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War on marijuana unconstitutional? Federal judge reviews evidence


In a surprise case with far-reaching ramifications and global symbolism, a federal judge in California will review evidence this week as part of a defense motion to declare the government's 40 year-old war on marijuana unconstitutional.

U.S. District Court Judge Kimberly J. Mueller concluded hearings Thursday in Sacramento on a preliminary motion by the defense in the case of U.S. v. Schweder. San Francisco attorney Zenia Gilg and Heather Burke motioned to declare unconstitutional the continued classification of marijuana in Schedule I, and Judge Mueller allowed it — forcing a hearing on the issue.

Last week Gilg called on three medical experts– Gregory Carter, MD, and Carl Hart, PhD, and Philip Denny, MD — who testified that cannabis is one of mankind's oldest, safest therapeutic substances. The federal classification of it as both "very dangerous" and "lacking medical use" is untenable.

Government witness Bertha Madras, PhD – a deputy drug czar under President George W Bush – argued in briefs and on the stand last week that marijuana fails to measure up as a medicine. She equated the drug to heroin, saying don't smoke poppies for pain relief.

About 22,114, Americans will die from prescription drug overdoses this year, and heroin-mimicking opioid drugs kill more Americans than any other prescription drug. Cannabis has no lethal overdose level, and zero recorded deaths from overdose in human history.

Gilg and Burke, both members of the NORML Legal Committee, argue in Schweder the U.S. can't ignore Colorado and Washington pot legalization, and also maintain pot is a schedule 1 drug — as dangerous as heroin, LSD and methamphetamine.

Either marijuana is as dangerous as heroin and prosecutors should shut down Colorado and Washington's recreational markets, or it's not, and the classification is wrong, they argue.

This fall, Attorney General Eric Holder said Congress should revisit marijuana's schedule 1 classification in light of modern science.

Judge MuellerJudge Mueller — a 2010 Obama appointee to the bench and former Sacramento councilmember — will review follow-up briefs from both sides and could rule in the next couple months, writes Jeremy Daw for The Leaf Online.

If Judge Mueller upholds defense's motion, the ruling would apply only to Schweder, and the U.S. government could likely appeal the decision to a higher court.

But it would set a narrow precedent. And in a nation where about half of Americans support regulated adult access to cannabis, and more than 80 percent support medical marijuana, Schweder represents another chance to illustrate how the U.S. government puts politics ahead of sicence with regard to cannabis, activists say.

Gilg and Heather Burke are defending seven men on felony marijuana cultivation charges that carry up to 15 years in prison per defendant. Three of the defendants have already been held in prison for three years. The federal government spends an estimated $41 billion a year — including lost tax revenue— in the war on marijuana. Colorado will gross an estimated $68 million in legal cannabis taxes this year.

President Richard Nixon placed cannabis, dubbed "marijuana", in the schedule 1 of drugs in 1971, overriding the recommendations of his hand-picked Shafer Commission, which recommended de-scheduling it. Marijuana has remained there ever since. Americans consume 2,500-5,000 metric tons of cannabis per year, and half have tried the plant.

Last year, the DEA again denied a petition to reschedule pot, but the federal government is encountering unprecedented pushback in its assertions cannabis has no medical value. The government already patented marijuana molecules. One in 20 California adults are estimated to have used medical cannabis to treat a serious illness, and 92 percent of them thought it helped.Twenty-three states and Washington D.C. have medical marijuana laws.

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