U.S. judge in California keeps marijuana listed among most dangerous drugs

[Little Tich]

Source: Yahoo News / Reuters

(Reuters) - A federal judge in California declined on Wednesday to remove marijuana from the federal list of most dangerous narcotics, rejecting a closely watched request from people accused of illegally growing pot, prosecutors said.

Marijuana activists had been encouraged when U.S. District Judge Kimberly Mueller considered arguments for reclassifying marijuana during a five-day evidentiary hearing last year. Pot is listed by the U.S. government as a so-called Schedule One drug along with narcotics such as heroin.

It is believed no other federal judge in a criminal case in at least four decades had agreed to rule on whether marijuana was improperly classified as a Schedule One drug under a 1970 law.

At a hearing on Wednesday in Sacramento, Mueller said she had kept an open mind before deciding not to reclassify the drug, said Lauren Horwood, a spokeswoman for the U.S. Attorney's Office.




Read more: http://news.yahoo.com/u-judge-california-keeps-marijuana-listed-among-most-214915204.html

[MindMover]

1. Ignorance is no excuse ...

There is more than ample scientific evidence refuting her decision, apparently she did not read them, and kept to the old party line... anyone want to venture a guess as to which party ?????

[FrodosPet]

6. Could be either party

Some Dems are prohibitionists, and some Repubs are pro legalization.

[RKP5637]

2. What an utterly stupid, ignorant and uninformed moronic decision! n/t

[happyslug]

5. How? all the Judge ruled was it is CONGRESS that makes the laws...

Courts can interpret the law, they can rule a law unconstitutional if it violates the Constitution, but the Courts can NOT change a law they dislike but does NOT violate the US Constitution. You may think that Marijuana should NOT be a Schedule 1 drug, but under the Constitution that decision is up to Congress to make not the courts. Thus this decision reflects the law of the land and shows that the Judge knows the law, is NOT ignorant of the law and is informed about the law. That you may think Marijuana should NOT be a Schedule 1 drug for that is "utterly stupid, ignorant and uninformed moronic decision" but such a decision is to be made by CONGRESS not the courts. Congress has made "utterly stupid, ignorant and uninformed moronic decisions"in the past and will do so in the future, but when the courts rule that is a power reserved to Congress, such a ruling, like the ruling in this case is NOT a "utterly stupid, ignorant and uninformed moronic decision" it is a decision based on the Constitution and the laws of the US.

[Larry Engels]

7. You got that wrong.

The Controlled Substances Act of 1970...created five Schedules (classifications), with varying qualifications for a substance to be included in each. Two federal agencies, the Drug Enforcement Administration and the Food and Drug Administration, determine which substances are added to or removed from the various schedules.

https://en.wikipedia.org/wiki/Controlled_Substances_Act

[happyslug]

9. You should read your cite..

Last edited Wed Apr 15, 2015, 11:54 PM - Edit history (1)

When Congress set up the present drug law in the early 1970s, it made the schedules AND the added a section saying what was in each section AND that the Drug Enforcement Agency may ADD to each schedule.

Here is the ACTUAL STATUTE that clearly shows " Marihuana" are a Schedule I drug, See § 821 (c) (c)(10):

https://www.law.cornell.edu/uscode/text/21/812#b_1

The general rule of law is a regulatory agency, like the Drug Enforcement Agency (DEA) can ADD to a list made by Congress, but can NOT delete what Congress put into the Statute. WIKIPEDIA Site uses the term Cannabis for Marijuana but the actual DEA regulations, still uses the term MARIHUANA. See Title 21, CFR Part 1308.11 Schedule 1, (c)(23).

http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308_11.htm

Thus Marijuana is on Schedule 1, by an act of Congress and only an Act of Congress can get it off that list. The DEA has SOME flexibility to move drugs to other schedules, but the issue will come down to that when Congress first came up with the list of Schedule 1 drugs, marijuana was in that list AND is still on that list as it is Codified at the US Code.

Now there is an implication that the DEA can reclassify a drug if the DEA finds it no longer fit the Schedule it was in. This appears to be within the power of the DEA, but it is a power the courts will defer to the DEA. The courts have a long history of deferring to regulatory agencies when it comes to that agencies regulations. Thus the Courts will NOT even question what the Court finds is within the expertise of the regulatory agency and under the Controlled Substance Act, the classification of any drugs is within the power of the DEA. In simple terms the DEA MAY have the power to Reclassify, but if the DEA does so or does not do so is within the power of the DEA and the Courts will uphold whatever the DEA does.

[jmowreader]

13. They call it "marihuana" for historical reasons

The original statutes called cannabis "marihuana." They claim if they change the name in the statutes it would screw up some prosecutions, and they probably have a point.

[RKP5637]

11. Excellent point! Well taken! n/t

[happyslug]

3. The Written opinion will NOT be out till Friday

Last edited Thu Apr 16, 2015, 12:03 AM - Edit history (1)

In this case, the federal government charged 16 persons in Sacramento federal court with a single charge of conspiracy to grow 1,000 or more marijuana plants between Feb 2008 and October 2011 in Trinity and Tehama counties. 1,000 plants is the magic number that makes the minimum sentence (with a couple of small exceptions) upon conviction 10 years in prison; 100 or more marijuana plants nets at least 5 years in prison. (Even with good time, federal defendants must serve a minimum of 85% of their sentence). A conspiracy under federal law is just an agreement between two or more persons to commit a crime. So each of the 16 persons here are charged with agreeing with the others to grow at least 1,000 or marijuana plants. The Indictment with the charges was filed in 2011....

One of the defendants, Brian Pickard, filed a motion to dismiss the marijuana conspiracy charge, primarily on the ground that the federal classification of marijuana as a Schedule I controlled substance is unconstitutional. A Schedule I controlled substance is one that is prohibited for all purposes--and cannot even be prescribed by a physician for medical purposes without violating federal law.

The motion to dismiss includes two other alternative grounds for asking that the marijuana charges be dismissed: (1) that the government's unequal enforcement of marijuana (and medical marijuana) violates the Equal Sovereignty Principle in the Constitution; and (2) that a December 2014 amendment to the federal budget--Amendment 538--bars the federal government from spending money to prosecute medical marijuana cases that would be legal under specified state laws. That's a very quick overview, I may have missed more arguments. All briefs and supporting evidence have been previously posted on my blog here

http://edca.typepad.com/eastern_district_of_calif/schweder-marijuana-case/

The District Court web site:

http://www.caed.uscourts.gov/caednew/

In simple terms the Judge did hear the argument about Marijuana but then ruled that the issue that it is a Schedule I drug is something up to CONGRESS to determine. If Congress wants to make Aspirin a Schedule 1 drug, Congress can do it for it is NOT a violation of the concept of dual sovereignty, i.e. the Federal Government and each State Government are equal except in areas where it is clearly within the power of the Federal Government or the State Government. The fact that California has made medical marijuana legal has NO effect on the Federal Government's right to make it illegal.

Given the concept of Federal Supremacy, this argument was weak to begin with. That the Judge actually held a hearing on the FACTUAL argument is surprising. On the other hand, her ruling that all of it makes no difference, for under the US Constitution it is CONGRESS that decides what is the law. The Courts can only strike down a law if it violates the US Constitution, the only constitutional clause that comes into play is the concept equal sovereignty, but that concept does NOT prohibit the Federal Government making something illegal, that a state has made legal. Thus her ruling.

Please Note, the Controlled Substance Act does give the DEA the power to reclassify drugs. The First issue does such grant of power from Congress permit the DEA to undo what Congress did when Congress wrote the first list of Schedule I drugs and included Marijuana is that list? The General rule of law is a Regulatory agency can NOT undo what Congress has done, but the statute says the DEA can reclassify and remove drugs from the Schedules.

The Second Issue is the Judicial Rule that the Court MUST defer to regulatory agencies when it comes to how they issue and interpret they own regulations. Thus the Courts MUST defer to the Agency's expertise as to what power Congress gave the Agency AND what that power is. In this case it is up the the DEA to do any reclassification and if the DEA decided to do so, or NOT do so, the courts will defer to the expertise of the DEA. You can disagree with that rule, but it is rule the Courts MUST follow and in this case what is the correct schedule for any drug is within the sole power of the DEA. i.e whatever the DEA does the courts will tend to uphold.

https://en.wikipedia.org/wiki/Removal_of_cannabis_from_Schedule_I_of_the_Controlled_Substances_Act

[lordsummerisle]

4. I didn't know a federal judge could just do this

I've read discussions on here about whether the executive could do this (reclassify marijuana) with the stroke of a pen or if it would have to come from Congress.
In addition I've heard that a few states bordering Colorado are going to the SCOTUS about how folks are buying pot in Colorado and bringing it to their states which is increasing the work load for their law enforcement, and it's illegal on the federal level anyway.

[Larry Engels]

8. The FDA and DEA decide what goes on the list.

They are regulatory agencies appointed by President Obama.

[happyslug]

10. That is a debatable point..

The Underlying Statute, the Federal Controlled Substance Act, clearly list Marihuana (the Spelling in the Act) as a Schedule 1 drug, but then gave the DEA the power to add or subtract drugs from that list. The issue will be, does the power to subtract INCLUDE the initial list made by Congress, or does such drugs need to be delisted by amending the Controlled Substance Act? In normal regulatory law the rule is you can NOT undo what Congress has done in a Statute by regulation. i.e. if Congress said something, the regulations MUST follow what Congress did.

On the other hand the Controlled Substance Act does PERMIT drugs to be "Rescheduled" and on that language attempts have been made since 1972 to do just that. For more details see:

https://en.wikipedia.org/wiki/Removal_of_cannabis_from_Schedule_I_of_the_Controlled_Substances_Act

Another factor in this argument is the Federal Judicial Rule when reviewing regulations to defer to the regulatory agency when it comes to any regulations they issue. So far the agencies involved have REFUSED to do such a reschedule and given the Courts tendency to defer to such regulatory agencies, the courts will uphold what the agency does (and this can cut both ways, the DEA could reclassify Marijuana even if courts rules the DEA did not have to, it is up to the regulatory agency).

Thus technically the agencies can place Marijuana into a different schedule, and the courts will generally uphold such a change in the regulations, but that also means if the Agencies do NOT change the schedule of Marijuana, the courts will also uphold such a ruling. The only objection would be the fact Marihuana was listed in the Statute passed by Congress, and can the DEA reclassify what Congress set up in 1972?

[nolabels]

12. It's a make work program for cops and a profit program for others

A lot of people benefit with the way things are concerning marijuana.

When that changes the laws will change, it's not rocket science

[reddread]

14. the only thing sweeter than child slave labor

is prison labor, subsidized by the tax payer.