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The Law Offices of Michael F. Hupy

CHALLENGING THE CLASSIFICATION OF MARIJUANA ON CONSTITUTIONAL GROUNDS
by Michael F. Hupy

Scientific research, legislative enactments and recent court decisions have put the constitutionality of the classification of marijuana as a Schedule I drug in a precarious position. This was demonstrated recently when what started out as the largest drug case in Wisconsin history ended with the prosecution asking the court to dismiss all charges against both defendants. The defendants, Charged with possession of 3,300 pounds of marijuana with an estimated street value of $1.3 million, had the burden of proving, beyond a reasonable doubt, that Wisconsin's drug classification scheme was not constitutionally valid.

The Act the defendants were challenging has kept marijuana in Schedule I since its passage in 1971, along with such opiate derivatives as heroin and morphine and LSD, a hallucinogen. This parallels placement of marijuana in the highest schedule of the Federal Uniform Controlled substances Act of 1970. Both acts intended that marijuana's scheduling position be a temporary one, pending further research then underway on its physical and psychological effects. Those comprehensive studies have been completed, and a number of major studies have been conducted since in the United States and several foreign countries, leading marijuana researcher Dr. Norman Zinberg of Harvard Medical School to state, "We know as much about marijuana (today) as about any other drug." 1

While neither the federal government nor Wisconsin's legislature has acted to reclassify marijuana in the last twelve years, three days of scientific testimony in the case of State v. Whitehall and Hadden, together with over 100 documents and other exhibits and a lengthy defense brief, apparently convinced the prosecution of the precarious position of the classification of marijuana and the dangers of a decision on the constitutionality of the Wisconsin Statute that might have statewide application.

In support of its theory that the classification of marijuana is irrational and arbitrary, the defense called three expert witnesses: Dr. Lester Grinspoon of Harvard Medical School, Robert Randall, president of the Alliance For Cancer Therapeutic (ACT), and Dr. Andrew Kane, a Milwaukee, WI, Psychologist.

IRRATIONAL, ARBITRARY

Resistance on both the federal and state levels to reclassification of marijuana, despite recent scientific studies, gave the defense ample room to maneuver on a constitutional level in its attack on the Wisconsin marijuana statute. The challenge focused on the tests of Schedule I substance- "a high potential for abuse, no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision."

The testimony and scientific evidence presented established that marijuana has a relatively low potential for abuse, has widely accepted medical use in treatment in the United States and does not lack accepted safety for use in treatment under medical supervision. With this factual setting, the defense argued that the statutory scheme under which marijuana is classified as a Schedule I substance in Wisconsin has no rational basis, and such classification violates principles of the United States and Wisconsin Constitutions, guaranteeing due process and equal protection and prohibiting cruel and unusual punishment.

The defense did not advocate "decriminalization" or "legalization" of the drug. Instead, we chose to attack the placement of marijuana in Schedule I as irrational and arbitrary.

MARIJUANA'S POTENTIAL FOR ABUSE

Grinspoon was called upon to draw conclusions about marijuana's relative potential for abuse compared to other drugs in Schedules I-V, based upon hundreds of studies and research of his own. He concluded that marijuana should not be scheduled as long as alcohol and tobacco are not since it has less potential for abuse. As a medicine, according to Grinspoon, it should be in Schedule V, which includes cough medicines containing codeine. The tests for a Schedule V drug in Wisconsin are "low potential for abuse, currently accepted medical use in treatment in the United States and limited physical or psychological dependency liability relative to the controlled substances listed in Schedule IV."

For Grinspoon, an associate professor of psychiatry at Harvard Medical School and one of the country's leading experts on drug usage and its effects on humans, dispelling misconceptions about marijuana's dangers and benefits is not new. His encyclopedic work, Marijuana Reconsidered, 2 which describes marijuana as possessing the least dangerous effects of all mind-altering drugs, was cited in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), wherein the court found Michigan's classification of marijuana unconstitutional. The dissent in State v. Kantner, 53 Haw, 327, 493 P.2d 306 (1972), cited Grinspoon's research as evidence that the social harm connected to marijuana is insufficient to justify making mere possession a crime.

Some of the points made by Grinspoon during his testimony on the subject of marijuana's potential for abuse include:

Grinspoon concluded that is was "neither reasonable nor rational" to classify marijuana in Schedule. It was his opinion that it is not as potentially harmful as alcohol or tobacco and as for its potential abuse, it "clearly isn't in the same ball park" with Schedule I substances, has less than almost every substance in Schedule II and less than many in Schedules III through V.

ACCEPTED MEDICAL USE IN THE UNITED STATES

Grinspoon testified that marijuana had wide acceptance in medicine up to 1937, including the status of "pain-killing substance of choice" on Civil War battlefields. It was also a widely-used sleeping medicine, migraine headache remedy and an aid in child birthing.

His testimony also established marijuana's accepted medical uses in the United States today, particularly for cancer patients suffering the side effects of chemotherapy and victims of glaucoma. For treating chemotherapy side effects, "there is nothing as effective as cannabis is...," and for many glaucoma patients, traditional approaches do not match the effectiveness of marijuana.

SAFETY IN MEDICAL USE

It is possible to use marijuana "quite safely," Grinspoon testified. "What is strange about marijuana is that ...of the drugs that we deal with, it is remarkably safe." He stated that it is safer to use than many substances in lower schedules, including codeine cough syrup in Schedule V.

SAVED EYESIGHT

Randall, president and lobbyist for ACT, an organization helping patients who require access to marijuana to obtain it legally, agreed with Grinspoon that marijuana does not have a high potential for abuse. Randall has had open angle-wide angle glaucoma since 1968, was first diagnosed as having it in 1972 and has used marijuana on a consistent basis to treat it since 1974. His condition since that time has remained stable. Controlled medical studies at Johns Hopkins University concluded that left on conventional glaucoma medications, "my disease would progress, and the consequences of that progression would be blindness," Randall testified. He has received marijuana through a Washington D.C. pharmacy since 1978, the first person granted legal use of marijuana on the grounds of medical necessity, U.S. v. Randall, 20 Crim. L. Rep. 2299, 104 Daily Wash. L. Rep. 2249 (D.C.Super. Ct. 1976). According to Randall, "It is not physiologically addicting in any way, and abuse doesn't cause serious harm to the individual who is using it, and I have personally experienced no such harm which is clinically verifiable."

EXTREMELY USEFUL

The testimony of Dr. Andrew W. Kane, clinical associate professor of psychology at the University of Wisconsin-Milwaukee and associate clinical professor in the Department of Psychiatry at the Medical College of Wisconsin, indicated that all substances in Schedules I and II have a higher potential for abuse than marijuana. As for safe medical use, the only drugs in Schedule III with as much potential medical use, according to Kane, are codeine and morphine.

Kane, president of the Wisconsin Psychological Association, testified that forty-two Wisconsin physicians are currently using marijuana in the treatment of 400 cancer patients undergoing chemotherapy, describing the drug as "very useful." There is also "strong evidence" that it is useful to treat glaucoma, Kane stated.

There is "little or no danger to any individual who used marijuana in a medically-supervised setting," according to Kane, and there is a "very low potential for abuse, particularly when compared with the wide variety of legal drugs with or without prescription that are available."

He said dependence on tobacco was more likely and that alcohol has a greater potential for abuse, "almost infinitely greater due to psychological and physical dependence, plus physical deterioration."

NEW STATUTE ENACTED

During the pendency of our motion in the Whitehall and Hadden case, Wis. Stat. Sec. 46.60 (1982) was enacted. The defense then amended its motion to challenge the Wisconsin classification scheme on the additional ground that it conflicted with Sec. 46.60, which not only authorizes the medical use of marijuana but requires the state Controlled Substances Board to aid physicians in obtaining marijuana for their patients. The defense asserted that passage of Sec. 46.60 estopped the state from maintaining that marijuana meets the "no currently accepted medical use" definition of a Schedule I substance.

MEDICAL USE WIDELY ACCEPTED

Thirty-four states, the latest being Massachusetts in mid-April, have passed legislation permitting the use of marijuana and/or THC for medical purposes, particularly in treatment of glaucoma and to relieve nausea connected with chemotherapy. Measures are pending in Hawaii and Missouri, but they are given little chance of passage. In addition, Michigan and New Mexico have passed resolutions calling on Congress to remedy federal prohibitions against the use of marijuana in medical treatments. A resolution in Hew Hampshire is pending.

The use of marijuana for cancer chemotherapy patients has been given high marks by three states- New Mexico reporting a 90 percent success rate. New York 80 percent and Georgia 73 percent.

On the federal level, a bill, H.R. 2282, which would provide for the therapeutic use of marijuana in situations involving life- threatening or sense-threatening Illnesses and reclassify it down to Schedule II was reintroduced in march with the backing of 47 Democratic and Republican co-sponsors. It has been referred to the House Health Subcommittee. Essentially the same bill, H.R. 4498, was introduced in 1981, but hearings on it were never held.

CASE LAW SUPPORT

Courts in the early 1970's appeared receptive to arguments challenging the rationality of marijuana scheduling laws. Beginning in 1969, when the court in U.S. v. Kleinsahler, 306 F.Supp. 311 (E.D.N.Y. 1969), expressed doubt about the wisdom or justice of treating youths convicted or possession of marijuana the same as those convicted of selling narcotics-yet left a remedy for the injustice to congress-judges have found state marijuana laws void of a rational basis grounded in medical and scientific evidence.

The court in State v. Zornes, 78 Wash. 2d 9, 469 P.2d 552 (1970), recognized marijuana as non-addictive. People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971), called the drug's Schedule I classification arbitrary and without a rational basis in violation of equal protection rights. People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), held Michigan's punishment for the first offenders in marijuana sale or possession cases to be cruel and unusual punishment. The court in Ravin v. State, 537 P.2d 494 (Alaska 1975), held that possession of marijuana by an adult for personal consumption in the home fell under the constitutionally- protected right to privacy, stating that marijuana was not a public health problem of any significant dimension.

Perhaps the strongest support for proponents of rational change in marijuana laws came with Sinclair, 194 N.W.2d at 886, in which the court tested the constitutionality of a ten year maximum sentence for possession of two joints. Stating the "we can no longer allow the residuals of that early misinformation to continue choking off a rational evaluation of marijuana dangers," the court held that marijuana's classification with opiates in Schedule I was a violation of the constitutional right to equal protection and the right to liberty and the pursuit of happiness.

It was also during this time that almost all states, including Wisconsin, reduced penalties for possession of small amounts of marijuana from felonies to misdemeanors. Since 1973, when Oregon became the first state to decriminalize possession of small amounts of marijuana, 11 states have eliminated incarceration as a penalty for simple possession.

During this same period, however, case law was developing that found marijuana's classification constitutional. In Kantner, 493 P.2d 306, the court said marijuana has many of the properties of a narcotic under scientific definition and held its placement in Schedule I not to be a violation of equal protection and due process rights. It also held that marijuana use does not fall within the "penumbra" of fundamental rights.

U.S. v. Kiffer, 477 F.2d 349 (N.Y. 1973), held the drug's classification to be not so arbitrary or irrational as to justify overturning sentences for possession of two tons with intent to deliver. The majority said any court asked to undertake review of the multiple social, economic and political considerations that usually underlie legislative decisions, as they do in most constitutional challenges to marijuana laws should do so with "caution and restraint." It concluded that the state of knowledge of marijuana's effects at the time was still incomplete and marked by disagreement and controversy.

SHIFT SEEN

A spate of federal cases since then have followed these decisions, including U.S. v Gaertner, 583 F.2d 308 (Wis. 1978) Nat'l Org. for the Reform of Marijuana Laws v. Bell, 488 F.Supp. 123 (D.D.C. 1980), Wolkind v. Selph, 495 F.Supp. 507 (D.C. Va. 1980) and U.S. v. Ervin, 602 F.2d 1183 (La. 1979), all holding that the classification of marijuana was not irrational. On the state level, beginning with State v. Rao, 171 Conn. 600, 370 A.2d 1310 (1976), rulings that marijuana's classification involved no equal protection violations were issued in Alabama (Hall v. State, 354 So. 2d 823 (Ala. App. 1977)); Arkansas (Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979)); California (Nat's Org. for the Reform of Marijuana Law v. Gain, 161 Cal.Rptr. 181, 100 Cal App. 3d 586 (1979)); Florida (Albo v. State, 379 So. 2d 648 (Fla. 1980));Illinois (Illinois NORML v. Scott, 66 Ill. App. 3d 633. 383 N.E.2d 1330 (1978), People v Brisco, 78 Ill. App. 3d 282, 397 N.E.2d 160 (1979), People v. Rhoades, 74 Ill. App.3d 247, 392 N.E.2d 923 (1979)); Indiana (Ross v. State, 172 Ind. App. 166, 360 N.E.2d 1015 (1979)); Michigan (People v. Schmidt, 86 Mich. App. 574 272 N.W.2d 732 (1978)); Minnesota (State v. Vail, 274 N.W.2d 127 (Minn. 1978)); Missouri (State v. Mitchell, 563 S.W.2d 18 (Mo. 1978)); Nebraska (State v. Infante, 199 Neb. 601, 260 N.W.2d 323 (1977), State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977)) North Dakota (State v. Boushee, 284 N.W.2d 423 (N.D. 1979)); South Dakota (State v. Strong, 245 N.W.2d 277(S.D. 1976)); and Washington (State v. Dickamore, 22 Wash. App. 851, 592 P.2d 681 (1979)).

Prohibition of in-home use was upheld in Arizona (State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977)); Louisiana (State v. Chrisman, 364 So.2d 906 (La. 1978)); Massachusetts (Marcoux v. Att'y Gen., 375 Mass 63, 375 N.E.2d 688 (1978)); and Washington (State v. Seagull, 26 Wash. App. 58, 613 P.2d 528 (1980), State v. Smith, Wash. 2d 329, 610 P.2d 869 (1980)).

Courts in Alaska (Frazier v. State, 566 P.2d 1023 (Alaska 1977)). Shine v. State, 596 P.2d 16 (Alaska 1979)); Arizona (Murphy, 570 P.2d at 1073); California (Gain, 161 Cal. Rptr. at 181); Illinois (Brisco, 397 N.E.2d at 164); Louisiana (Chrisman, 364 So.2d at 907); Nebraska (Kells, 259 N.W.2d at 20); and Washington (Smith, 610 P.2d at 880) held its possession outside right to privacy protections.

Courts in several states found marijuana's classification not to be arbitrary, irrational nor a violation of due process, including Arkansas (Bushong, 589 S.W.2d 560); Arizona (Murphy, 570 P.2d at 1074); Colorado (People v.Bloom, 195 Colo. 246, 577 P.2d 288 (1978); Indiana (Ross, 360 N.E.2d at 1018); Louisiana (Chrisman, 364 So.2d at 907); Minnesota (Vail, 274 N.W.2d at 136); Michigan (Schmidt, 272 N.W.2d at 733); Missouri (Mitchell, 563 S.W.2d at 20); Nebraska (Infante, 260 N.W.2d at 324); North Dakota (Boushee, 284 N.W.2d at 424); Oklahoma (Evans v. State, 569 P.2d 503 (Okla. Crim. 1977) Van Den Brand v. State, 578 P.2d 1207 (Okla. Crim. 1978), and Washington (State v. Gerry, 23 Wash. App. 166, 595 P.2d 49 (1979).

THE FUTURE

It is likely that state legislatures, as more scientific evidence comes in, will continue to reduce criminal penalties for possession of small amounts of marijuana, and there should be an increase in the number of states which decriminalize possession of small amounts.

Reclassification of marijuana out of Schedule I will be slower in coming, largely because of federal bureaucratic intransigence on the matter. Compared to Congress' quick action in 1937 in passing the Marijuana Tax Act, based on erroneous scientific evidence and racism, and despite court prodding, the Drug Enforcement Administration (DEA) has consistently refused to reclassify on the grounds that not enough evidence is in and that controversy still abounds.

There appears, however, to be a more positive reception to giving glaucoma and cancer chemotherapy patients greater access to marijuana for treatment of their diseases. Medical use of synthetic THC, the active ingredient in marijuana, has already received Food and Drug Administration (FDA) approval and awaits DEA approval. FDA and the Department of Health and Human Services has yet to act on granting patients the same access to marijuana, and the House bill just introduced, while having bipartisan support, generated little interest in Congress during the last session.

Because federal and state legislative bodies have lagged so far behind the scientific evidence as to the proper classification of marijuana, defense attorneys have an opportunity to challenge the constitutionality of the classification of marijuana. Hopefully, the end result of such a challenge will be a declaration that the classification is unconstitutional, a prosecutor abandoning his or her case or some other favorable resolution for your client.

1. Zinberg, "The War Over Marijuana," Psychology Today, Dec. 1976, at 45, 102

2. L. Grinspoon, "Marijuana Reconsidered" (2d ed. 1977)