Criminal Case Reopens the Issue of Marijuana’s Legal Status

This
week a federal judge in California
held a hearing on marijuana’s legal status under the Controlled
Substances Act (CSA). The context was not, as you might expect, one
of those rescheduling petitions that the Drug Enforcement
Administration
routinely rejects. Instead it was a criminal case. U.S. v.
Schweider, in which a man charged with marijuana cultivation
is seeking dismissal of the indictment by
arguing that the plant’s Schedule I status violates the Fifth
Amendment’s guarantee of equal protection. The defendant, Brian
Pickard, maintains that putting marijuana in the CSA’s most
restrictive category is so arbitrary and unscientific that it fails
even the highly deferential “rational basis” test, which is the
standard courts generally use for equal protection cases that do
not involve a “suspect class” such as race. 

While marijuana’s legal status is certainly irrational as that
term is usually understood, that does not mean courts will
recognize it as such for constitutional purposes. To pass the
rational basis test, a law must be rationally related to a
legitimate government interest. But in practice, courts will accept
pretty much any justification that a government lawyer can offer
with a straight face. Furthermore, the courts so far have upheld
the DEA’s refusal to reclassify marijuana. Given the DEA’s legal
track record in this area, it is all the more remarkable that U.S.
District Judge Kimberly Mueller, against the prosecution’s
objections, agreed to a hearing on whether
marijuana belongs in Schedule I, which is supposedly reserved
for drugs with “a high potential for abuse” that have “no currently
accepted medical use” and are so dangerous that they cannot be used
safely even under a doctor’s supervision.

Although marijuana is supposed to meet all three of those
criteria, it is doubtful whether it meets any of them. Like any
psychoactive substance, marijuana has some potential for abuse, but
it seems absurd to assert, as its placement in Schedule I
signifies, that it has a higher potential for abuse than
methamphetamine, morphine, and cocaine, all of which are Schedule
II drugs, the barbiturates in Schedule III, or the benodiazepines
in Schedule IV. In his
motion to dismiss the charges against him, Pickard notes that
marijuana has a stronger safety profile than many prescription
drugs in lower schedules as well as several over-the-counter
medications. To rebut the DEA’s claim that marijuana has no
accepted medical use, he cites the substantial body of research on
marijuana’s medical applications, its acceptance as a medicine by
nearly half of the states, the willingness of doctors in those
states to recommend it for patients, and survey data indicating
that most doctors think medical use of marijuana is appropriate in
some cases.

Defense witnesses elaborated on these points in their
testimony this week, highlighting marijuana’s long history of
use, its remarkable safety, and the evidence of its medical
utility. Philip Denney, a California physician specializing in
cannabis recommendations, noted that the federal government
implicitly recognizes marijuana as a medicine by shipping it to
patients under the so-called
Investigational New Drug program, which has been closed to new
applicants since 1992 but still supplies several patients. The
Leaf Online reports
that Assistant U.S. Attorney Richard Bender objected to that
testimony, but Judge Mueller allowed it because Bender was not
quick enough with his objection. Bender also helped the defense by
noting, while questioning Denney about a study of marijuana as a
treatment for chronic pain, that “both smoked marijuana and oral
THC were effective.” 

According to The Leaf, another assistant U.S. attorney,
Gregory Broderick, “stumbled badly” while cross-examining Columbia
neuropsychopharmacologist Carl Hart. Trying to highlight
marijuana’s potential for abuse, Broderick cited an estimate, based
on data from the National Comorbidity Survey, that 9 percent of
cannabis consumers qualify for a diagnosis of “substance
dependence” at some point in their lives, based on the criteria
laid out in the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental
Disorders (DSM). Hart noted that the latest
edition of the DSM says tolerance and withdrawal—two
indicators of what the DSM now calls “substance use
disorders”—are “normal symptoms to be expected of legitimate
medical cannabis use.” That point “appeared to stun Broderick,”
The Leaf
says.

Hart also might have noted that the
study from which Broderick drew the estimated addiction rate
for marijuana found that the rates for cocaine and heroin were
substantially higher. Yet cocaine and morphine (which is what
heroin becomes after injection) are both in Schedule II, which
means they supposedly have a lower potential for abuse than
marijuana.

The problem is that key terms in the CSA are undefined, leaving
the DEA with a
great deal of discretion in applying them. If you define
“potential for abuse” based on a drug’s appeal to recreational
consumers (all of whom are, from the DEA’s perspective, drug
abusers), putting marijuana higher on the list than oxycodone makes
sense, because it’s a lot more popular. If you define “accepted
medical use” as approval by the Food and Drug Administration (or
completion of all the research that would be necessary for FDA
approval), it follows that marijuana (as opposed to synthetic THC)
is not an accepted medicine, which may also imply that it lacks
“accepted safety for use…under medical supervision,” especially
if you consider the risk of recreational use (a.k.a. “abuse”) an
intolerable danger. The DEA does not have to define these terms in
a way tailored to keeping marijuana in Schedule I, but so far the
courts have said it can.