Supreme Court Considering Groundbreaking Cannabis Criminalization Case

by Rachelle Gordon

This week, the fight for cannabis reform heads to the United States Supreme Court. Plaintiffs in the case Washington v. Barr, which includes former NFL player and cannabis business owner Marvin Washington as well as pediatric cannabis patient and advocate Alexis Bortell, argue the Schedule I classification of cannabis is unconstitutional. The Supreme Court is expected to make a decision whether to proceed with the case in a conference this Friday, October 9.

Washington v. Barr has received a massive outpouring of support from drug policy reform organizations, researchers, and members of Congress including Representatives Tulsi Gabbard (D-Hawaii), Barbara Lee (D-TX), Jamie Raskin (D-MD), and Earl Blumenauer (D-OR), whose office issued a press release compelling the high court to consider the case. An unprecedented nine amicus briefs have been filed in support of the plaintiffs.

If the Supreme Court decides to take on the case, a win would mean the cannabis plant would be removed from Schedule I of the Federal Controlled Substances Act (CSA), opening the floodgates for medical research, interstate commerce, and, most importantly according to the plaintiffs, patient access.

Deprivation of Constitutional Rights Key To Case

Attorneys with the firm Hiller, PC, who are representing the plaintiffs, list several instances of constitutional injury directly caused by cannabis being listed as a Schedule I substance, stating their clients’ rights have been infringed upon. Examples include the denial of access to cannabis as a life-saving medicine for patient plaintiffs, inability to travel and perform civic duties if in possession of said medicine, denial of Veterans Affairs benefits due to medical cannabis use, and encroachment upon States’ rights.

They also point to statistics showing the criminalization of cannabis has unfairly targeted people of color and that the Schedule I designation has proven to be “rooted in racial animus and the desire to suppress political rights, as opposed to public safety,” according to Lauren Rudick, partner at Hiller, PC.

“In one fell swoop, the court has a huge opportunity to address patient rights and social justice, while protecting States’ rights, in a way that’s never before been possible,” Rudick told Green Flower.

“The Controlled Substances Act is enforced disproportionately against people of color,” she continued. “Blacks are four times more likely to be prosecuted for a cannabis crime than white persons, even though Blacks and whites use cannabis in equal measure. In view of the Black Lives Matter movement, being able to address the equal protection issues associated with the unconstitutional classification of cannabis and the disproportionate enforcement of the CSA against people of color has never been more timely.” 

Hypocrisy Highlights Need To De-Schedule

The plaintiffs also claim the federal government has already shown the Schedule I classification of cannabis to be incorrect based on its own actions toward the plant. According to the Drug Enforcement Agency (DEA), Schedule I substances “are defined as drugs with no currently accepted medical use and a high potential for abuse.” This is directly contradicted, allege the plaintiffs, by the fact that, among other things, the U.S. government has been distributing medical cannabis to patients since the late 1960s through the National Institute on Drug Abuse program. 

Additionally, the federal government holds utility patents on cannabinoids naturally occurring in the cannabis plant, while guidance issued by the U.S. Treasury Department instructs financial institutions on how to bank cannabis operations.

“On the one hand, the government is saying that cannabis has no medical purpose, but on the other hand, they’re distributing medical cannabis to medical patients all over the country, and they’ve been doing this for decades,” Rudick said. “They own utility patents, and one of the requirements to obtain a utility patent is a showing that the invention works and is useful.

Lower court rulings previously directed the plaintiffs to plead their case to the DEA.  Other commentators have questioned whether Congress should resolve their dispute through legislation. Rudick argues neither option is appropriate.

“We’re looking to de-schedule (cannabis) on constitutional grounds, and that’s not within the purview of the DEA. And the amicus brief submitted by members of Congress confirms that there is no likely legislative solution.  In any event, Congress isn’t empowered to rewrite its own laws. They don’t fix their own mistakes — our Supreme Court is our guardian of constitutional rights.”

Widespread Acceptance of Cannabis Supersedes Partisanship, According To Plaintiffs

When asked if the absence of the late Supreme Court Justice Ruth Bader Ginsberg, a noted liberal voice on the bench, would have an impact on the outcome of the case, Rudick asserted political leanings should not play a role in this instance.

“We believe that there are enough constitutional issues and injuries at stake and mass confusion associated with the tension between federal and state law, having repercussions across the political spectrum. It really shouldn’t matter what politics any justice aligns with,” she explained. “We’re confident that the justices will see that the court is the appropriate resolution of these issues.”

Rudick and her partners state there is no time like the present for the Supreme Court to hear this historic case, as it represents one issue the majority of the country can agree with.

“Never before have we been living in an environment where we have the vast majority, 94 percent in fact, of Americans who believe in legalizing cannabis in one form or another, whether it be medical or adult-use, and live in a jurisdiction in which some form of cannabis is legal — you can’t get 94 percent of the country right now to agree on anything. Cannabis is unifying.”

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