If At First You Don’t Succeed, Try, Try Again!

Originally published at blog.NORML.org

As an attorney, I am always disappointed that the courts in this country – both at the state and federal level – have refused to get involved in the efforts to end marijuana prohibition and end the practice of treating responsible marijuana smokers as criminals. But that is the reality.

While the courts in this country have played a leading role in ending racial discrimination, in guaranteeing women the right to obtain a legal abortion, in protecting the rights of the LGBT community, and in many other areas involving the protection of personal freedom, they have consistently rejected attempts to declare state and federal anti-marijuana laws as unconstitutional.

But that does not mean that we should give up the fight in the courts, and rely only on voter initiatives and elected officials to fix this problem. As long as there are new legal arguments to be made, and fresh and hopefully more convincing facts to be argued, we must continue to engage the courts in this struggle for personal freedom.

Washington, et.al v. Sessions, et.al

One such legal challenge, Washington, et.al v. Sessions, et.al, was recently filed in US District Court in the Southern District of New York by lead attorney Michael Hiller, with NORML Legal Committee (NLC) attorneys David Holland and Joseph Bondy serving as co-counsel. The full complaint can be found here.

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution.

Named as defendants in the case are Attorney General Jeff Beauregard Sessions, Acting Administrator of the DEA Chuck Rosenberg, the Justice Department, the DEA and the Federal Government.

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution.

 Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

Joseph Bondy, a federal criminal defense attorney and legalization advocate, explained he felt it was important to “question the agenda of those who continue to push for enforcement of the CSA, given its unlawful and discriminatory impact and that so few in America support such an effort.” Co-counsel David Holland, a litigator and Executive Director of Empire State NORML, noted that “the efforts to criminalize Cannabis are relatively recent and were largely underwritten by racial and ethnic animus,” referring to recent findings that African Americans and other persons of color are four times as likely to be arrested under the CSA than white Americans, even though marijuana is used equally by people of color and Caucasians.

Perhaps the federal courts will surprise us at long last and finally take a critical look at marijuana prohibition, and find the courage to declare the CSA to be unconstitutional. That would be an enormous step forward in ending marijuana prohibition altogether. But regardless of the outcome of this particular suit, it is encouraging to see the criminal defense bar continue to push the legal envelope, and to advance the best and latest legal and factual arguments. At some point, the courts will have no choice but to strike down prohibition as a violation of our personal freedom.