Challenging Marijuana’s Classification as a Schedule I Controlled Substance
What do George Washington, Thomas Jefferson, John Adams, James Madison, James Monroe, Abraham Lincoln, John F. Kennedy, Jimmy Carter, Bill Clinton, and Barack Obama, all have in common? (Hint—it’s not the U.S. presidency.) The answer: all have grown, encouraged others to grow, or have used marijuana.
While proponents of marijuana include some of America’s greatest statesmen, they were nowhere close to being innovators of its use. For thousands of years, millions—and possibly billions—of people have used marijuana for medical, spiritual, and recreational purposes. So, of the millions of people throughout history that have used cannabis, how many recorded deaths have been attributed to its use? The answer: zero—not a single recorded death recorded resulted from the use of marijuana. On that note, it’s safe to say that the federal government outlawed cannabis for reasons other than protecting the health of Americans.
Unfortunately, many scholars note that marijuana’s de-legalization, which began during the Nixon administration, was pretextual; a way for the federal government to arrest and vilify its enemies—African Americans and protestors of the Vietnam war.
To justify criminal prosecutions for the possession of marijuana, the DEA established marijuana as a Schedule I narcotic—the most severe classification in which a substance may be placed.
Criteria for a Schedule I Classification
The federal government along with most states, including Minnesota, define Schedule I drugs as those that have a: 1) “high potential for abuse”; 2) “no currently accepted medical use in the United States”; and 3) “a lack of accepted safety for use under medical supervision.”
Most challenges to marijuana’s placement under Schedule I focus on the second element—whether it has an “accepted medical use.”
The Accepted Medical Use Rule
To date, twenty-eight states, including Minnesota, allow certain people to obtain marijuana for medical purposes. However, the federal government still insists that marijuana has “no currently accepted medical use.” Most shocking: Minnesota—which allows the use of cannabis for the treatment of certain debilitating diseases, such as cancer and autism—places marijuana under its own Schedule I classification. (You read correctly: Minnesota maintains that cannabis has “no currently accepted medical use” while it licenses patients to treat their illnesses with marijuana.)
While the Controlled Substances Act provides that Schedule I drugs have “no currently accepted medical use, the Act never define what that means. However, courts use the five-factor test established by DEA to determine if a substance has a current medical use:
1) whether the drug has a known and reproducible chemistry,
2) whether adequate safety studies were performed,
3) if there were well-controlled and adequate studies showing marijuana’s efficacy,
4) whether marijuana was accepted by qualified experts, and
5) whether scientific evidence of marijuana’s efficacy was widely available.
To establish that a valid medical use exists requires a challenger to prove, beyond a reasonable doubt, as to all five criteria.
Why are Challenges to Marijuana’s Scheduling Failing in the Courts?
The short answer: rational-basis scrutiny provides a nearly impossible hurdle for challengers to overcome.
In U.S. v. Pickard, the Appellant challenged the constitutionality of marijuana as a Schedule I narcotic. Both parties provided expert testimony as to the five-factors determining whether marijuana has a “currently accepted medical use.” The Appellant’s experts testified that a “majority” of qualified professional think marijuana has a medical use. The State’s experts proffered testimony to the contrary—that a “substantial majority” of scientist maintain that, “at this time, marijuana has no confirmed medical application.” Because the conflicting testimony, the court concluded that “Congress could rationally place marijuana under Schedule I on grounds that is “has no established medical value.”
Challengers to marijuana’s scheduling have been unsuccessful in Minnesota courts despite that its version of rational basis scrutiny is “more stringent” than its federal counterpart. Minnesota requires “a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals.”
In State v. Thiel, a 2014 case before the Minnesota Court of Appeals, the Appellant was charged with possession of a controlled substance for having two mason jars of marijuana. Appellant claimed he used marijuana as a form of “affordable health care”—arguing that affordable health care was a fundamental right protected by the U.S. and Minnesota Constitutions. In arguing that Minnesota’s placement of Marijuana under Schedule I violated equal protection laws because “possessors of medical marijuana are similarly situated to possessors of Schedule II substances” (drugs with recognized basis in medical use), he urged the court to exercise strict-scrutiny in reviewing the case. The court disagreed and determined that rational-basis review was proper because affordable health care does not entail a fundamental right. Under a rational-basis analysis, the court held that Appellant, failed to demonstrate that marijuana’s placement under Schedule I “treats similarly situated people differently” and thus, equal protection laws were not violated. Although U.S. v. Pickard is never mentioned in the Thiel decision, the court shows similar reasoning:
Given the continuing debate over the extent of the use of marijuana for medical purposes, there is a legitimate state purpose in classifying marijuana as a Schedule I substance and treating possessors of marijuana for medical use differently than possessors of Schedule II substances for medical use.
Given the growing scientific evidence surrounding marijuana’s efficacy in treating diseases and a general lack of society’s dissent to its legalization, it’s plausible that marijuana will be rescheduled at some point. However, it is highly unlikely that marijuana’s legalization will come from courts, who are reluctant to make such a decision in absence of express approval by the legislature.
Brian Aanestad is a law clerk at Ambrose Law Firm, PLLC and a third-year law student at Mitchell Hamline School of Law in St. Paul, Minnesota. Upon graduation, he will sit for the bar exam this July and intends to be a criminal defense attorney shortly thereafter.
St. Paul Criminal Defense Attorney; Drug Crimes Lawyers Minnesota; and St. Paul MN Criminal Lawyer.
 Washington, et al v. Sessions, et al, WL 3187333 (S.D.N.Y. 2017), Complaint, filed July 24, 2017.
 Id., (citing, Robert Deitch, Hemp – American History Revisited: The Plant with a Divided History 3 (2003)); 10,000-year History of Marijuana use in the World, Advanced Holistic Health, http://www.advancedholistichealth.org/history.html).
 Id., (citing, N.Y. Daily News, A. Edelman, Nixon Aide: “War on Drugs” was tool to target “black people” (March, 2016); Harper’s Magazine, D. Baum, Legalize it All: How to Win the War on Drugs (April 2016).
 U.S.C. § 812(b); State v. Thiel, 846 N.W.2d 605, 613 (Minn. Ct. App. 2014) (quoting, Minn. Stat. § 152.02, subd. 7(1) (2010) (unchanged in 2014 amendments)).
 See generally, e.g., Thiel, 846 N.W.2d 613; State v. Hanson, 468 N.W.2d 77, 78 (Minn. Ct. App. 1991).
 State v. Hanson, 468 N.W.2d 77, 78 (Minn. Ct. App. 1991) (noting that Minnesota’s statutory classification of marijuana under Schedule I means the legislature finds marijuana has “no currently accepted medical use. . . .”) (citing, Minn. Stat. § 152.02, subd. 7(1) (1990)).
 Uelmen and Haddox, Scheduling findings: accepted medical use, 1, Drug Abuse and the Law Sourcebook § 1:11 (citing 57 Fed. Reg. 10499 (1992)).
 See, Conant v. McCaffrey, 172 F.R.D. 681, 686 n.2 (N.D. Cal. 1997) (citing, Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131, 1137 (D.C. Cir.1994)).
 Uelmen and Haddox, Scheduling findings: accepted medical use, 1, (citing, 76 Fed. Reg. 40552 (2011); 57 Fed. Reg. 10499 (1992)).
 100 F. Supp. 3d 981 (E.D. Cal. 2015).
 Id., at 1007.
 See, Thiel, 846 N.W.2d at 614.
 Id. (noting that courts are “unwilling to hypothesize a rational basis to justify a classification”) (citing Russell, 477 N.W.2d at 888–89)
 Id., at 609
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