Is the Federal Marijuana Ban Unconstitutional?

One Judge is Considering that Question Now

In a case that could deal a benchslap to the government’s war on pot, a court in California last week held a rare hearing on whether the 44-year-old federal ban on marijuana complies with the Constitution. Lawyers mounting the challenge argue it’s irrational to enforce a law so thoroughly defeated by science. After a five-day “battle of the experts” over marijuana’s status as one of the nation’s most dangerous drugs, it’ll soon be up to a federal judge to declare a winner.

The unusual move by Judge Kimberly Mueller of the district court in Sacramento to grant an evidentiary hearing marks the first time in decades the federal pot prohibition is up for judicial review, experts say. The hearing forces the government to justify its regulation of marijuana on Schedule I of the Controlled Substances Act alongside drugs like ecstasy, LSD and heroin.

“Judges routinely deny these evidentiary motions,” Keith Stroup, founder of the National Organization for the Reform of Marijuana Laws, or NORML, told me. “So the fact that there’s even a little break in the consistent refusal of courts to consider the constitutionality of drug laws is significant.”

On first glance, the legal burden the government must carry seems relatively light: U.S. attorneys need only show there’s a rational basis for the law. But during last week’s hearing expert witnesses in support of the constitutional challenge ensured the government’s job won’t be easy. To prevail, the government must persuade Judge Mueller that pot poses a high potential for abuse and has no currently accepted medical use, in spite of decades of contradictory or inconsistent evidence.

The five-day hearing saw lawyers and experts wrestle over everything from the efficacy of marijuana in treating chronic pain and traumatic brain injury, to the rate of dependence of cannabis users, the empirical quality of pot research, and even the definition of what constitutes “medicine,” according to reporter and Harvard Law grad Jeremy Daw, who covered the hearing for the pro-pot blog The Leaf Online. Judge Mueller’s decision could come as early as next month unless it’s delayed by a request for additional briefings from the parties, Daw reported.

Among the experts supporting the challenge were Dr. Carl Hart and Dr. Phillip Denney. The lone expert witness for the government was former deputy drug czar Bertha Madras. Witnesses submitted hundreds of pages of findings and sat for direct testimony and cross-emanation before Judge Mueller.

Before it became a constitutional showdown, the case of U.S. v. Schweder began in the lush forestland of Northern California’s Trinity County. In October 2011, police searched Brian Schweder’s Hayfork, Calif., residence located at 420 Highway 3. Law enforcement seized roughly 1,800 marijuana plants in a series of raids. Schweder and 15 others were indicted for conspiracy to manufacture marijuana under the Controlled Substances Act.

Defense counsel and NORML attorney Zenia Gilg would later use to case to launch the constitutional assault.

Reactions to Judge Mueller’s decision hear the evidence on marijuana’s federal status got mixed reactions from law reformers. NORML founder Stroup said he was heartened to see a federal judge taking the issue seriously, but acknowledged that a favorable ruling at the trial level would be largely symbolic unless it was upheld on appeal.

His colleague at NORML, Deputy Director Paul Armentano, expressed disappointment that it had fallen to federal courts instead of Congress to parse the scientific evidence and reexamine the legislation.