Federal Judge Upholds Schedule I Classification Of Cannabis

A federal judge today denied a motion challenging the constitutionality of cannabis’ classification as a Schedule I prohibited substance without any accepted medical utility.

Judge Kimberly J. Mueller of the Federal District Court in Sacramento, California issued her oral ruling during a 15-minute court hearing today. Judge Mueller heard closing arguments in the case in early February but had postponed her decision on several occasions. Her written opinion is not yet available but is expected to be posted publicly by week’s end.

“At some point in time, a court may decide this status to be unconstitutional,” Judge Mueller said from the bench. “But this is not the court and not the time.”

Defense counsel intends to appeal the ruling.

In October, defense counsel and experts presented evidence over a five-day period arguing that the scientific literature is not supportive of the plant’s present categorization. Lawyers for the federal government countered that it is rational for the government to maintain the plant’s prohibitive status as long as there remains any dispute among experts in regard to its safety and efficacy. Defense counsel — attorneys Zenia Gilg and Heather Burke of the NORML Legal Committee — further contended that the federal law prohibiting Justice Department officials from interfering with the facilitation of the regulated distribution of cannabis in over 20 US states can not be reconciled with the government’s continued insistence that the plant is deserving of its Schedule I status under federal law.

Paul Armentano, NORML’s deputy director who served as the principal investigator for defense counsel in this case said: “We applaud Judge Mueller for having the courage to hear this issue and provide it the careful consideration it deserves. While we are disappointed with this ruling, it changes little. We always felt this had to ultimately be decided by the Ninth Circuit and we have an unprecedented record for the court to consider.

“In the interim, it is our hope that lawmakers move expeditiously to change public policy. Presently, bipartisan legislation is before the House and Senate to recognize cannabis’ therapeutic utility and to reschedule it accordingly and we encourage members of Congress to move forward expeditiously to enact this measure.”

In a brief filed with the court by the federal government, it contended: “Congress’ decision to treat marijuana as a controlled substance was and remains well within the broad range of permissible legislative choices. Defendants appear to argue that Congress was wrong or incorrectly weighed the evidence. Although they failed to prove even that much, it would be insufficient. Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”

They added: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”

Said Armentano, “The continued Schedule I classification of cannabis, in 2015, in self-evidently ridiculous. But unfortunately, the law may be ridiculous and still pass constitutional muster.”

He added, “The judge in this case missed a golden opportunity to demand that federal law comport with available science, public opinion, and common sense.”

Legal briefs in the case, United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, are available online here.

102 thoughts

  1. So , I wonder how much palm greasing was necessary for judge Mueller to uphold the unconstitutionality of cannabis scheduling classification?

  2. Just another case of a judge that’s too much of a coward to follow facts and logic. way to pad your pockets with false crimes. there is no reason to thank a judge for hearing a case. its her damn job. which she only half asses. Its lazy pocket trolls like her that have ruined the system to begin with

  3. “All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare.

    It is reasonable to counter argue that they could not have rationally believed that cannabis prohibition would advance its interest in health and welfare. The policy had already been to put to test with alcohol prohibition. It failed completely, and cannabis prohibition has failed equally as completely. I believe many in Congress are familiar with the aphorism regarding doing things over and over and expecting different results, they mention it regularly. It’s brought up to point out irrational expectations or behaviors by opposition members.

    It sounds like the government argued that it is constitutional for congress to be wrong but not irrationally so. To which I say here is an example of being irrationally so, despite the disagreement of (so called) experts.

    I would also argue that nowhere does it say Congress is Constitutionally bound to listen to expert advice, and even if it did, the idea that such advice cannot be parsed by courts is absurd once it is reasonably demonstrated that Congress has acted irrationally.

  4. While I was hoping Mueller would have a pro-legalization decision, it doesn’t surprise me one iota that she upheld prohibition. It’s the same old story while such people are in their installed office, and then after they are out of office, retired, whatever they come out in favor of legalization. Former Mexican presidents do it all the time.

    It’s that whole international WHO schedule and the international treaties shit. The American people will simply have to keep ignoring the illogical bullshit that the feds because WHO won’t reschedule and so the feds won’t reschedule, and everybody’s too fuckin’ lazy to do the work necessary to petition the Secretary General, and the dicks in WHO itself are just doing as little as possible in order to keep collecting a paycheck.

    There’s the interlocking cannabis as the new Jim Crow to keep basically a permanent underclass generation after generation that lives in the inner cities and resorts to violence to settle disputes. The military part of the complex needs there to be poor people used to violent acts to direct their skills in the name of big profits for the defense contractors and their shareholders to use to go abroad and ensure profits. Note how the VA is underfunded, and can’t keep up with taking care of veterans properly. I heard the latest VA scandal about the Philadelphia VA audit where they were changing the dates and there was something like a year backlog for patients.

    How will there be a permanent underclass when we abolish the new Jim Crow, legalize cannabis? Where will the violent youths desperate to escape poverty come from to enlist in the all volunteer armed forces?

    Now it’s up to Congress and the CARER law. Congress is a do nothing body whenever it comes to anything pro-cannabis, and I’ll be amazed if they actually take any kind of action to move legalization forward soon. They’re more likely to stretch it out and put the issue off to maximize election donations.

    Mueller, I’m so disappointed in you, yet not surprised. You could have gone down in history on the right side, the correct side of the cannabis issue, but you took the low road, easy way out, servile compliance. Shame on you.

    [Paul Armentano responds: The Judge has yet to issue her written ruling so we can only speculate as to her reasoning. That said, she acknowledged from the bench that our witnesses were credible which infers that had strict scrutiny been employed rather than rational basis we may have had a different outcome. The rational basis burden is exceptionally low and the government argued that the mere fact that a single credible expert would support keeping cannabis as Schedule I would thus make the federal law rational.]

  5. Well when you don’t have to be right in a decision and you still have it go in your favor, I think we have more problems with our courts than with cannabis. This isn’t weighing evidence it’s personal choice.

  6. I think all those postponements just gave more opportunity for the bad guys to pay her off. My heart sunk when I saw this, but looking at the big picture I really don’t think this will matter. Momentum is still in our favor and people will continue to open their eyes.

  7. Two words on this judges mind: Job Security

    Two more words on this judges mind: Career Suicide.

  8. Hey lady judge grow some balls & make a fair decision.It feels like the Republicans whispered in your ear.

  9. Another Judge CAVES! to the System, The Government is the joke here if it has to stay a schedule 1 drug and has no medicinal value then why is the government the Patent holder? control issues it looks like. If they want the money from it Legalize it and tax it the same as booze and cigarettes and why is a Canadan Pharma Company now using the US Marijuana Patent?

  10. Really disappointed in her decision. If she went the other way it would’ve kicked the door wide open. Damn…….

  11. Complete and utter nonsense, she should go back to the cave where she came from. you want a schedule 1 drug, try liquor!!

  12. How can people with Obsessive Compulsive Personality Disorder make good decisions?

    Keep on rubber stamping Bullshit laws, keep on making US (the United State) disrespect you.

    Free my ass. Fuck you scum.

  13. “but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”

    This is exactly what Marijuana Prohibition is. There is no rational basis for congress to believe marijuana is dangerous or that banning the material help achieve any public safety goals. It is completely I-fucking-rrational.

  14. I guess u.s. patent 6630507 was not brought into this debate? Not one mention to the utter contradiction of this plant being a controlled 1 substance? If the u.s. government has a patent on the medicinal properties of specific indecision found in the plant, how can it be deemed to have no medicinal benefit?

    You know what, I’m tired of all these politicians and Lawyers on all sides of the fence. For this patent not to be introduced into the discussion is a smack in the face to every tax paying citizen.

    [Paul Armentano responds: The US patent was indeed highlighted by defense experts and in our legal briefs.

  15. For years myself and several of my friends could not
    Believe that cannabis would ever be classified as a
    Schedule 1 drug . In our opinion ,it was schedule wrong from the beginning.

  16. Definitely a shame, but we can’t fault Judge Mueller. She was in no position to make a political stand by challenging the status quo, and so she took the easy route of sticking to the letter of the law.

    I don’t hold much hope for a successful appeal by the defense because as others have pointed out the prosecution is simply better equipped in this instance.

    On the other hand, I definitely don’t think this is the last we’ll be hearing about this issue in the federal courts. The tides of change are crashing at the government’s gates, and it’s even becoming politically advantageous to be pro marijuana reform.

  17. Even the government’s witness admitted that marijuana is medicine. That wasn’t clear enough. Marijuana users are officially subjects of the US government; everyone else are citizens.

    This judge claims a parent that uses marijuana to help treat their child’s brain cancer is indeed a criminal–and that is nothing short of ridiculously biased claims of snake oil salesmen. We already know marijuana is medicine, but they want to sell us their snake oil, cancer causing chemo instead and it is pathetically transparent.

  18. Patent No. 6630507 held by the U.S. Department of Health and Human Services covers the use of cannabinoids for treating a
    wide range of diseases.
    This is a fact.
    It’s undeniable.
    This judge’s decision is suspect to say the least.
    She should be ashamed.

  19. We the people know cannabis is benificial as medicine, won’t kill you, fun and can be used for many differing things such as food, fuel, clothing and building materials. The medium of media’s psychological damage brigade perpetuated upon the US and the globe through the demonization of cannabis in the early 30’s up until now has embedded itself alongside a strong fear deep within the psyche of humanity. If the judge is still too blind to see even with the simplicity of the facts right before her eyes, the fact that our very own government has a patent on it for medical reasons, the fact that the FDA has recently granted trial tests for medical research on patients, the fact that the NIDA recently associated cannabis with ability to kill deadly brain cancer, the fact that 23 states and our capital have hundreds if not thousands of doctors prescribing cannabis for medicinal reasons, the fact that our very own government produces cannabis in Mississippi and supply’s tin can barrels to patients god-fathered into its program, the fact that tomorrow the state of Georgia’s governor is signing a law allowing CBD oil for a number of ailments like many states have moved to do quickly for the benefit of helping children with epilepsy. The fact that cannabis has never killed one soul on this planet. Yet it’s illegality and unjust classification has ruined countless lives. Countless lives have been ruined and many other lives are still in jeopardy of being ruined due to cannabis prohibition and it’s unjust scheduling.

    I’m sorry your honor, I find it hard to find honor in your decision. Our judicial system has failed us once again. From now until the end of this unruly war on cannabis perpetuated upon the citizens of these United States and abroad we the people must raise our voices in the streets, at our capitol buildings, courts of law, towards our politicians, on social media and end this embarrassing part of our country and world history. We helped to perpetuate it around the world with the skillful help of lies from those we trusted. Now we must undue what has been done. God Speed everyone.

  20. Just another judge toeing the company line. Not quite as unbelievable as the judge who ruled GM not responsible for killing 89 people because they emerged from bankruptcy a different company; (same name, same workers). You and I get the death penalty and a “company” walks? Justice is fleeting today.

  21. Btw, always ask for a trial by jury if you’re in trouble. Better to have 12 people deciding your fate instead of 1.

  22. This sounds so familiar: “At some point in time, a court may decide this status to be unconstitutional,” Judge Mueller said from the bench. “But this is not the court and not the time.”

    I guess the war on marijuana must go on until the federal drug warriors can come up with “peace with honor” solution by providing another crusade against the American citizens with the support of the “silent minority”. I wonder what’s this new doctrine will be named after?

  23. APPEAL!
    NORML, we can crowdfund and take this to the Supreme Court!

    Thank you, Paul Armentano for all the vital work you provided. We ‘ve got your back: Let ‘s appeal!

  24. no one really knows why the government no longer listens to the will of the people. But my guess is it all about the money. it is sad how this government ignores WE THE PEOPLE. THE new saying for this country should be where’s the money. How sad it is to see good people’s lives be ruined for using a safer natural substance all because someone is getting rich. How these people sleep at night is beyond me.

  25. I do not understand? This life-giving plant deserves its rightful place in society. The new kid on the block in the words of Dr. Grinspoon. What will it take for the solutions be allowed to emerge out into the open for everyone to see, feel,smoke, taste and touch what is our birthright as human beings having a spiritual experience on earth. Cannabis can help us all create a more creative, peaceful and green world. Hemp as well. No corporations, only coming from people who grow it out in the sun. We have our constitution, we must demand that it be respected. They cannot just throw people into prison for payroll reasons. They cannot and will not continue to destroy the biodiversity on this planet. In all the ways that they do. Hemp and Cannabis were placed here for a reason. No Government should continue to be allowed to harm its own people in the disallowing of them to use a medicine, in fact the only medicine. We do not need more prescription overdoses. This Judge is a coward. We should just junk the Controlled Substances Act put it in the shredder including every other acts that either directly or indirectly destroys and violates civil rights for people who are human beings that have value and a purpose. They are essentially violating or being now our existence. Taking it away by continuing to support the continued enforcement of laws that cannot and should be enforced. Nickelback calls it a revolution. Use your voices people. Wake the fuck up! Evolution is happening. Cannabis allows us to adapt to change.

  26. “They are violating or existence in regards to our evolution.” Our ability to better embrace change is easier with phytocannabinoid activity. Did you see the recent tornado that killed two people and caused a ton of damage. Memories are involved and more intensely ingrained after trama. Its called PTSD. Our ECS endocannabinoid activity system enjoys the stimulation from cannabis constituents. She teaches us to slow down. Relax. Breathe. No more competition. No more war. Only balance and harmony. Giving back to the earth. Otherwise I think we are in for rough ride. She has been with us since the ancient days. The feminine energy. Marijuana. Ommmmmmmmmmmmmmmmmm The Reliever of Distress. http://www.benefitsofmarijuana.com/




  27. When IS the time, Judge?!

    I think the Federal Govt. Should be liable for all the lives they’ve ruined because of lies, propaganda and suppression of research that THEY commissioned (La Guardia Commission). I don’t see where it is any less direct and any less harmful than someone who perjures themselves and caused another to be imprisoned.

    I wish I still had the political freedom in this Draconian state to make some comment like, “Where are the Weathermen when we really need them?!” But that, First of all Liberties, is dashed–so I will not say it….

  28. Plaintiffs completely failed to adress the required Constitutional Amendment, which, being absent – substantiates nullification of the prohibition. Congress can only prohibit the substance that the Constitution was originally constructed of – by doing it correctly, with an Amendment. We can further extrapolate on the Tenth Amendment, revisit the Comnerce Clause preclusions, and cite the pertinent relevance of ubiquitous, even historical courtroom and capitol building uses, of same Genus and Species, in question. Plaintiffs have no excuse for this neglect, again and again and again, in these courts…!

  29. Like all of you I was hoping the judge would conclude this case based on it’s merit. I hoped she would be honest and decide based on the overwhelming evidence that cannabis should not be listed as a schedule 1 drug.

    I think maybe that is what she intended at first. However, during that time I highly suspect that she and perhaps her family has been threatened by those that oppose the truth and want to continue prohibition for now… Of course I could be wrong, but I think I am probably correct.

  30. Marijuana has been ILLEGAL for over 70 years!
    What are the results?
    *Today marijuana is America’s #1 cash crop.
    *Marijuana is stronger and easier to get than ever before, albeit much more expensive than it should be. To smoke casually from the “black market”, it will run you $100/month. This is much more expensive than it needs to be. More expensive than my cell phone ($20/month from Tmobile), car insurance ($25/month from Insurance Panda), netflix ($10/month), and gym ($15/month from PF) COMBINED!!! Would you rather put money into the hands of violent gangs and drug dealers… or into taxes for schools, hospitals, public infrastructure, etc.???
    *Today American kids can buy marijuana easier than they can buy a beer.
    *Today marijuana is the #1 source of income for violent drug gangs and drug cartels who are richer and more dangerous than ever before.
    *Guns are illegal in Mexico yet Mexican drug cartels are buying machine guns, rocket launchers, grenades, airplanes, armored vehicles, anti-aircraft guns, and even submarines.
    *The DEA has been having sex parties funded by drug cartels.
    The ATF/DOJ has given thousands of guns to drug cartels.
    *There are over half a million Americans in jail right now for non-violent drug crimes.

    I have this stupid thing I do called THINKING, and clearly I can see that marijuana prohibition can never work! America should have learned this simple lesson from alcohol prohibition!

  31. ” “At some point in time, a court may decide this status to be unconstitutional,” Judge Mueller said from the bench. “But this is not the court and not the time.” ”

    In other words, ~’while it is reasonable one might question its current legal status as concretely lacking any medical use, my palms are so greasy I couldn’t hold a pen to sign off on anything contrary to the will of my benefactors’

  32. Thank you again, Paul, for your quick response to this utterly terrible, incorrect and contrived decision by Judge Mueller. As disappointing as this is, it’s reassuring that NORML had planned to take this to the 9th circuit all along, and the very fact she heard this case and gave credibility to witnesses in the Defense is encouraging as this case makes its way up through the court system.

    “Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.” They added: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”

    First of all, who are the “qualified experts” that the government’s attorney speaks of? Dr. Madras did not provide a cent worth of credible scientific evidence to this case as Mr. Armentano most certainly did. And one of the government’s witnesses was so eager to pitch a line that Marinol was better than herbal marijuana that he actually ADMITTED marijuana was medicine under OATH! That’s a direct contradiction to the Controlled Substances Act. Can’t Judges be sanctioned? This has to be pointed out in the appeal. I mean, who wrote this summary, GW Pharmaceuticals?

    If Congress doesn’t have to be right, that doesn’t mean that the prosecution does not have to be right. That’s why it’s called JUDICIAL REVIEW Mueller. (Jeez, can’t wait to read the bull$hit excuse she wrote up in THIS decision).
    Wait.. let me check… Yup, two wrongs STILL don’t make a right.

    Oh well; perhaps there is an advantage here in the Defense writing the appeal.
    I realize from reading this blog that many people are not aware of how much evidence Mr. Armentano brought to this case, including patent 6630507 (and what an incredible hypocrisy that Mueller couldn’t qualify the government’s own PATENT on cannabinoids as an “imaginable basis” … I mean, if the government’s own PATENT on cannabinoids as neuroprotectants doesn’t qualify as an “imaginable basis” for descheduling marijuana from having “no medicinal value” than FOR THE LOVE OF GOD WHAT DOES??!!)

    Question Paul: Is there still time to add to this appeal that there is rational basis that one of the witnesses, Sgt. Begin, has been discriminated as a veteran and a soldier by denying him medical treatment for PTSD using marijuana and exacerbating his condition with opiates?
    It seems to me like what this case is lacking is a more personal defense based on racial and/or ethical discrimination of the infirmed.

  33. The majority of congressmen should be thrown out next election! They could change this stupidity but choose to continue it. It is Un-American to discriminate against people the way the prohibitionist laws do. It is downright criminal the way billions of dollars worth of assets are seized across this country.

    I really hope the people of this country look and think really hard during the 2016 elections and ultimately realize that throwing the bums out is the right choice for all of us!

  34. Look her up on youtube. She’s nothing more than a common criminal! She has absolutely NO legitimacy at all. Neither does she merit a modicum of respect!

  35. How about a new referendum called ACACG Act.
    American Citizens Against Corrupted Government. Mr. Rand Paul’s CARERS Act is just another slap in the face that the mainstream can’t see through as of yet. It only helps veterans and not the actual citizens, which is nothing more than a continuation of prohibition for everyone else and gives the government criminals more leeway to continue to enforce their unjust prohibition against the people. I will not be voting for mr. Paul or the CARERS act, it’s just more smoke and mirrors.

  36. When are we going to start firing these government workers who don’t share public opinion.

  37. “At some point in time, a court may decide this status to be unconstitutional,” Mueller was quoted as saying “But this is not the court and not the time.”

    What is the purpose of The Constitution?… if it does not apply… in Federal Court?

    Travesty of Justice …comes to mind.

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