CALIFORNIA POLITICS

Is pot as bad as LSD? Heroin? Judge to rule on 1970 law

A Sacramento federal judge prepares to decide whether to downgrade marijuana, but ruling's reach is limited

In a rare examination of federal marijuana law, a U.S. judge in Northern California has decided to rule on the constitutionality of a 1970 act that classifies marijuana as a dangerous drug akin to LSD and heroin.

U.S. District Judge Kimberly J. Mueller took the extraordinary step of holding a five-day hearing on the question late last year, with final arguments scheduled for next month. Her ruling, based on testimony and thousands of pages of briefs, exhibits and declarations, is expected later this year.

Lawyers say the case out of Sacramento marks the first time in decades that a judge has agreed to hold a fact-finding hearing on the classification of marijuana as a Schedule 1 drug under the 1970 Controlled Substances Act. Mueller’s decision came in response to a pretrial defense motion in a prosecution brought by the federal government against alleged marijuana growers.

Attorneys for the defendants have argued that the federal marijuana law violates the Constitution's guarantee of equal protection under the law and a doctrine that gives states equal sovereignty. In addition to maintaining that marijuana is safer than many non-regulated substances, the defense contends the federal government enforces marijuana law unevenly, allowing distribution of cannabis in states where it is legal and regulated by state law and cracking down elsewhere.

Prosecutors, who unsuccessfully opposed the fact-finding hearing, have countered that Congress legally placed marijuana in Schedule 1, a classification used for drugs that have no medicinal purpose, are unsafe even under medical supervision and contain a high potential for abuse. In addition to marijuana, heroin and LSD, other Schedule 1 drugs include Ecstasy and Mescaline. Because of marijuana's Schedule 1 status, federal restrictions make it difficult for researchers to obtain legal cannabis for study.

Zenia K. Gilg, a lawyer for the growers, said scientific understanding and public acceptance of marijuana have grown substantially since courts last examined the federal classification. She cited the November election, when voters in Alaska and Oregon decided to join Colorado and Washington in making cannabis legal for recreational use. Most states already provide some legal protection for its use as medicine.

"It just shows that this country has recognized that marijuana is less harmful than, I would say, alcohol, and the law prohibiting it is absurd, particularly as it related to being up there with heroin and LSD," said Gilg, a member of the National Organization for the Reform of Marijuana Laws.

She and other lawyers also have pointed to a provision in a spending bill signed by President Obama in December that bars the Department of Justice from funding actions that prevent states from enforcing their own laws on medicinal marijuana. Lawyers for the growers questioned in court documents how Congress could justify a law that says marijuana has no medicinal value while demanding that its distribution be free of federal interference.

But legal analysts said the court challenge remains a long shot. Efforts to remove marijuana from Schedule 1 have consistently failed. A ruling against federal marijuana law would apply only to the defendants in the case and almost certainly would be appealed. If the U.S. 9th Circuit Court of Appeals determined the law was unconstitutional, all the Western states would be affected.

Prosecutors said in a brief filed Wednesday that the evidence presented in the hearing at most "established that there is some dispute among doctors as to whether marijuana is medicine."

Mueller, a Clinton appointee, has given few indications of how she might rule. Lawyers said the fact that she agreed to hold a fact-finding hearing was itself a victory for marijuana activists.

Despite the possible consequences and rarity of such a hearing, the challenge has received little public attention. A lawyer who writes a blog for the federal court's Eastern District of California posted links to daily coverage of the testimony by theleafonline.com, a digital newspaper for "the cannabis community." Reports by the pro-marijuana website portrayed the prosecution as having faltered.

Alex Kreit, a Thomas Jefferson School of Law professor who specializes in drug issues, said a ruling overturning the federal classification of marijuana would be a "surprise at the least."

"But the fact that there was a hearing tells me there is some chance of this succeeding," Kreit said. "It is just exceedingly unlikely that a federal judge would set aside several days for a hearing on a question they thought was open and shut."

Santa Clara University Law Professor Gerald Uelmen, who has defended medical marijuana defendants, also expressed surprise that a judge agreed to hold an evidentiary hearing on the question. He said courts have routinely ruled against such challenges.

Marijuana activists noted that federal judges, appointed for life, often take bold stands. They point to a decision by an Orange County federal judge last summer declaring California's death penalty system unconstitutional. The jurist's ruling is now on appeal. A federal district judge's ruling also led to the demise of California's ban on same-sex marriage. Even if the defendants in Sacramento lose, a ruling that was critical of the government's classification of marijuana could become ammunition for future battles.

During the October hearing, witnesses for the defense testified that marijuana has many medical benefits and less potential for harm than alcohol, tobacco and many prescription drugs. Declarations by defense witnesses said anti-marijuana laws were spurred by racism and that marijuana law continues to be enforced disproportionately against African Americans.

An expert for the prosecution testified that marijuana use as a teenager has been linked to cognitive changes and that cannabis is associated with psychotic disorders.

In written arguments summarizing the hearing, the defense said the "critical inquiry" for the court was whether marijuana has any medical benefits.

"The evidence is overwhelming and irrefutable, cannabis has remarkable medicinal qualities which have been known and applied throughout history," Gilg and co-counsel Heather L. Burke wrote for the defendants.

The prosecution, citing 40 years of court rulings, countered that the law must be upheld as long as it has some justification. The only question before the court is whether the Controlled Substances Act was a rational means of addressing a legitimate government interest, the prosecution said.

"In 2013 alone, more than 29,000 people checked themselves in for marijuana substance abuse treatment just in California, and more than half of them were teenagers," Assistant U.S. Atty. Gregory T. Broderick said in the brief filed Wednesday. "Given the state of the science, it is clear that treating marijuana as a controlled substance is rationally related to legitimate public health objectives."

maura.dolan@latimes.com

Twitter: @mauradolan

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