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

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 downC1_8734_r_x prohibition as a violation of our personal freedom.



19 thoughts

  1. Thank you Keith for bringing this fascinating and timely suit to our attention, and for providing us with so many years of sensible legal council since you founded NORML back in 1972.

    Many eyes will be glued to this case. Its got everything we stand for as Americans in it, and for what we stand for at NORML.

    It was not long ago that we stood breathless as Federal Judge Mueller from the NE district of California, appointed by President Obama, ruled on the Constitutionality of the CSAct that “Congress does not have to be right.” While Obama and his Cole memos that allowed state legalization are a far cry from the deadly clown-circus we have going under the Drumphenfuhrer, it is widely recognized by professional marijuana lobbyists that it is federal Congress who must clean up the mess they made with the CSAct.

    But they wont. Well, there is the Rohrabacher-Blumenauer amendment (GOD it hurts to spell that…) …without which Sessions may have already had his crackdown on state legalization. (Before he himself gets cracked down on by the Comrade-in-Chief).

    But the courts have more recently shot down the Supremacy clause from ending state marijuana legalization. Perhaps even more surprising, a federal court in Mass. awarded damages to a woman who lost her job from failing a piss test under voter-initiated language protecting the handicapped! Talk about a game changer! She was awarded damages!

    I have been cautious since Mueller’s ruling. But the language in this suit leaves open several doors for the Supreme Court to interpret, and for all the right reasons; marijuana prohibition has ALWAYS been about voter suppression. And here is the real test of our Democracy and freedom: will the courts prevail where Congress and the Presidency is guilty of treason? We shall soon see…

  2. Has the genocide argument been made, based on the “destruction of culture” aspect, outlined by the UN (possibly other law)?

  3. I was wondering when someone would have the sense and kahonis to challenge the constitutionality of cannabis prohibition in court again.

  4. I need help with case of discrimination for my son 16 and he was arrested for paraphernalia in NC and jailed for one day now on probation for this
    Please help single mother

  5. The people who are against marijuana legalization. need to get there head out of the sand . When they claim that marijuana is dangerous and we need to keep it out of the hands of children then they need to realize marijuana is always going to be there so to keep it off the streets it needs to be legalized. As long as marijuana is illegal anyone can walk down the street and buy it. Since marijuana is always going to be here we need to control it like alcohol. If you chose to keep it illegal they you made the choice to make it easy for children to get.

  6. After having used cannabis for the last 45 years I would have been dead long ago if cannabis truly met the standard for being a schedule 1 drug. In fact, I believe it has helped me to live a longer and healthier life than I would have otherwise!

    People like Sessions, Chris Christie, and Rosenberg are either very stupid or they are liars who have chosen to pursue evil agenda.

    1. Third possibility: they are “normal” members of a government culture ruled by Boughtism– look up article “Sessions may hate cannabis but he sure loves Big Tobacco”.

  7. I was so excited to see this lawsuit last night. After watching the History Channel’s “America’s War on Drugs”, where it was explained Nixion introduced the war on marijuana as a way to control the Hippie and Black populations while he was President. It makes me sick that so many Americans have suffered, and are still suffering, on the whim of a self serving government.
    It is even more important now that we legalize marijuana. As the government makes it more and more difficult to for Americans to get adequate pain relief, cannabis can do much to help with pain,PTSD, withdrawal and depression. The only reason for keeping it illegal is Big Pharma. And that is not a good enough reason!

  8. 11-year-old Alexis Bortelli is a plaintiff in this law suit:


    I met Alexis the previous year in Fort Worth during the SouthWest Texas Cannabis Convention and Expo. One cannot listen to this girl speak so forceful and confident beyond her years… and not get goosebumps and feel the hairs stick up on the back of your neck. No joke: there is a spirit felt through everyone in the room when we recognize a leader… a voice we have counceled and chosen to speak for our movement.

    Alexis has that spirit.

    When she counts the days she has consumed cannabis and lived free of a seizure it takes genuine effort to keep the swelling in the eyes from pouring out. Put this girl on the stand!!

    Im pleased to see Marvin Washington listed as a fellow plaintiff. Another genuine hero. He was also at the Expo… leading me to believe these legalization events are more than the echo chambers I feared they would become. Marijuana activists need to meet in person and encourage eachother. We didnt even get to have weed in our possession in Texas, which speakers lamented, but they said “thats the purpose. And were going to keep doing this in Texas until its legal to possess and consume.”

    If Congress “doesnt have to be right” lets see if thats true for the AG and the DEA. When its on its on.

  9. Good article, but you diminish your own credibility on drug safety with statements like “the most dangerous of substances, such as heroin, LSD, and mescaline.” To claim that psychedelic substances such as LSD and mescaline, which have been proven over many years to not only be very safe (with no known LD50 in humans) but also quite powerful healing tools, are among the most dangerous substances and in the same category as heroin reflects a profound lack of knowledge about this class of drugs with great potential for the future of humanity. When the main point of the entire article is to argue that cannabis is misunderstood and misclassified, it’s inexcusable to make that same mistake about other drugs.

    1. @ aneducatedreader,
      Agreed; and I think this goes to a larger point that we who support marijuana legalization should not forget, and that is this: we must remember that marijuana legalization is always part of a larger context. We cannot trade victims with users of other drugs, just as we cannot trade victims with Trump’s deportation squads.

      Marijuana legalization is founded on principles of social justice, and if it is not, then it is just another power grab, and is no longer justifiable.

      That is also why the marijuana legalization community must unequivocally oppose Trump, that fascist dictator wannabe who just can’t stop giving Putin blowjobs. Legalization will mean nothing if Trump has his way, because, in Trump’s fascist Russian America, freedom itself will soon be illegal. This is what should concern us all.

    2. …But to be fair to NORML, I don’t think Keith was making the negative statement about the other drugs. Actually, he said the plaintiffs were saying that mmj doesn’t belong in schedule I, which is true. And, marijuana is SAFER than all those other drugs.

      So, I am not criticizing Keith, and I heartily agree with the point of his blog.

    3. Dude, page 4 of the suit bruh. That’s how they wrote it into the suit so he just kept it in the article. Lay off him

    4. Let’s take a toke on that, Mr. Educated reader…


      …There… thats better.

      One of the many blessings marijuana brings to my life is a balanced perception by supplying a homeostasis of external context with bold introspection.

      Granted, its hard to create context from a scheduling list from the CSAct that places marijuana in the same catagory with heroin or LSD, while tobacco and alcohol are not even on it. Marijuana helps me make context of political bull$#!+ like the CSAct by reminding me to ask “where are the resources?” and “how do we pay them?”

      When the DEA put Kratom on the list of schedule 1 drugs earlier this year after it became clear the SE Asian herb was helping people get off synthetic opiate addiction and heroin, it became clearer than ever how the DEA was getting paid. And even clearer that we are in the midst of a civil war on whether we (or the people our subsidized private insurance pay at Big Pharma) define whole plants or synthetics as “medicine.”

      I dont think Keith is disparaging LSD or other schedule 1 drugs as having no medicinal value. Researchers over at http://www.MAPS.org can attest to that. Keith himself has written on the subject and with the help of Hunter Thompson, lived through it during the foundations of NORML. The drug that was supposed to make mind control easier for the CIA turned out to free people’s minds, or in the words of Leary, “Question authority.”

      But clearly, taking too much LSD is not comparible to whatever “too much” marijuana is. To put it into context, here is a Washington Post article from May 1978, when I was BORN and Keith was nearly the age I am now!

      “Stroup is on record as saying he’s tried a number of other drugs, including cocaine and LSD. He has never experimented with heroin, he says.”


    5. With that said, most whole plant derivatives are considered medicine by acute dosage. Too much can cause harm or even death. Not so with marijuana. One cannot conceivably overdose with marijuana without asphyxiation due to lack of oxygen, like strapping a gas mask on to a truck load of burning weed… a cause of death unrelated to a breathable dosage of the raw uncombusted extract.

      Marijuana is so different in that it is not only the safest most effective medicine through a synergy of cannabinoids, but it is non toxic. No overdose. Not even with smoked cannabis, which is the only way to consume any trace of toxins from the smoke. No deaths even from the very rare reaction to a few marijuana consumers who have an autoimmune reaction to marijuana opposite to the vast majority of symptoms and experience nausea and vomitting. Not even to babies that eat medibles. Not that I recommend it, but if a baby accidentally eats a medible they just sit it out for a coupla hours and theyre fine. Cant say that about tylenol.

      Keep it into context, ER and cite your sources: http://norml.org/library/health-reports
      Thats how an Educated Reader becomes an Educated Writer.

    6. LSD and mescaline are definitely not *safe* — they should only be used with great caution, due to documented reactions like flashbacks. They’re nothing to play with and should be used with care.

      They still aren’t schedule I, though because LSD has known, validated medical uses.

      Perhaps the best argument to be made in court is that the scheduling of drugs is done completely irrationally (no rational basis) and does not comport with the claimed meanings of any of the schedule classifications. This is a clear abuse of authority.

  10. “African Americans and other persons of color”

    Why is it ok to say “persons of color”, but not colored people?

    “even though marijuana is used equally by people of color and Caucasians.”

    Yes, let’s turn this into a race-baiting issue. Impoverished Caucasians being targeted by anti-marijuana laws? No, fuck white people, right?

    “and to suppress people’s First Amendment rights”

    Most violations of First Amendment rights are actually coming from the left these days. Look at Dawkins and KPFA, or the anti free speech horseshit going on on your leftist college campuses.

    On an ending note, the most anti marijuana country in Europe, Sweden, is also the most left-wing country in Europe.

    1. There, there… It’s tough out there for a bigot. I know, baby. Shhhh… Lullaby…. lullaby….

  11. “Yes, let’s turn this into a race-baiting issue.”

    Was that weak sarcasm or head-stuck-up-the-@$$ syndrome? You honestly wanted Keith to say “colored people?” Pull yer head out of yer @$$. Its GOTTA stink in there.

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