For six years, the Drug Enforcement Administration had tried to smother a formal petition to remove marijuana from its status as a Schedule I drug under the Controlled Substances Act (CSA) -- one with high toxicity, high abuse potential, and no approved medical use. But in a sudden burst of administrative activity, conveniently preceding Wednesday's Supreme Court medical marijuana oral arguments by less than a week, the agency last week formally denied the petition submitted by Jon Gettman and High Times magazine in July, 1995.
The novel administrative tactic, which would, for CSA purposes, make marijuana roughly the equivalent of valium, could potentially alter the drug war's terrain with a bureaucrat's signature. After years of being ignored and stalled, Gettman and High Times got the administrative equivalent of the bum's rush from the DEA last week.
"They didn't even give us the opportunity for a hearing," Roberto Rionda told DRCNet. Rionda, an attorney with the New York law office of Michael Kennedy, which handled the case, added, "We were informed by a seven-page letter, with 32 pages of Department of Health and Human Services (HHS) findings to back up their conclusions."
Rionda questioned the timing of the decision. "They wanted to influence the Supreme Court, that's why they ruled now," he said. The DEA's decision was a calculated effort to strengthen the government's case with its reasoning in the denying the petition, he said.
A press release from the Kennedy law office added that, "This tactic poses a great danger to ill patients who rely on medical marijuana because the Supreme Court's decision may be influenced by the flawed conclusions of the DEA."
In denying the petition, the DEA found that marijuana has a high abuse potential -- similar to heroin or cocaine -- and that even if it did not have a high toxicity or abuse potential, it had no accepted medical use and must therefore remain in Schedule I.
Confronted with plentiful evidence of marijuana's relatively low dependency levels and practically nonexistent toxicity, the agency grew expansive in defining the plant's substance abuse potential. Arguing that other factors, such as "failure to fulfill major obligations at work or school, physical risk-taking, or even substance-related legal problems, are indicative of a substance's abuse potential, the agency attempted to make the case that marijuana's potential for abuse merited its inclusion in the same category as heroin, methamphetamine, and ecstasy.
Among the DEA's indicators of high abuse potential was broad use, which, when combined with the DEA's official position that any use of an illegal drug constitutes "drug abuse," leads to the Kafkaesque tautology that because marijuana use is illegal it constitutes abuse, and because it is therefore widely abused it must remain illegal.
Again departing from consensus reality, the DEA continued to maintain that marijuana had no approved medical uses. It ignored the fact that eight states have embraced marijuana as medicine at the ballot box, and it ignored the government-sponsored Institute of Medicine study that charted marijuana's medical uses.
Gettman, High Times, and their lawyers aren't buying that logic, nor are they giving up the fight. "We have 30 days to appeal to the US District of Columbia Circuit Court, and we will absolutely file before that deadline," Rionda told DRCNet.