Amicus Briefs Filed in Medical Marijuana Decriminalization Case

Following a July 2 petition for a writ of certiorari filed by three individuals who “require daily administration of medical cannabis to live,” seven amicus curiae briefs have been submitted in support of the petitioners by more than a dozen individuals and organizations. The petition asks the United States Supreme Court to grant certiorari and answer in the affirmative whether the current federal classification of and criminal punishment scheme attached to medical marijuana cultivation, sale, possession, and use are unconstitutional.

The amicus briefs were filed between Sept. 4 and 15 by National Organization for the Reform of Marijuana Laws, seven members of the House of Representatives, International Cannabis Bar Association, Athletes for Care, After the Impact Fund, Canna Research Foundation, NFL Sisters In Service, Inc., Isiah International, LLC, National Cannabis Industry Association, Arcview Group, The Last Prisoner Project, CReDO Science, The American Journal of Endocannabinoid Medicine, Ethan Russo M.D., Jahan Marcu Ph.D., Americans for Safe Access, Minority Cannabis Business Association, and Minorities for Medical Marijuana, Inc.

The petitioners’ original claims centering on the alleged misclassification of cannabis as a Schedule I substance under the Controlled Substances Act (CSA) alongside “life-threatening” drugs like heroin, were dismissed by the district court. The petitioners argued that Schedule I classification violates their Due Process rights because, backed by medical consensus and contrary to respondent Drug Enforcement Administration’s (DEA) steadfast belief, it is in fact a life-saving drug.

The dismissal was affirmed by the Second Circuit Court of Appeals in April, which held that the “Petitioners’ prayer for relief—a declaration that the classification of cannabis is unconstitutional and a corresponding injunction against enforcement—is really a mere request to de-schedule cannabis,” according to the petition. The appellate court ruled that before proceeding with litigation, the petitioners first had to exhaust their administrative remedies by filing a DEA de-scheduling petition.

The recently filed amicus briefs bring additional viewpoints to the table, all in support of the federal decriminalization of medical marijuana. For example, the International Cannabis Bar Association (INCBA), a California mutual benefit membership organization that seeks to “improve access to quality legal services for the cannabis industry and to facilitate the practice of law for attorneys serving patients and companies who serve them,” argues that the petitioners need not ask the DEA to declassify marijuana.

Specifically, INCBA contends that the Second Circuit erred in requiring the petitioners to exhaust their administrative remedies because “the litigant’s interests in immediate judicial review outweigh the government’s interests in efficiency or administrative autonomy.” Furthermore, INCBA argues, petitioning the DEA is an exercise in futility. The organization points out that since the CSA’s 1970 enactment, 10 cannabis reclassification petitions have been made, all of which were denied, with the DEA taking, on average, nine years to process each one.

The seven representatives’ brief argues that the status quo “infringes on constituents’ Constitutional rights, including the right to seek life-saving medical care, the right to cross state lines with a medical cannabis prescription valid in the originating state, and even the right to access vital government financial assistance during a pandemic despite operation of state-legal cannabis-related businesses.”

The representatives also contend that there is “ample evidence that the qualifications for   Schedule I classification are simply not met,” pointing to the majority of states’ adoption of medical and recreational marijuana use laws, FDA-approval of cannabis treatments, and a multitude of studies demonstrating safe and effective uses for medical marijuana.

For its part, the Last Prisoner Project (LPP), a non-profit organization that advocates for individuals incarcerated for nonviolent marijuana offenses and those suffering the lingering consequences of a marijuana offense on their criminal record, argues that the drug’s criminalization has caused “racial disparities in the justice system.” LPP contends that “(t)he over-policing of low-income and minority neighbor-hoods, and the disproportionate social, economic, and civil disenfranchisement of communities of color are intertwined with a national policy of federal marijuana illegality.”

The National Organization for Reform of Marijuana Laws is represented by the Law Offices of David Clifford Holland P.C. and Cuddy & Feder LLP. The representatives are represented  by Cozen O’Connor. The International Cannabis Bar Association is represented by Duane Morris LLP.

Athletes for Care, After The Impact Fund, Canna Research Foundation, NFL Sisters In Service, Inc., Isiah International, LLC are represented by Ansell Grimm & Aaron, P.C. The National Cannabis Industry Association and the Arcview Group are represented by Wilson Elser Moskowitz Edelman & Dicker, LLP.

The Last Prisoner Project is represented by Porzio, Bromberg & Newman, P.C. CReDO Science, The American Journal of Endocannabinoid Medicine, Ethan Russo M.D., and Jahan Marcu Ph.D. are represented by Hoban Law Group.

Americans for Safe Access is represented by Goodwin Procter LLP. The Minority Cannabis Business Association and Minorities for Medical Marijuana, Inc. are represented by Fox Rothschild LLP.

The petitioners are represented by Hiller, PC and the Law Offices of Joseph A. Bondy

The federal government is represented by Acting Solicitor General Jeffrey B. Wall.