Illustration: Naomi Rosenblatt
Earlier this year, Honeysuckle’s Deputy Editor Naomi Rosenblatt brought you the story of the class-action lawsuit against Attorney General Jeff Sessions, which seeks to prove that the Controlled Substances Act is unconstitutional and that cannabis should no longer be a Schedule 1 drug. [See our CANNABIS print issue for a full overview.] The case’s many plaintiffs include 12-year-old Alexis Bortell, an epilepsy patient turned activist, and 7-year-old Jagger Cotte, who suffers from Leigh’s disease. Both children need cannabis to live, and the case’s progression has sparked public debate about whether it could trigger federal legalization of marijuana. Recently dealt a harsh blow in U.S. District Court by Judge Alvin K. Hellerstein, the plaintiffs are still proceeding with their worthy cause. Today we have an update as the case continues to unfold.
“Americans are sick of sanctimonious politicians using public office to force their personal views on everyone else.” —Richard W. Painter, March 1, 2018Jeff Sessions is the ultimate sanctimonious politician. Consider his stance on cannabis: “Marijuana is dangerous, and marijuana activity is a serious crime … Good people do not smoke marijuana.” We can reasonably ask, how can Sessions, who has lied under oath before Congress, determine a “good person” from a “bad” one? We may also ask, what about smoking marijuana makes a person “bad,” as opposed to one who drinks alcohol or smokes crack? Sessions’ most specific argument, that marijuana is a “gateway” to broader addictions, has been debunked by numerous studies. His extreme opposition to cannabis boils down to sanctimony.Sessions, therefore, exploits his public office as Attorney General to stigmatize cannabis and restrict access to it rather than to alleviate stigmatization and regulate its use, for the good of the people.
On January 4, 2018, he began rescinding Obama-era policy that increased states’ liberty to legalize marijuana. These policies helped provide medical marijuana to Americans and to grow new businesses. But ever since it was designated as a Schedule 1 drug by the Drug Enforcement Administration (DEA) in 1970, marijuana has been federally prohibited. For this reason, a group of plaintiffs who rely upon medical marijuana—including twelve-year-old Alexis Bortell—have sued Jeff Sessions, the Department of Justice (DOJ) and the DEA. These plaintiffs and their counsel hoped their case would compel the federal government, specifically the DEA, to reschedule cannabis and even to recognize its use as a constitutional right.Their hopes for an immediately favorable ruling were dashed on February 14, 2018, by US District Court Judge Alvin K. Hellerstein.
Delivering a bit of a surprise riposte, in view of the claims, Hellerstein charged that advocates had “failed to exhaust their administrative remedies” to alter cannabis’s legal status, and should pursue their quest through legislation rather than court rulings. “Plaintiffs’ claim is an administrative one, not one premised on the constitution,” Hellerstein wrote, and “is best understood as a collateral attack on the various administrative determinations not to reclassify marijuana into a different drug schedule … it is clear that Congress had a rational basis for classifying marijuana in Schedule I, and executive officials in different administrations have consistently retained its placement there…Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule 1.”A Schedule 1 drug is defined officially as one with no proven medical benefits, and a high potential for abuse.
Directly contradicting himself, Hellerstein went on to write: “Plaintiffs’ amended complaint, which I must accept as true … claims that the use of medical marijuana has, quite literally, saved their lives. One plaintiff in this case, Alexis Bortell, suffers from intractable epilepsy, a severe seizure disorder that once caused her to experience multiple seizures every day. After years of searching for viable treatment options, Alexis began using medical marijuana. Since then, she has gone nearly three years without a single seizure. Jagger Cotte, another plaintiff in the case, suffers from a rare, congenital disease known as Leigh’s disease, which kills approximately 95% of those afflicted before they reach the age of four. After turning to medical marijuana, Jagger’s life has been extended by two years and his pain has become manageable.”Is anyone else ready to scream: Make up your mind, Judge! Either “Congress had a rational basis for classifying marijuana in Schedule 1,” or “marijuana…saved their lives.”
If marijuana has current medical—indeed, life-saving—benefits, then Congress was, and continues to be, wholly irrational in characterizing it as a drug with no medical use. This is not rocket science.Hellerstein pronounced, “The authority to make that determination” (that marijuana is or is not medically useful to American citizens) “is vested in the administrative process.” In other words, let’s leave it to sanctimonious Jeff Sessions. On such grounds, Hellerstein dismissed the claim that marijuana use be construed as a constitutional right; in fact, he dismissed every claim in the case.Co-counsel Joseph A. Bondy pointed out to Honeysuckle that such an extradited review as Judge Hellerstein suggests could take up to nine years—“which is completely unfair to our plaintiffs, and threatens their lives and well-being.” Bondy explained that, while Bortell and the other plaintiffs can currently use their medicines at home, in states where it is legal, they cannot cross state lines or visit federal grounds (such as The Grand Canyon or The Smithsonian, to say the least for government offices). Their lives remain restricted, and their continued use of cannabis uncertain.
Yet Bondy, as well as co-counsel David Holland, and Lauren Rudick of the lead counsel firm Hiller PC, are all heartened that a federal judge has acknowledged the medical efficacy of marijuana. They are also glad that this case has raised public awareness of the benefits of marijuana and the challenges of administering it. Articles about this case generated millions of click-throughs over the past months, Bondy mentioned.“We have the eyes of the world on the human rights issues impacted by prohibition, in a manner that has never been accomplished before,” Lauren Rudick reports. “Mainstream media is clued in, and largely supportive of the patient advocacy and social justice issues we raise.
Others feel that this is a States’ rights issue that requires prompt judicial attention, to avoid congressional unconstitutional overreach.”Emboldened by such gains, the prosecution is now evaluating options that include a direct appeal, or (less likely) rescheduling petition. What are the counselors’ next steps in the appeals process? They have thirty days in which to file their Notice of Appeal. The Court will set a briefing schedule—and once they obtain that schedule, the briefing will take a few months.Rudick is optimistic about the direct appeal: “We are likely to appeal straight to the Second Circuit…that may feel less constrained by prior precedent than Judge Hellerstein.” If they win the appeal, they will be remanded to the Southern District (back to Judge Hellerstein) for the trial that “we should have obtained in the first instance,” according to Rudick. “If that happens, however, we would expect the Government to appeal (or attempt to appeal) to the Supreme Court.”
Clearly, this case could be pivotal. How can the public help it to succeed and to phase out Jeff Sessions’ bogus authority over marijuana use?“Continue to support the plaintiffs and their advocacy efforts, and continue to put pressure on elected officials,” suggests Rudick. “If this case angers enough people that they demand and insist upon change from their congresswomen and men, that’s also a win.”Bondy goes on to add: “You can’t win without everybody … and WITH everybody, you can’t lose.”
—Read more about this case in our CANNABIS print issue, and keep checking our site for updates on the latest news.—