Tech + Health

11.04.14 11:16 AM ET

Judge Could Smash Marijuana Law

A judge in California is examining the legality of America’s marijuana laws, she may be on the verge of throwing the entire system into chaos.

Three states, one district, and two cities will vote on various aspects of the nation’s drug laws on Tuesday but the most crucial marijuana decision being weighed in the coming days will be made by just one person. U.S. District Judge Kimberly J. Mueller could be about to start a legal revolution.

After a five-day hearing in California, she is considering the validity of the science surrounding pot’s classification as one of the most dangerous drugs in the world.

In May, she became the first judge in decades to agree to hear evidence relating to the Drug Enforcement Administration’s classification of marijuana which puts it in the same category as heroin and meth. Over the next few weeks, Mueller will comb through hundreds of pages of witness testimony, scientific research, and public health policy to determine whether the Schedule I Substance classification of marijuana is unconstitutional.

Her ruling will only apply in the specific case she is hearing, but some argue that a first judicial ruling against the legality of the DEA’s current drug classifications would invite a flood of similar legal challenges all over the country.

The case in question concerns six men who were charged with growing marijuana on national forest land. It dates back to three police raids in the Northern California town of Hayfork on October 3, 2011 conducted by two local narcotic task forces in tandem with the United State Forest Service (USFS) and California Highway Patrol (CHP). They confirmed what the agents had been suspecting for years: there was a massive grow operation hidden in the depths of the Shasta-Trinity National Forest.

Over the course of several days, police arrested 15 suspects and uncovered more than 500 marijuana plants, 1,000 pounds of processed cannabis, eight firearms, and more than $35,000 in cash. Brian Pickard and Bryan Schweder, the two owners of the land, were pinpointed as the leaders of the operation, according to witness testimony and law enforcement officers.

Facing a variety of drug charges ranging from possession of marijuana to cultivation, the men face upwards of 10-15 years in prison. Nothing especially unusual thus far, but then the defense counsel argued that such tough legal sanctions should never have applied to marijuana in the first place.

Much to everyone’s surprise, Mueller agreed to grant an evidentiary hearing on marijuana’s classification.

Her decision was based on a tiny footnote written by U.S. Supreme Court Justice John Stevens in 2005. In the medical marijuana case of Gonzalez v. Raich, he wrote: “We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I,” it reads. “Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction.”

Mueller said that was enough to justify a hearing. ““[T]here is new scientific and medical information raising contested issues of fact regarding whether the continued inclusion of marijuana as a Schedule I controlled substance ... passes constitutional muster,” she said, at the time of the decision.

A five-day hearing ended on Friday after evidence from doctors and scientists who argued over the science behind marijuana use in the U.S. The debate itself centers on the DEA’s classification of marijuana as a Schedule I Substance—which by definition implies that it has “no currently accepted medical use” and a “high potential for abuse.” With 23 states where medical marijuana is legal and two where it is recreationally as well, a growing chorus of voices deem the classification a relic of the war on drugs.

With this hearing, the long discussions held among drug policy experts, doctors, and politicians were finally given their day in court.

Dr. Gregory Carter, who discovered the effectiveness of treating ALS with marijuana, was one of the first to testify. In a grueling two-hour questioning, Carter provided testimony as to why the drug can be useful in pain management. The government, led by Attorney Gregory Broderick, challenged Carter’s connection to the drug asking if he had smoked it himself. Carter, who responded that he had gone to “college in California in the 70s,” and went on to say that he hadn’t done it in 25 years—but that he would if he had ALS.

Dr. Carl T. Hart, an associate professor of psychology and psychiatry at Columbia University and a trailblazing researcher on the effects of drugs on humans, spoke on day two. “[I]t is my considered opinion that including marijuana in Schedule I of the Controlled Substances Act is counter to all the scientific evidence in a society that uses and values empirical evidence,” Dr. Hart said. “After two decades of intense scientific inquiry in this area, it has become apparent the current scheduling of cannabis has no footing in the realities of science and neurobiology.”

Other evidence for the defense was provided from Marine Sgt. Ryan Begin, an Iraq war veteran, Jennie Stormes the mother of a child with pediatric epilepsy, and James Nolan, PhD an associate professor of sociology and anthropology at West Virginia University and a former crime analyst for the US Federal Bureau of Investigation.

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The prosecution called just one witness, Dr. Bertha Madras, a Professor of Psychobiology at Harvard Medical School and the former drug czar under George W. Bush. Madras, who endured two days of cross-examination, based her testimony on the claim that marijuana has no accepted medical value.

Madras focused her arguments on the fact that marijuana has not reached the “high standards of proof” necessary to obtain FDA approval—which she says highlights both the lack of clear evidence about its efficacy as well as an accepted method of delivery for the treatment. She also zeroed in on the potentially negative consequences of marijuana use, claiming that it “contains significant amounts of toxic chemicals,” and that there is “no such thing as medical marijuana.”

Paul Armentano, deputy director of NORML served as the principal investigator for Pickard’s defense team and was present for all five days of testimony. “In 2014, most reasonable people would likely argue that any society where 23 states presently acknowledge by statute the therapeutic use of marijuana in certain circumstances, that that alone would qualify as accepted medical use,” he tells me. Given this fact, Armentano believes the feds were left with an “unenviable task” at this hearing: “To convince the court that the earth is flat when the rest of society appropriately has concluded that the earth is round.”

Armentano says the irony is that the case took place just weeks after Attorney General Eric Holder told Katie Couric that the option of rescheduling should be explored. “I think it’s certainly a question that we need to ask ourselves—whether or not marijuana is as serious a drug as in heroin,” Holder said. “The question of whether or not they should be in the same category is something that I think we need to ask ourselves, and use science as the basis for making that determination.”

Now that the hearing is officially over, Justice Mueller needs time to review the hours and hours of testimony, along with the hundreds of pages of relevant scientific material. While her hearing will only be immediately applicable to the defendants in the case, some argue that it may usher era of marijuana regulation.

"It's earth-shattering to even have this hearing," Stetson University College of Law Professor Adam Levine told The Christian Science Monitor. "The fact that the judge is willing to hear this case means she is willing to question if the DEA's original classification is constitutional."

Armentano agrees. “That decision will have national implications. You will see defense attorneys around the country filing similar motions,” he says. “That will perhaps kick open the door to begin the long overdue discussion in the legislative halls of government—where arguably it ought to be taken place in the first place.”