In the latest phase of a decades-long effort
to win the marijuana wars by using the federal administrative process to
reschedule marijuana from a Schedule I to a Schedule III drug under the
Controlled Substances Act, lawyers for former National Organization for
the Reform of Marijuana Laws (NORML) director Jon Gettman and High Times
magazine are preparing oral arguments before the US Court of Appeals for
the DC Circuit. Attorneys from the law office of New York City-based
Michael Kennedy will argue before the court on March 19. DRCNet has
obtained a copy of their brief.
Although NORML first filed suit against
the Bureau of Narcotics and Dangerous Drugs in 1972, and Gettman, as head
of NORML for part of that time, participated in that lawsuit, its twenty-year
odyssey through bureaucratic purgatory ended in failure. In 1995,
Gettman filed a new petition asking the DEA to to reschedule marijuana
because it did not fit the three criteria required to make it a Schedule
I drug -- high potential for abuse, no accepted medical use, and no safe
means of medical use. After sitting on the petition for two years,
the DEA shuffled the petition off to the Department of Health and Human
Services (HHS) for required evaluation. Three years after that, in
March, 2000, the DEA denied the petition. Gettman and High Times
filed an appeal three weeks later.
In their brief, Gettman's and High Times'
attorneys will ask the court to overturn the DEA denial on five grounds:
-
The DEA determination that marijuana has a
high potential for abuse was without factual support and flawed by its
failure to evaluate marijuana's relative potential for abuse compared to
other drugs.
-
The DEA misinterpreted the Controlled Substances
Act by concluding that even if marijuana did not meet the high abuse potential
criteria, it should still be maintained as a Schedule I drug. But
21 USC 812 (b) (1), the relevant section of the Act, plainly lists that
all three findings are required.
-
The DEA failed to follow the act's requirement
that it consider all eight factors listed in the act in making rescheduling
decisions. In addition to abuse potential and current safe medical
use, those include danger to the public health, current patterns of use,
and its dependence liability.
-
The DEA erred in finding that because marijuana
is not approved by the Federal Drug Administration, it therefore has no
accepted medical use and lacks safe use under medical supervision.
-
The DEA denied the petition without granting
a hearing. After waiting five years for action, Gettman formally
requested a hearing on the proposed findings of HHS. That request
was denied in December, 2000. Three months later, the DEA ruled against
the petition.
Robert Rionda, an attorney with the Kennedy
law office who is working on the case, told DRCNet his clients remain confident
that the court would find in their favor. "It may not be a popular
issue with the court," Rionda told DRCNet, "but the legal arguments are
strong and the court will be hard-pressed to deny our claims, especially
given recent knowledge and the state laws allowing the medical use of marijuana."
Still, Rionda doesn't foresee final victory
anytime soon. "If we win on the issues, the court will remand the
petition back to the DEA and order it to do a proper evaluation.
Then they will attempt to find other reasons not to reschedule," Rionda
said. "They will be bogus, but then they could try to stretch it
out for another six years."
-- END --
|
Issue #219, 1/11/02
Editorial: A Line in the Sand | New California Bill Would Mandate 90-Day Minimum Jail Term for Being Under Ecstasy's Influence | Agenda for 2002, and DRCNet Monthly Donor Program Update | New Jersey Governor-Elect Calls for Needle Exchange, Cites Battle Against AIDS | Colombia Peace Process Collapses While Second Presidential Candidate Decries Failed Drug Policies | Supreme Court to Hear Public Transit Search Case, Bush Administration Invokes Terror War to Support Drug War Measure | Brazil Joins Ranks of Drug Reform Nations, Users to Avoid Jail Under New Law | Hemp Industry Takes DEA to Court Over Hemp Food Ban, Urges 9th Circuit to Throw Out DEA Interpretative Rule | Gettman-High Times Marijuana Rescheduling Action Heads for Federal Court, Latest Turn in Glacially-Paced Legal Battle | What Drug-Terror Link? Drug Money Not Mentioned as Feds End Investigation of September 11 Finances | Montana Sets Drug Policy Task Force -- No Dopers Need Apply | Internships at DRCNet | Alerts: Ecstasy Bills, HEA Drug Provision, Bolivia, DEA Hemp Ban, Mandatory Minimums, Medical Marijuana | The Reformer's Calendar
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