Health & Science

Researchers Target DEA to Remove Pot From Schedule I

By Willis Jacobson Oct 1, 2020
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Willis Jacobson is an award-winning journalist whose career has spanned both coasts. Now based on the Central Coast of California, he has covered cannabis news and issues since 2015.
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Willis Jacobson is an award-winning journalist whose career has spanned both coasts. Now based on the Central Coast of California, he has covered cannabis news and issues since 2015.
See my articles
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A petition asks a federal appeals court to “right a ship that veered off course long ago” by rejecting arguments from the U.S. Drug Enforcement Administration that marijuana has no medical benefits. If successful, the appeal could have a major impact on federal legalization.

The brief (read it here) was filed in the Ninth Circuit Court of Appeals on Sept. 29 on behalf of a group of petitioners that includes Dr. Suzanne Sisley, who has been trying for years to study whether MED benefits veterans with PTSD at her Scottsdale Research Institute in Arizona. 

The 117-page brief was filed in support of previous legal challenges to the DEA’s position that marijuana has no known medical value and therefore should remain a Schedule I drug under the Controlled Substances Act (CSA). The new filing argues that the DEA’s position is not only misguided – evidenced, the filing says, by 34 states having recognized marijuana’s medical value – but that it also contradicts the spirit of the CSA.

The brief provides an exhaustive history of how the DEA has maintained cannabis’ Schedule I status over decades. It accuses the agency of, among other things, hypocrisy for its position that marijuana is a dangerous drug that should be outlawed, while at the same time agreeing to not enforce federal marijuana laws in states with legal markets. 

The petitioners’ attorney Shane Pennington, with the Houston firm Yetter Coleman, said the brief aims to be a comprehensive “one-stop shop” highlighting all the ways the DEA and the federal government has abused its powers related to cannabis.

He related the ongoing situation to the classic “Sword in the Stone” fable, where a sword remained embedded in stone after people tried and failed for years to remove it. Much like that story, he said, many people have stopped challenging the DEA because so many before them have failed.

“We believe that sword can come out of the stone,” Pennington said. “We believe that if a court looks at it carefully and doesn’t just brush us aside – honestly, I don’t think there’s a way that anybody could really dispute the merits of our argument.”

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Technically filed to convince the court to set aside the DEA’s denial of a petition this year from California resident Stephen Zyszkiewicz, who moved to have the agency reclassify marijuana within the CSA, its ultimate motivation is providing further ammunition for re- or de-scheduling marijuana.

Because marijuana is currently under Schedule I, it cannot be used in clinical trials. A lower scheduling would allow for that.

The brief argues two key overarching points: 1) The DEA and federal government don’t have the authority to overrule the 34 states that maintain there are medical uses for marijuana, and 2) It’s unconstitutional for the attorney general to have legislative authority over the scheduling of marijuana related to international treaties. The Justice Department has maintained this position, claiming it’s among the reasons marijuana cannot be removed from the CSA. 

The brief also alleges the DEA is misinterpreting the intent of the CSA, arguing that it was meant to be a drug abuse and prevention statute that allowed for research.

Pennington said when the CSA was approved in 1971, Congress allocated $1M to form a marijuana research commission.

“The way that the DEA has interpreted the CSA has made it better at preventing research than preventing abuse,” he said.

“It’s this really screwed up thing where they’re preventing the research of drugs that people are actually using right here in the states, but they’re also not enforcing the law,” Pennington said of the DEA.

“They’re doing the opposite of what the CSA is for – they’re shutting down research, but then they’re not actually preventing abuse and trafficking,” he added. “It’s just obviously absurd and we’re telling the court that, ‘Look, whatever the Controlled Substances Act was supposed to mean, this is not it.’”

The brief details many of the previous battles involving cannabis and the DEA, including the petition filed by Zyszkiewicz in January.  Zyszkiewicz’s petition, which maintained the DEA’s position was “untenable” given that two-thirds of the states had implemented medical programs at that time, was denied by the DEA in April, giving rise to the brief from the Sisley group.

A response to the brief would normally be due within 30 days, but the Department of Justice has already filed for an extension. Pennington said he’s expecting a response sometime around Thanksgiving.

While Pennington expressed confidence that the court would rule in the petitioners’ favor, he said the brief he filed could have a broad impact regardless.

“We hope our brief raises some alarm bells for Congress heading into an election,” he said. 

“Even if we don’t win,” he later added, “we hope this sets the record straight on how we got here.”

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