Photo via PierreDesrosiers
On Wednesday, a group of marijuana policy reform advocates swarmed courtroom 14D of the U.S. District Court for the Southern District of New York in lower Manhattan. So many people came to the hearing that a video live stream aired in a second courtroom two floors below, holding spillage from the crowd.
In a rather entertaining show, Judge Alvin Hellerstein interrogated both Michael Hiller, lead counsel representing a group of plaintiffs challenging the constitutionality of federal marijuana prohibition, as well as assistant U.S. Attorney Samuel Dolinger, arguing on behalf of the government's motion to dismiss the case — Washington, et.al v. Sessions et.al.
The case involves a diverse group of plaintiffs, for whom Hiller and co-counsel Joseph Bondy, Lauren Rudick, and David Holland argue that marijuana prohibition infringes on their constitutional rights. The plaintiffs include Alexis Bortell, a 12-year-old girl with epilepsy who's been seizure-free since moving to Colorado to use medical marijuana; Jagger Cotte, a seven-year-old boy with Leigh's Disease who's lived twice as long as doctors predicted he would, thanks to medical marijuana; Jose Belen, a veteran who treats his PTSD with cannabis; Marvin Washington, a former pro-football player who's launched a line of CBD products; and the Cannabis Cultural Association, a nonprofit that helps people of color get into the cannabis industry.
Despite Dolinger's attempt to argue that marijuana should remain a Schedule I drug based on precedent set by other courts, Judge Hellerstein said that without question, the plaintiffs are living proof of the medical efficacy of marijuana — but that still wasn't enough to bring him to a decision on the case Wednesday. It seemed the greatest issue was not the philosophical issue of whether cannabis is an effective medicine, but whether arguing through the courts, rather than petitioning the U.S. Drug Enforcement Agency (DEA), is the correct legal avenue to challenge federal cannabis policy.
According to Hiller, the Controlled Substances Act (CSA) makes no sense. For a drug to be classified as Schedule I, it must meet the requirements of having no medical efficacy, having a high potential for abuse, and being so dangerous the it can't be tested even under strict medical supervision. Hiller and his co-counsel argue that marijuana prohibition infringes on the plaintiffs' right to travel, the right to use life-saving medicine for the preservation of health and life, and the right to due process, among other Constitutional rights, such as to be free from Congressional overreach.
"This is not just a case about cannabis, it's a case about human rights and human dignity," Hiller tells MERRY JANE. "People should have the right to use medication that preserves their health and their lives without interference of the government. If medication is preserving Alexis Bortell's life, why isn't the federal government bending over backwards to make that drug available?"
If the federal government actually believed that cannabis were as dangerous as its Schedule I status suggests, then it makes no sense for them to have a patent on cannabis for the treatment of diseases like Parkinson's or Alzheimer's, to send joints to patients as part of an Investigational New Drug Program, and to issue a FinCEN guidance through the Department of Treasury advising banks on how to work with cannabis businesses, Hiller and his team argue.
Nonetheless, Dolinger argued that a "ruling on exhaustion would dispose of all the claims in this case" — meaning that because attempts to challenge marijuana policy had failed before, all pathways to reform have been exhausted. While the judge asked why the plaintiffs haven't tried petitioning the DEA to reclassify cannabis, Hiller argued that the process is too lengthy — plaintiffs like Bortell and Cotte would literally not be able to live through the time it would take for such a petition to even make any headway, let alone whatever time it would take to get rejected or approved.
Nonetheless, Hellerstein, who was sympathetic to Hiller's arguments (and seemed to agree with many of them), also held that a district court may not be the proper place to challenge how the DEA schedules marijuana, which would include assessing whatever dangers cannabis might pose. "An agency is set up to weigh all things you want me to do," he said. "I think the right thing to do is to defer to the agency."
While the complaint was filed against Jeff Sessions, et al, it's no surprise the attorney general did not show up to court. Nonetheless, co-plaintiff Jose Belen says that if he ever had the opportunity to converse with Sessions, he "would look him dead in the eyes and tell him, 'You're wrong and you know you're wrong because right now if I got into a pharmacy and take the meds that are legal, they'll push me closer to suicide, to my mood swings, and my nightmares." The fact that Sessions himself is a veteran makes his staunch position against marijuana all the more hurtful, Belen adds.
Still, the judge has not arrived at a decision yet. "Regardless of the ruling, in my eyes we won," says Belen, who was at the hearing. "The sheer fact that we were given the attention we received, it was a win. We are now one step closer to hope and victory." It's likely the case will appear in the U.S. Court of Appeals for Second Circuit, and then potentially the U.S. Supreme Court. "This is a dry run for what will come next," says Belen. "We are not going to stop."