohrabacher-Farr amendment, was included in short-term spending legislation, House Resolution 2028, and will expire on April 28, 2017.

Initially enacted by Congress in 2014, the amendment maintains that federal funds cannot be used to prevent states from "implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana." In August, the Ninth Circuit Court of Appeals unanimously ruled that the language bars the federal government from taking legal action against any individual involved in medical marijuana-related activity absent evidence that the defendant is in clear violation of state law.

Because the provision is included as part of a Congressional spending package and does not explicitly amend the US Controlled Substances Act, members must re-authorize the amendment annually. However, House leadership may prohibit federal lawmakers from revisiting the issue when they craft a longer-term funding bill this spring. Such a change in House rules would require members of the Senate to pass an equivalent version of the legislation, which would then need to be approved by House leaders in conference committee.