COMMENT: It’s High Time for the Defense Bar to Bring Race-Based Equal Protection Challenges to Federal Cannabis Scheduling

By Reid Murdoch
Associate Editor, Vol. 20
Online Publications Editor, Vol. 21

Last fall, U.S. District Court Judge Kimberly J. Mueller held a rarely granted evidentiary hearing on the constitutionality of designating cannabis as a Schedule I Controlled Substance.[1] Defendant Brian Pickard, through his attorneys, has moved to dismiss charges of cannabis cultivation in the Eastern District of California.[2] Invoking the doctrine of equal protection, he argues that the current classification scheme, placing cannabis among the most dangerous substances, is so contrary to prevailing scientific understanding as to lack rational basis.[3]

In the past, federal cannabis defendants have been unsuccessful in challenging the Controlled Substances Act (CSA)[4] itself. Mr. Pickard’s case is thus notable as an example of judicial willingness to revisit the question, given the rapidly changing scientific and political landscape surrounding the issue.[5] In this case, the scientific evidence introduced is probably reason enough to invalidate the scheduling scheme, but the applicability of equal protection to this issue is not limited to a rational basis inquiry. Thanks in part to new, comprehensive documentation of nationwide racial disparity in cannabis enforcement,[6] the statute should be subjected to strict scrutiny. This Comment contends that taken together, the impact, application, and legislative history of federal cannabis prohibition provide compelling evidence of a policy that unconstitutionally discriminates against a protected class.

Using Science to Challenge the Rational Basis of Cannabis Scheduling

Schedule I of the CSA, where cannabis is currently listed, is the strictest of five possible regulatory classifications for illicit substances.[7] Schedule I classification places tight limits on the ability of doctors to prescribe a drug, and of scientists to research its medical applications.[8] Not surprisingly, efforts by patients and advocates to remove cannabis from Schedule I are therefore nothing new.

Past unsuccessful challenges by advocates have included petitions to the DEA Administrator,[9] delegated authority by the DOJ to reschedule substances unilaterally.[10] The criminal litigation currently unfolding in Sacramento goes beyond such administrative petitions for rescheduling, in that the Defendant is requesting the statutory provision itself be held illegal.[11] If Judge Mueller finds in favor of the Defendant, as cautiously deemed possible by at least one law professor,[12] the case would likely be appealed to the Ninth Circuit.

As laid out in the original Defendant’s Motion to Dismiss, the scientific evidence available today overwhelmingly cuts against scheduling cannabis at all, let alone its inclusion in Schedule I. The CSA, by its text, requires the following findings before a substance may be placed in the first schedule: “(A) . . . [H]igh potential for abuse. (B) . . . [N]o currently accepted medical use . . . in the United States. (C) . . . [L]ack of accepted safety for use of the drug . . . under medical supervision.”[13] At the time of the Defendant’s filing, twenty-one states and the District of Columbia permitted the distribution of cannabis for medical purposes.[14] Two additional states have since joined this list.[15] Exiting Attorney General Eric Holder himself last year suggested that the scheduling science ought to be revisited.[16]

At the evidentiary hearing in October, the defense put forth a detailed scientific and comparative case for why the current federal cannabis classification is arbitrary and capricious, calling to the stand nationally acclaimed expert Dr. Carl Hart.[17] On conclusion of the hearing, Judge Mueller ordered further briefing, suggesting a continued openness to serious consideration of the Defendant’s challenge.[18]

Further changes in the political and scientific landscape since that time now make it harder than ever for the government to show why cannabis qualifies for Schedule I. In December, Congress protected state medical cannabis programs by eliminating funding for any federal enforcement against those in compliance with state law.[19] This is consistent with an official shift in DOJ policy the year prior (the “Cole memo”).[20] Around the same time, the American Herbal Pharmacopeia added cannabis to its index of known botanical medicines,[21] joining countless institutions and medical experts who have recognized the plant’s efficacy.[22] Most recently, incoming Surgeon General of the United States Vivek Murthy made statements acknowledging medicinal value in cannabis.[23]

After a brief continuance, final arguments in the Pickard case took place on February 11^th].[24]

Elevating the Standard of Review with a Race-Based Equal Protection Claim

Defendants have long argued that the placement of cannabis in Schedule I lacks rational basis.[25] Judge Mueller need not rely, however, on such a deferential standard in order to invalidate 21 U.S.C. § 812(c)(10). The extreme racial element to cannabis prohibition in the United States mandates the application of strict scrutiny to the present classification scheme.[26] Going forward, cannabis defendants should, as a matter of course, include in their pleadings a protected class challenge to prohibition grounded in the doctrine of equal protection.[27]

Equal protection claims alleging racial discrimination need not show an actual racial preference on the face of the law; discriminatory administration is sufficient.[28] Likewise, a law may violate equal protection if its legislative purpose was so rooted in racial bias as to render it inherently discriminatory.[29] Looking at the history and administration of cannabis prohibition in the United States, both indicia of unequal protection are found. As noted in the Pickard pleadings, historical arguments for proscribing cannabis repeatedly and explicitly invoked racial animus.[30] Furthermore, the administration of cannabis prohibition today is so shockingly disproportionate along racial lines that the law cannot be understood as effectively race-neutral.[31]

A statute’s racially disparate impact alone does not violate equal protection.[32] Rather, common sense suggests that most laws will inevitably affect different demographics at different rates. In the case of cannabis prohibition, however, there is now complete empirical data on the scale of disparate enforcement nationwide: the ACLU report lays bare how racial disparity is found in practically every single county in the nation,[33] not just areas considered urban or racialized. This uniquely exhaustive data set becomes even more strongly indicative of racial discrimination in the law once paired with the finding that rates of cannabis violations among Black and white Americans are effectively equal.[34]

In sum, federal cannabis prohibition should be invalidated for violating the constitutional principle of equal protection under the law. This conclusion can be reached independently on either classificatory or racial grounds. By the conditions of the Controlled Substances Act itself, the provision placing cannabis in Schedule I is arbitrary and devoid of scientific basis. Furthermore, and perhaps more importantly for the purpose of judicial review, prohibition today is inherently discriminatory, as evidenced by its strongly racialized impact, administration, and history throughout the United States. Judge Mueller need not rely on the newest science: the law’s racially discriminatory nature is now so apparent that strict scrutiny must be applied.

Citations

[1] E.g., John Balazs, EDCA Schedule I Marijuana Evidentiary Hearing Update, Eastern District of California Blog (Oct. 27, 2014), http://edca.typepad.com/eastern_district_of_calif/2014/10/edca-schedule-i-marijuana-evidentiary-hearing-update.html.

[2] Defendant Brian Pickard’s Notice of Motion and Motion to Dismiss Indictment. Available at http://edca.typepad.com/files/defendants-motion-to-dismiss-and-memo-of-law.pdf.

[3] Id. at 2-3.

[4] Classification of cannabis can be found at 21 U.S.C. § 812(c)(10) (2006) (“Marihuana.”).

[5] See, e.g., Beau Kilmer, Unprecedented Changes in Marijuana Policy: Year in Review 2014, Encyclopaedia Britannica (Jan. 20, 2015), http://www.britannica.com/EBchecked/topic/2014336/Unprecedented-Changes-in-Marijuana-Policy-Year-In-Review-2014.

[6] “The War on Marijuana in Black and White,” American Civil Liberties Union Foundation (June 2013), https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf.

[7] See 21 U.S.C. § 812(b)(1)-(5) (2006).

[8] E.g., Ed Silverman, Pediatricians Urge DEA to Reclassify Medical Marijuana to Boost Resarch, Pharmalot, Wall St. J. (Jan. 26, 2015), http://blogs.wsj.com/pharmalot/2015/01/26/pediatricians-urge-dea-to-reclassify-medical-marijuana-to-boost-research/; The Times Editorial Board, Is marijuana really as dangerous as heroin and LSD? Finally, a welcome legal review, LA Times (Jan. 20, 2015), http://www.latimes.com/opinion/editorials/la-ed-marijuana-schedule-1-20150121-story.html.

[9] See, e.g., Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013).

[10] See Annaliese Smith, Comment, Marijuana as a Schedule I Substance: Political Ploy or Accepted Science?, 40 Santa Clara L. Rev. 1137 (2000) at 1149. This lengthier piece collects the scientific and political history leading up to the current century’s rescheduling debate.

[11] E.g., Jacob Sullum, Criminal Case Reopens the Issue of Marijuana’s Legal Status, Hit & Run Blog, Reason (Oct. 31, 2014), http://reason.com/blog/2014/10/31/criminal-case-reopens-the-issue-of-marij#comment.

[12] Id. But see Alex Kreit, Federal court to hold evidentiary hearing on the constitutionality of marijuana as a Schedule I substance, Marijuana Law, Policy & Reform, Law Professor Blogs Network (Mar. 21, 2014),http://lawprofessors.typepad.com/marijuana_law/2014/03/federal-court-to-hold-evidentiary-hearing-on-the-constitutionality-of-marijuana-as-a-schedule-i-subs.html.

[13] 21 U.S.C. § 812(b)(1) (2006); see also Smith at 1147.

[14] Defendant Brian Pickard’s Notice of Motion and Motion to Dismiss Indictment at 25.

[15] See Medical Marijuana Overview, Marijuana Policy Project, http://www.mpp.org/reports/medical-marijuana-overview.html.

[16] Paul Armentano, Federal Judge to Hold Hearing on Whether Cannabis Should be Removed as a Schedule I Drug, TheJointBlog (Oct. 21, 2014), http://thejointblog.com/federal-judge-hold-hearing-whether-cannabis-removed-schedule-1-drug/.

[17] See, e.g., Jeremy Daw, Federal Prosecutors Appear to Concede Cannabis’ Medical Benefits, The Leaf Online (Oct. 28, 2014), http://theleafonline.com/c/politics/2014/10/federal-prosecutors-appear-concede-cannabis-medical-benefits/. Dr. Hart is an Associate Professor of both Psychiatry and Psychology at Columbia University, and the first tenured African American science professor at that institution. E.g., Tavis Smiley Interview, Neuroscientist Dr. Carl Hart, PBS Video (July 12, 2013), http://video.pbs.org/video/2365045350/.

[18] John Balazs, Further Briefing Ordered in Schweder Marijuana Case, Eastern District of California Blog (Nov. 10, 2014), http://edca.typepad.com/eastern_district_of_calif/2014/11/further-briefing-ordered-in-schweder-marijuana-case.html.

[19] Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538 (2014).

[20] Memorandum for All United States Attorneys, From James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), Office of the Deputy Attorney General, U.S. Department of Justice, http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf, discussed in Reid Murdoch, Regulated Cannabis Markets Open, Institutional Barriers Crumble, JURIST – Dateline (Feb. 2, 2014), http://jurist.org/dateline/2014/02/reid-murdoch-marijuana-legalization.php.

[21] David Downs, American Herbal Pharmacopoeia: ‘Welcome Back, Marijuana!’, SmellTheTruth, SFGate (Dec. 11, 2013), http://blog.sfgate.com/smellthetruth/2013/12/11/american-herbal-pharmacopoeia-welcome-back-marijuana/.

[22] E.g., Sanjay Gupta, Gupta: ‘I am doubling down’ on medical marijuana, CNN (Mar. 6, 2014), http://www.cnn.com/2014/03/05/health/gupta-medical-marijuana/ (Dr. Sanjay Gupta, CNN Chief Medical Correspondent).

[23] New Surgeon General Dr. Vivek Murthy: Measles vaccine is safe and effective, “CBS This Morning” (Feb. 4, 2015, 8:02am), CBS News, http://www.cbsnews.com/videos/new-surgeon-general-dr-vivek-murthy-measles-vaccine-is-safe-and-effective/ (“We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful.”).

[24] John Balazs, Schweder Marijuana Hearing Continued to February 11, 2:30 p.m., Eastern District of California Blog (Jan. 23, 2015), http://edca.typepad.com/eastern_district_of_calif/2015/01/schweder-marijuana-hearing-continued-to-february-11-230-pm.html.

[25] E.g., Smith at 1149-50 (describing United States v. LaFroscia, 354 F. Supp. 1338 (S.D.N.Y. 1973), the first such constitutional challenge in a criminal trial).

[26] See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 228-29 (1995) (holding that strict scrutiny applies to all racial classifications, whether intentions are benign or malicious).

[27] To their credit, Mr. Pickard’s attorneys do raise this additional, race-based equal protection challenge in a footnote, though it does not make up a substantial part of their argument. See Defendant Brian Pickard’s Notice of Motion and Motion to Dismiss Indictment at 10-11, n.16.

[28] Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

[29] Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (“When there is a proof that a discriminatory purpose has been a motivating factor . . . judicial deference is no longer justified.”)

[30] See supra note 25.

[31] For example, nationally, Black Americans are 3.73 times more likely than whites to be arrested for marijuana possession. “The War on Marijuana in Black and White,” American Civil Liberties Union Foundation (June 2013) at 4, https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf.

[32] E.g., Washington v. Davis, 426 U.S. 229 (1976).

[33] Id. (“[I]n over 96% of counties with more than 30,000 people in which at least 2% of the residents are Black, Blacks are arrested at higher rates than whites for marijuana possession.”)

[34] “The War on Marijuana in Black and White,” American Civil Liberties Union Foundation (June 2013) at 21-22, https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf (“Finding #4: Blacks and Whites Use Marijuana at Similar Rates”).