Gettman-High Times Marijuana Rescheduling Action Heads for Federal Court, Latest Turn in Glacially-Paced Legal Battle

In the latest phase of a decades-long effort to win the marijuana wars by using the federal administrative process to reschedule marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act, lawyers for former National Organization for the Reform of Marijuana Laws (NORML) director Jon Gettman and High Times magazine are preparing oral arguments before the US Court of Appeals for the DC Circuit. Attorneys from the law office of New York City-based Michael Kennedy will argue before the court on March 19. DRCNet has obtained a copy of their brief.

Although NORML first filed suit against the Bureau of Narcotics and Dangerous Drugs in 1972, and Gettman, as head of NORML for part of that time, participated in that lawsuit, its twenty-year odyssey through bureaucratic purgatory ended in failure. In 1995, Gettman filed a new petition asking the DEA to to reschedule marijuana because it did not fit the three criteria required to make it a Schedule I drug -- high potential for abuse, no accepted medical use, and no safe means of medical use. After sitting on the petition for two years, the DEA shuffled the petition off to the Department of Health and Human Services (HHS) for required evaluation. Three years after that, in March, 2000, the DEA denied the petition. Gettman and High Times filed an appeal three weeks later.

In their brief, Gettman's and High Times' attorneys will ask the court to overturn the DEA denial on five grounds:

• The DEA determination that marijuana has a high potential for abuse was without factual support and flawed by its failure to evaluate marijuana's relative potential for abuse compared to other drugs.
• The DEA misinterpreted the Controlled Substances Act by concluding that even if marijuana did not meet the high abuse potential criteria, it should still be maintained as a Schedule I drug. But 21 USC 812 (b) (1), the relevant section of the Act, plainly lists that all three findings are required.
• The DEA failed to follow the act's requirement that it consider all eight factors listed in the act in making rescheduling decisions. In addition to abuse potential and current safe medical use, those include danger to the public health, current patterns of use, and its dependence liability.
• The DEA erred in finding that because marijuana is not approved by the Federal Drug Administration, it therefore has no accepted medical use and lacks safe use under medical supervision.
• The DEA denied the petition without granting a hearing. After waiting five years for action, Gettman formally requested a hearing on the proposed findings of HHS. That request was denied in December, 2000. Three months later, the DEA ruled against the petition.

Still, Rionda doesn't foresee final victory anytime soon. "If we win on the issues, the court will remand the petition back to the DEA and order it to do a proper evaluation. Then they will attempt to find other reasons not to reschedule," Rionda said. "They will be bogus, but then they could try to stretch it out for another six years."