ORDER
It hаs been forty-five years since Congress passed the Controlled Substances Act, including marijuana in Schedule I. Defendants say the law as passed can no longer stand. The government says that is not for this court to decide. To say the landscape with respect to marijuana has changed significantly since 1970, in many ways, is an understatement. While the court is not blind to the practical context in which it operates, its duty as a resident of the third branch of our republican form of government is to resolve the legal questions presented by the parties, fairly and evenly, not as a maker of public policy. The court fulfills this duty without respect to who is arguing what position, or what the newspapers, blogs and commentators say; it does so while putting aside preconceptions arid dispositions, likes and dislikes, bias and prejudice. Because defendants’ motion challenges a decision made by Congress, which is the first, representative branch of government, the court treads lightly as it is required to do. In performing its duty the court takes the factual record as the parties have developed it through the introduction of documentary evidence and, in this case, an evidentiary hearing. Having approached defendants’ constitutional challenges to marijuana’s Schedule I status with an open mind, the court had to be prepared to grant their motion to dismiss if the law and facts supported that decision. At some point in time, in some court, the record may support granting such a motion. But having carefully considered the facts and the law as rеlevant to this case, the court concludes that on the record in this case, this is not the court and this is not the time.
I. BACKGROUND
The motion before the court was brought originally by defendant Brian Justin Pickard; he moves to dismiss the government’s indictment. (EOF No. 199.) The remaining defendants join in the motion. Defendants argue the indictment must be dismissed because the classification of marijuana
On October 20, 2011, sixteen individuals were indicted for conspiracy to manufac
On March 25, 2014, the court granted defendants’ request for an evidentiary hearing. (ECF No. 262). The evidentiary hearing occupied five days between October 24, 2014 (ECF No. 347) and October 30, 2014 (ECF No. 351). During the evi-dentiary hearing, the court heard testimony from Gregory T. Carter, M.D., Carl L. Hart, Ph.D., Philip A. Denney, M.D., Christopher Conrad, and Bertha K. Madras, Ph.D. (See ECF Nos. 347-350). After the evidentiary hearing, the court sеt a post-evidentiary hearing briefing schedule and a date for closing arguments. (ECF Nos. 359, 371.) The government filed its post-evidentiary hearing brief on December 31, 2014 (ECF No. 374), and defendants filed theirs on January 5, 2015 (ECF No. 378). The parties replied on January 21, 2015. (ECF Nos. 381, 382.) The parties presented their closing arguments on February 11, 2015, after which the court submitted the motion (ECF No. 386).
In addition, on February 6, 2015, defendants filed a request for judicial notice, asking that the court take notice of (1) certain statements made by the United States Surgeon General on February 4, 2015, and (2) the introduction of H.R. 5762, the Veterans Equal Access Act of 2014, in the House of Representatives on November 20, 2014. (ECF No. 385 at 8-9.) The court takes judicial notice of the fact that the U.S. Surgeon General, during a televised interview on “CBS This Morning” on February 4, 2015, made a statement about marijuana’s efficacy for some medical conditions and symptoms. Fed.R.Evid. 201; see Davis v. Granger, No. 12-1746,
Defendant also asked the court to consider a new piece of evidence identified as exhibit AAA, a study published on January 28, 2015, which defendant argues “directly refutes the methods and findings” of government exhibit 209. (Id. at 9-10.) The court grants that request under the rule of completeness. See United States v. Castro-Cabrera,
II. LEGAL STANDARD ON A MOTION TO DISMISS
Under Federal Rule of Criminal Procedure 12(b), “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” There is no prohibition against the consideration of extrinsic evidence for purposes of a Rule 12(b) motion to dismiss. Rule 12(b) “permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion.” United States v. Covington,
“[A] district court may make preliminary findings of fact necessary to decide the questions of law presented by pretrial motions so long as the court’s findings on the motion do not invade the province of the ultimate finder of fact.” United States v. Shortt Accountancy Corp.,
III. JURISDICTIONAL CONSIDERATIONS
A. Standing
1. The Parties’ Arguments
The government contends defendants lack standing to argue that “the continued inclusion of marijuana as a Schedule I controlled substance in Title 21 of the federal statutes passes constitutional muster” (ECF No. 271 at 3), because “neither their criminal liability nor their eventual criminal sentence depend on marijuana’s status as a Schedule I substance” (ECF No. 279 at 1). The government points out that defendants are charged with violating 21 U.S.C. § 841(a), which applies to any controlled substance; thus, it says “their charges are not dependent upon marijuana’s status as a Schedule I substance.” {Id. at 1.) The government argues that the sentences provided for in the statute “apply regardless of whether marijuana is on Schedule I” as long as “marijuana is treated as a controlled substance at all.” {Id. at 1-2) (emphasis in original). “Put plainly, a decision holding that it is unconstitutional for marijuana to be treated as a Schedule I substance will have no impact on whether [defendants go to jail or for how long.” {Id. at 2.)
Defendants counter that they are “not petitioning this [c]ourt to reschedule marijuana, but rather [are] contesting the constitutionality of [21 U.S.C. § 812(c)(10), (17) ], the Congressional Act which classifies marijuana' as a Schedule I [cjontrolled [s]ubstance. Should the defense prevail, these statutory provisions are deemed invalid, and thus marijuana and THC would be removed from the CSA, not simply
2. Legal Standards
Article III of the Constitution limits the jurisdiction of federal courts to “cases” and “controversies.” See, e.g., Clapper v. Amnesty Int’l, — U.S. - — -,
3. Analysis
Here, defendants have established Article III standing. Defendants are charged with conspiracy, 21 U.S.C. § 846, to manufacture marijuana, a controlled substance, id. § 841(a)(1). (ECF No. 30.) The indictment specifies defendants allegedly conspired to manufacture at least 1,000 marijuana plants on private property. (Id. at 2-4.)
Defendants have shown concrete and imminent injury: incarceration as a result of their charged violations of the CSA, if they are convicted. See Spencer v. Kemna,
As to the redressability element of standing, defendants must show that it is “ ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Lujan,
Having established (1) injury-in-fact, (2) causation, and (3) redressability, defendants have sufficient Article III standing to raise a constitutional challenge to the inclusion of marijuana as a Schedule I substance under 21 U.S.C. § 812(b)(1).
The government’s citation to three cases does not alter this conclusion. The cases are United States v. Osburn,
In McWilliams, the defendant apparently was producing marijuana for intrastate medical purposes, in compliance with California’s Compassionate Use Act, Cal. Health & Safety Code § 11362.5. 138 Fed. Appx. at *2. He pled guilty to manufacturing marijuana and then appealed the district court’s denial of his motion to dismiss the indictment, apparently arguing, among other things, for reclassification: “the classification of marijuana as a ‘Schedule I’ controlled substance, rather than in a less restrictive classification, is ‘irration-al...'"
In Osburn, in finding defendants did not have standing to bring an equal protection challenge to the indictment, the panel phrased the question before it as a rescheduling of marijuana, which is not the question before this court.
Tat is distinguishable. Unlike the defendant in Tat, who brought a due process challenge, defendants here challenge the classification of marijuana as violative of their equal protection rights under the Fifth Amendment. Further, in Tat, the-defendant’s argument was based on changes in state laws only; the defendant did not argue that marijuana should be decriminalized, as defendants argue in this case. Moreover, to the extent the government cites Tat for the general proposition that a criminal defendant never has standing to raise a constitutional challenge to a controlled substance’s classification unless that person has sought prior authorization from the Attorney General, this court finds that proposition unsupported by precedent and the argument unpersuasive. As the Second Circuit observed in a case considering the constitutionality of marijuana’s classification more than thirty years ago, the Attorney General “does not have the power to declare the [CSA] unconstitutional.” United States v. Kiffer,
Many cases have proceeded to consider the merits of the same or similar arguments made by defendants in this case. See, e.g., United States v. Fogarty,
B. Jurisdiction
1. The Parties’ Arguments
In its February 13, 2014 opposition to defendants’ motion to dismiss the indictment, the government argued this court had no jurisdiction to hear defendants’ arguments, in light of the provisions of 21 U.S.C. section 877. (ECF No. 224 at 8-10.) Defendants reply section 877 “by its terms аpplies to judicial review of administrative action, not Congressional Acts.” (ECF No. 233 at 7-9.)
During a hearing in March 2014, the court heard argument on the question of subject matter jurisdiction and ruled it had jurisdiction, noting it would remain alert to that question as the case proceeded, in the event its initial determination required reconsideration. (ECF No. 258 at 10.) At hearing, defendants stated their position as follows:
We’re not asking for reclassification. We’re asking that the statute be struck because it is unconstitutional at this particular day and this particular time in the history of the evolution of the evidence with regard to the effects of marijuana.
(Id. at 9.) Defendants have not wavered from this position. (See, e.g., ECF No. 287 at 2 n. 1; ECF No. 382 at 43-44.)
Later in March 2014, the government sought reconsideration of the court’s order granting an evidentiary hearing, stating that it “initially opposed the defendants’ motion to dismiss the indictment on the grounds that the [cjourt lacks jurisdiction to consider any challenge to the scheduling of marijuana” but it now accepts the court’s determination “that jurisdiction is proper.” (ECF No. 264 at 3-4 (citing United States v. Moreno-Morillo,
During the April 2014 hearing on the government’s motion for reconsideration, the court confirmed the government conceded jurisdiction. (ECF No. 275 at 8; see also ECF No. 271 at 2 (“The government now concedes the court has jurisdiction to entertain the defense motion. ...”).) The court explained it did not “think the [government has satisfied its burden of showing the [c]ourt should reconsider” its prior decision; it further explained the grant of a hearing because it “believe[s] there is a question raised about the statutory listing of marijuana as a Schedule I drug in light of the three factors [under 21 U.S.C. § 812(b)(l)(A)-(C) ], applicable to maintaining that substance on the list.” (ECF No. 275 at 8-9.)
In May 2014, the government renewed its section 877 argument. (ECF No. 279.) The government explained that while it previously accepted the court’s jurisdiction to consider any challenge to the statute’s constitutionality (ECF No. 264), the court’s clarification that it is considering a challenge to maintaining marijuana as a Schedule I controlled substance provided a basis for a new argument. (ECF No. 279 at 9.) The government argued 21 U.S.C. section 877 deprives the court of jurisdiction to entertain “whether the continued inclusion of marijuana as a Schedule I controlled substance ... passes constitutional muster,” (ECF No. 271 at 3), because “the agencies assigned by Congress to make such scheduling determinations have decided not to re-schedule or de-schedule it.” (ECF No. 279 at 11-12.) The government argues “[bjecause Con
2. Statutory Framework
The CSA, enacted in 1970, organizes substances into five schedules based on certain factors. See 21 U.S.C. § 812(b). The criteria concern current medical uses, potential for abuse, and possible physical or psychological dependency effects. See id.. Schedule I is at the high end and lists substances including heroin, morphine, peyote, and marijuana. Id. Sch. I(b)(10), (14)-(16); (c)(10), (12). Schedule V is at the low end, and includes any compound containing not more than 200 milligrams of codeine per 400 grams, among others. Id. § 812(b)(5). “Unlike Schedule I drugs, federal law permits individuals to obtain Schedule II, III, IV, or V drugs for personal medical use with a valid prescription.” Americans for Safe Access v. Drug Enforcement Admin.,
The specific statutory findings required for Schedule I listing are as follows:
A. The drug or other substance has a high potential for abuse.
B. The drug or other substance has no currently accepted medical use in treatment in the United States.
C. There is a lack of accepted safety for use of the drug or other substance under medical supervision.
Id. § 812(b)(1).
As noted, when the CSA was enacted, Congress classified marijuana as a Schedule I controlled substance. See 21 U.S.C. §§ 801, 812(b)(1). It did so based, in part, on the recommendation of the Secretary of Health, Education, and Welfare. See Gonzales v. Raich,
All final determinations, findings, and conclusions of thе Attorney General under this subchapter shall be final and conclusive decisions of the matters involved, except that any person aggrieved by a final decision of the Attorney General may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision. Findings of fact by the Attorney General, if supported by substantial .evidence, shall be conclusive.
Id. § 877.
“Despite considerable efforts to reschedule marijuana” through the administrative process, “it remains a Schedule I drug.” Gonzales v. Raich,
3. Analysis
a. Section 877 Generally
The essence of the government’s argument against jurisdiction is that section 877 bars the court from considering
“Federal courts are courts of limited jurisdiction,” possessing “only that power authorized by' Constitution and statute.” Gunn v. Minton, — U.S.-,
Here, the court finds it has jurisdiction to hear defendants’ arguments. Defendants are not seeking reclassification of marijuana, nor have they filed an administrative petition with the Attorney General for such reclassification with a decision pending. Rather, defendants argue 21 U.S.C. section 812 violates the equal protection clause of the Fifth Amendment because marijuana’s classification as a Schedule I substance is arbitrary. (ECF No. 199-1 at 11-12.) A constitutional challenge to the classification of a substance by Congress in a statute is not beyond the jurisdiction of this court. See, e.g., United States v. Rodriquez-Camacho,
b. The Statute is Not Insulated from Constitutional Review
A provision conferring jurisdiction to entertain such a challenge is not required to be included in the CSA itself, nor is the statute insulated from constitutional review by Congressional delegation of authority to an agency to consider an administrative petition. See United States v. Emerson,
In performing the constitutional review requested here, this court is exercising one of its essential duties. See Marburg v. Madison,
The court has jurisdiction to consider defendants’ motion.
C. Consideration of Defendants’ Motion is Not Foreclosed By Binding Precedent
The government cites to the Miroyan case, decided in 1978, in arguing that Ninth Circuit precedent forecloses “a fresh examination of the equal protection challenge, as the Ninth Circuit has already decided the issue.” (ECF No. 264 at 4.) While keenly aware of its duty to follow binding precedent, the court is not persuaded by the government’s argument here. In Miroyan, the defendants were “convicted of conspiracy to possess a controlled substance with intent to distribute, importation of a controlled substance, and possession of a controlled substance with intent to distribute.”
We need not again engage in the task of passing judgment on Congress’ legislative assessment of marijuana. As we recently declared, the constitutionality of the marijuana laws has been settled adversely to [defendants] in this circuit.
Miroyan,
Miroyan does not foreclose a court’s consideration of future constitutional challenges to the classification of marijuana as a Schedule I drug. The case does not stand for the proposition that even if defendants proffer credible evidence, raising serious questions regarding the constitutional soundness of marijuana’s listing on Schedule I, district courts cannot entertain a constitutional challenge.
In Rogers, the case Miroyan quoted, the Ninth Circuit also did not foreclose consideration of future constitutional challenges to marijuana’s scheduling. See
To read Miroyan so broadly as to preclude constitutional challenges to marijuana’s scheduling under any circumstances would be inconsistent with the Supreme Court’s relatively recent observation in Raich, “that evidence proffered by [defendants] ... regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I.”
Miroyan does not stand for the broad, unbendable proposition that district courts are foreclosed from hearing constitutional challenges to the classification of marijuana under the CSA.
IV. EVIDENTIARY HEARING AND RECORD BEFORE THE COURT
A. Standards
A court may grant ah evidentiary hearing where defendants “allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” United States v. Howell,
Here, the court determined that defendants’ moving papers set forth facts with sufficient specificity, supported by declarations, showing there is new scientific and medical information since marijuana’s initial scheduling, raising contested issues of fact regarding whether marijuana’s continued inclusion as a Schedule I substance passes constitutional muster. The court expressly limited the contours of the hearing to “prob[ing] the scientific and medical information.” (Order, ECF No. 271 at 3.)
Defendants’ request for an evidentiary hearing did not threaten to create a situation where the court’s ultimate determination on defendants’ motion to dismiss would “invade the province of the ultimate finder of fact.” Schafer,
At the evidentiary hearing, the court heard live testimony from defense witnesses Gregory T. Carter, M.D. (ECF No. 347), Carl L. Hart, Ph.D. (ECF No. 348), Philip A. Denney, M.D. (id.), and marijuana cultivator and processor Christopher Conrad (ECF No. 349). The government’s witness was Bertha K. Madras, Ph.D. (ECF No. 350). While the hearing transcript and documentary record speaks for itself, the court summarizes portions of testimony most relevant here.
1. Defense Experts
Dr. Carter is a medical doctor of almost thirty years, is board certified by several medical associations, and is the co-author of a report regarding the cannabis plant’s therapeutic value, among other things. (See generally Carter Deck, ECF No. 310.) He, along with two other authors, prepared the latter report at the request of the former Washington State Governor Christine Gregoire (Id. ¶ 1), who “wanted to petition ... to have cannabis rescheduled[ ]” (Carter Test. 33:22-34:2, ECF No. 353). Dr. Carter testified that “polls would show ... the majority of physicians ... feel ... cannabis has medical benefit.” (Carter Test. 95:13-14.) He conceded that other qualified individuals; including Dr. Madras, disagree with his opinion that marijuana has a currently accepted use. (Id. 38:8-23.) Dr. Carter agreed that the position of the American Medical Association (id. 38:24-41:5), the National Institute on Drug Abuse (id. 42:2-24), and the Institute of Medicine (id. 42:25-43:21) on the medical benefits of marijuana is that it “might have efficacy,” but not that it certainly has. Dr. Carter conceded that marijuana can change the brain “physically and functionally.” (Id. 102:5-11.) In addition, he testified that the Diagnostic and Statistical Manual of Mental Disorders (DSM)-V and DSM-IV, authoritative references on mental disorders, recognize cannabis use disorder.
Dr. Carter has advocated for reclassifying marijuana as a Schedule II substance. (Id. 72:3-74:16.) The latter part of Dr. Carter’s testimony is important because the first criterion under both Schedule I and II is the same: “[t]he drug or other substance has a high potential for abuse.” 21 U.S.C. § 812(b)(1)(A), (b)(2)(A). When asked on redirect whether marijuana had a high potential for abuse, he responded, “moderate.” (Carter Test. 85:17-25.) Dr. Carter was adamant in his opinion, based on research with human subjects, “that marijuana has a tremendous potential” in treating patients suffering from Amyo-trophic Lateral Sclerosis (“ALS”). (Carter Decl. ¶ 17, ECF No. 310.)
Dr. Carter acknowledged that the chemistry of “whole plant” marijuana is “complex,” with a hundred components classified as cannabinoids, and another two to three hundred components that are “mostly terpenoids.” (Carter Test. 51-52.) He opined that there is a “fairly good understanding” of cannabinoids, with “more to be known” about the other components. Id.
According to Dr. Carter, there exists a “Catch-22” that prevents the development of medical information demonstrating conclusively marijuana’s medical value: “[It is] very difficult to do research in this area” because researchers cannot get funding and they cannot get funding because marijuana is a Schedule I substance. (See Carter Test. 82:15-23, 99:14-100:18.)
Dr. Carl Hart is an associate professor in the psychiatry department at Columbia University, with a Ph.D in psychology and neuroscience, among other credentials. (Hart Deck at 1, ECF No. 313.) His laboratory at Columbia is authorized by the Drug Enforcement Agency (DEA) to administer controlled substances to human
Dr. Hart has a unique first-hand perspective informed by the fact that his laboratory is “one of the few laboratories in the Nation to have federal permission to conduct clinical trials ... and[,] therefore, [he] [has] personally observed human subjects under the influence of illegal substances for lawful research purposes.” (Id. ¶ 2.) Dr. Hart testified that he was “in the majority” of qualified people who have concluded marijuana has medical use. (See Hart Test. 168:21-171:12, ECF No. 364.) “He testified specifically that a number of studies on clinical populations show marijuana has a benefit for HIV-positive patients: [S]moking marijuana increases food intake in HIV-positive people to the same extent as ... Marinol.” (Id. 138:13-22.) In addition, Dr. Hart opined there is “growing evidence that marijuana might be useful in post-traumatic stress syndrome.” (Id. 167:10-20.) To counter the harmful effects of smoking marijuana, patients can use vaporizers. (Id. 180:17-182:8.) As to the potential negative effects of smoking marijuana, Dr. Hart agreed “that any psychoactive drug has potential negative effects, as well as potential positive effects.” (Id. 187:21-24.) But one “must weigh the risk-benefit ratio to determine whether or not ... that drug should be used [as medicine].” (Id.) “[W]ith marijuana,” “the potential benefits outweigh the potential risk.” (Id. 258:5-7.) To illustrate the latter conclusion, Dr. Hart provided an example of someone suffering from multiple sclerosis who experiences symptom relief from using marijuana, and reasoned that because “the benefits of ... symptom relief from multiple sclerosis outweigh [the] negatives[,]” that person should be able to use marijuana as medicine. (Id. 277:19-23.) In response to the government’s question whether he agreed “heavy marijuana use resulted in a decrease in IQ when tracked from youth to midlife[ ]” (id. 223:6-9), Dr. Hart noted the users’ IQs “remained within the normal range of functioning[ ]” (id. 16-20).
Dr. Hart confirmed, as suggested by Dr. Carter, that research into the medical benefits of marijuana is somewhat limited by the need to obtain the approvals that he has received, and that there is only one approved supplier of marijuana for research purposes, the University of Mississippi. (Id. 241-242, 246, 249-250.)
Dr. Denney, a California licensed physician of approximately forty years, has been involved “in the emerging field of cannabis medicine since 1999-” (ECF No. 312 at 1.) During his private practice, he operated clinics in several locations throughout California. (Denney Test. 301:24-302:6, ECF No. 364.) In the Redding office, Dr. Den-ney saw between twenty and twenty-five patients a day, “seeking medical marijuana recommendations[.]” (Id. 319:17-21.) Towards the end of his practice, which he closed in 2010, Dr. Denney had made approximately 12,000 marijuana recommendations. (Id. 375:11-377:2, ECF No. 365.) His testimony was consistent with that of Drs. Hart and Carter, that there is a minority view holding marijuana had no medical use. (See id. 419:10-420:9.) While Dr. Denney personally “disagree[d] with the material in DSM-[V] related to marijuana!,]” he agreed that “there is lots
Christopher Conrad, experienced in the legal cultivation and processing of marijuana, has “qualified as an expert witness on marijuana related issues such as cultivation, consumption, genetics, cloning, crop yields, medical use, recreational use, commercial sales, and medical distribution” in several counties, states, and countries. (Conrad Decl. at 1, ECF No. 311.). The essence of his testimony is that the marijuana plant’s chemistry is “known and reproducible.” (Id. ¶ 1.) Mr. Conrad testified the marijuana plant “is the most studied plant in the history of the world[J” (Id. 586:14-20.) That the marijuana plant’s chemistry is reproducible is important, he says, because among other things it will allow the determination of whether there are any contaminants in the plant. (Conrad Test. 538:4-12, ECF No. 365.) That, in turn, is important for controlling the marijuana plant’s quality. (Id. 538:7.)
2. Government Expert
The government’s witness, Dr. Madras, is a professor of psychobiology at Harvard Medical School. (Madras Decl. ¶ 1, ECF No. 324.) In addition to her substantial academic and professional work, Dr. Madras has served as Deputy Director for Demand Reduction for the White House Office of National Drug Control Policy, where she served from 2005 to 2008. (Id. ¶ 6.) Dr. Madras has provided testimony to legislative bodies on proposed medical marijuana bills and has made presentations for government agencies internationally. (Id. ¶ 8.) She has not conducted studies with marijuana on human subjects. (Id. 754-755, 827.) She opined “that the science strongly supports a conclusion that marijuana has a high potential for abuse, has no currently accepted medical use in the United States, and that sufficient assurances of safety for use of marijuana under medical supervision are lacking.” (Id. ¶ 13.) She further stated that “[a] substantial majority — perhaps the vast majority — of scientists familiar with the literature and research agree that, at this time, marijuana does not have medical application.” (Id. ¶ 56.) Dr. Madras testified that any clinical trials involving smoking as the method of administration will never be accepted as a basis for finding medical benefit. (Madras Test. 652:19-653:5, ECF No. 366.)
At the same time, Dr. Madras agreed that the components of marijuana, known as cannabinoids, “should be evaluated because there is tantalizing evidence in the literature that they may have therapeutic benefit.” (Id. 689:6-8.) She further agreed that “[tjhere is tantalizing good evidence that they do have a medical benefit.” (Id. 689:19-20.)
On the question of risk-benefit analysis, Dr. Madras disagreed with the defense witnesses; she testified “the risks involved in the cannabis plant outweigh the benefits for the medical use[.]” (Id. 725:8-11.) Furthermore, as to IQ changes in early marijuana users, unlike Dr. Hart, Dr. Madras testified that she believes the documented drop in IQs is significant because it takes adolescents from average to below average. (Id. 821:21-822:14, ECF No. 367.) Finally, as to the Schedule I criteria — whether marijuana has currently — accepted medical use, whether it has a high potential for abuse, and whether it can be administered safely under a physician’s care — Dr. Madras concluded that while “reasonable people could make the opposite conclusion” that all those three factors are met, “there would have to be a denial of some evidence” to reach that conclusion. (Id. 822:15-823:10.)
3. Percipient Witnesses
The court also received evidence in documentary form, including declarations by Sergeant Ryan D. Begin (ECF No. 309)
Jennie Stormes is a nurse and mother of two, one of whom, her fifteen year old son, suffers from Dravet Syndrome. (Stormes Decl. ¶ 2, ECF No. 315; Supplemental Stormes Decl. ¶ 1, ECF No. 368-1.) Dra-vet Syndrome is a rare form of epilepsy. (Id ¶4.) See Snyder v. Sec’y of Health & Human Servs.,
V. DISCUSSION
A. Equal Protection: Classification of Marijuana
1. Standard of Review
In determining.whether a regulation violates the equal protection clause of the Fifth Amendment, courts first determine the level of scrutiny to apply. Kahawaiolaa v. Norton,
Defendants contend that strict scrutiny should apply to their equal protection claim because it implicates a fundamental right: “the right to be free from incarceration.” (ECF No. 199-1 at 10.) Defendants also contend that the treatment of marijuana as a Schedule I controlled substance targets a suspect class. (Id. at 10-11 n. 16.) They also argue, in the alternative, for heightened rational basis review. (Id. at 11-12.) Finally, defendants argue they prevail even under traditional rational basis review. (Id. at 12-28.)
a. Fundamental Right
Defendants argue that strict scrutiny is warranted because their fundamental right to liberty is at stake. (Id. at 9-10.) The government agrees “[defendants enjoy a fundamental right to liberty,” but argues the statute at issue “does not encroach on that liberty interest.” (ECF No. 279 at 14.)
“Every person has a fundamental right to liberty in the sense that the government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees.” Chapman v. United States,
b. Suspect- Classification
Because the CSA is neutral on its face, to trigger strict scrutiny defendants must prove the following two elements of a prima facie case: (1) the law has a disparate impact on a particular group, and (2) the impact on this group is intentional in the sense that it results from
Defendants argue they have established discriminatory purpose on Congress’s part based on certain offensive statements allegedly made at some point by Harry Anslinger, former Commissioner of the Federal Bureau of Narcotics. (ECF No. 199-1 at 10-11 n. 16.) Mr. Anslinger’s statements, made to Congress in 1937 at the time the Marijuana Tax Act
c. Rational Basis
If a law does not involve a suspect or quasi-suspect classification and does not discriminate with respect to a fundamental right, courts apply a rational basis test to decide whether the law violates the equal protection clause. See Heller v. Doe by Doe,
There are two versions of the rational basis test, traditional rational basis review and a more rigorous rational basis review. See Wilde,
Herе, defendants have not submitted any evidence that Congress classified marijuana as a Schedule I controlled substance because of animus or some discriminatory legislative purpose. Nor is there any evidence that defendants are members of a politically unpopular group targeted by the CSA. There is no justification for applying a more rigorous version of rational basis review in this case.
Under the deferential standard of rational basis review, then, as long as there is some conceivable reason for the challenged classification of marijuana, the CSA should be upheld. Such a classification comes before the court “bearing a strong presumption of validity,” and the challenger must “negative every conceivable basis which might support it....” F.C.C. v. Beach Commc’ns, Inc.,
Courts that have considered the constitutional question at issue in this case have
2. Analysis
In light of the foregoing, the question before the court is a nar/ow one: whether Congress acted rationally in classifying- marijuana as a Schedule I substance in light of the record created before this court. To ask that question in this case, under rational basis review, is to answer it. This court cannot say that Congress could not reasonably have decided that'marijuana belongs and continues to belong on Schedule I of the CSA. As explained below, the record here does not demonstrate there is only one supportable point of view about marijuana’s safe, medical value or abuse potential.
As noted above, the statutory section in the CSA entitled “Placement on schedules; findings required,” provides as follows, in relevant part:
[A]drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for [Schedule I] are as follows:
(1) Schedule I—
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
21 U.S.C. § 812(b).
Defendants claim that the weight of cur: rent medical knowledge shows marijuana does not satisfy these three criteria. The Supreme Court has observed that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” United States v. Carolene Products Co.,
a. High Potential for Abuse
As shown from the evidence in the record, there are conflicts in testimony and material disagreements as to whether marijuana has a high potential for abuse. For example, Dr. Carter testified that he advocated for reclassifying marijuana as a Schedule II substance. (Carter Test. 72:3-73:10, ECF No. 353.) That testimony
b. No Currently Accepted Medical Use
Similarly, the evidence shows that disagreements among well-informed experts as to marijuana’s medical use persist. Dr. Carter testified that although he believes the majority of physicians believe marijuana has medical benefit (Carter Test. 95:13-14, ECF No. 353), other qualified professionals,' including . Dr.. Madras, disagree with his opinion. (Id. 38:8-23.) Dr. Hart’s testimony was consistent with Dr. Carter’s observation that he was “in the majority” of qualified people who think marijuana has medical use. (See Hart Test. 168:21-171:12, ECF No. 364.) And Dr. Denney’s testimony corroborated Drs. Hart’s and Carter’s testimony that there is a recognized minority view holding marijuana had no medical use. (See Denney Test. 419:10-420:9, ECF No. 365.)
Dr. Madras, on the other hand, stated that “[a] substantial majority — perhaps the vast majority — of scientists familiar with the literature and research” attest that, at this time, marijuana has no confirmed medical application. (Madras Decl. ¶ 56, ECF No. 324.) She conceded at most that cannabinoids, the components of marijuana, should be evaluated because there is scientific evidence that they may have medical benefit. (Madras Test. 689:6-8, ECF No. 366.) Dr. Madras opined that while reasonable experts could find a way to conclude otherwise, that whole plant marijuana is known to have medical value, they would be ignoring some of the evidence to reach that conclusion. (Id. 822:15-823:10, ECF No. 367.)
The Surgeon General’s statements to a media outlet about marijuana’s efficacy for certain medical conditiоns and symptoms, of which the court, has taken judicial notice, do not eliminate the principled disagreements of the experts here.
Congress could rationally conclude that marijuana, the undifferentiated plant that appears on Schedule I, has no established medical value.
c. Lack of Accepted Safety for Use of Marijuana under Medical Supervision
Finally, the evidence is conflicting as to whether there is accepted safety for marijuana’s use under medical supervision.
Dr. Hart, who has personally administered “thousands of doses of marijuana” to human subjects, testified that marijuana’s safe administration under medical supervision is established. (Hart Test. 165:16-166:2, ECF No. 364.) Dr. Denney, who has recommended marijuana to approximately 12,000 patients in California during his career (Denney Test. 375:11-377:2, ECF No. 364), testified more generally that none of his patients ever reported major issues. (See Id. 485:13^188:18.)
On the other hand, Dr. Madras reasoned marijuana cannot be used safely because, among other things, there is no adequate understanding of its composition. (Madras Dec. ¶ 63 (“There are simply too many variables to assure safety to potential patients at this time, and to assure that drug-drug interactions will be harm
Congress could rationally conclude there is a lack of accepted safety for use of marijuana under medical supervision.
3. Conclusion
In sum, the evidence of record shows there are serious, principled differences between and among prominent, well-informed, equivalently credible experts. There are some positive anecdotal reports from persons who have found relief from marijuana used for medical purposes; those reports do not overcome the expert disputes. Consistent with the conclusions other courts have reached, this court finds “[t]he continuing questions about marijuana and its effects make the classification rational.” NORML,
As another district court has observed, [e]ven assuming, arguendo, that marijuana does not fall within a literal reading of Schedule I, the classification still is rational. Placing marijuana in Schedule I furthered the regulatory purposes of Congress. The statutory criteria of section 812(b)(1) are guides in determining the schedule to which a drug belongs, but they are not dispositive. Indeed, the classifications at times cannot be followed consistently, and some conflict exists as to the main factor in classifying a drug potential for abuse or possible medical use.
Id. at 140.
One is tempted to say, with apologies to Yogi Berra, it’s “déjá vu all over again.” As the Second Circuit observed in 1973: “It is apparently true that there is little or no basis for concluding that marihuana is as dangerous a substance as some of the other drugs included in Schedule I.” Kiffer,
“In an equal protection case of this type ..., those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley,
After careful consideration, the court joins the chorus of other courts considering the same question, and concludes as have they that — assuming the record created here is reflective of the best information currently available regarding marijuana — the issues raised by the defense are policy issues for Congress to revisit if it chooses. See United States v. Canori,
B. Equal Protection: Discriminatory Application of Federal Law
Defendants advance a second equal protection challenge, arguing “the policy statement presented in the Memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on August 29, 2013 [ (Cole Memorandum) ], has resulted in a discriminatory application of federal law_” (ECF No. 199-1 at 3 (citing Ex. A).) The government counters the Cole Memorandum does not advise prosecutors to make their decisions to prosecute or not based on whether the state has legalized marijuana. (ECF No. 224 at 12-14.) Instead, the Cole Memorandum advises prosecutors to follow the traditional approach, which relies on state and local authorities to address lower-level or localized marijuana activity through enforcement of their own narcotics laws. (Id.) The government argues the memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion and in no way alters the Department of Justice’s (DOJ) authority to enforce federal laws relating to marijuana, regardless of state law. (Id. at 16-17.)
“In our criminal justice system, the government retains ‘broad discretion’ as to whom to prosecute.” Wayte v. United States,
As the Supreme Court has observed,
This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and thecase’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.
Wayte,
Prosecutorial discretion, of course, is not boundless, and is “subject to constitutional constraints.” Id. at 608,
Here, the court finds defendаnts have not met their burden of showing discriminatory application of federal law. In 2009, Deputy Attorney General Ogden issued a memorandum (Ogden Memorandum), acknowledging that some states had authorized medical use of marijuana and providing guidance to U.S. Attorneys concerning prosecutorial discretion in those states in harmony with the DOJ’s priorities. See Canori,
Rather, the Cole Memorandum merely describes eight enforcement priorities to guide the CSA’s enforcement: (1) “[preventing the distribution of marijuana to minors”; (2) “[p]reventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels”; (3) “[p]reventing the diversion of marijuana from states where it is legal under state law in some form to other states”; (4) “[preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity”; (5) “[preventing violence and the use of firearms in the cultivation and distribution of marijuana”; (6) “[preventing drugged driving and
C. The Doctrine of Equal Sovereignty
Each of the United States is “eqúal in power,’ dignity, and authority.” Shelby County, Ala. v. Holder, 570 U.S. -,
Defendants urge the court to rely on Shelby County, arguing the policy of the Cole Memorandum imposes a disparate impact on states in violation of the Tenth Amendment, akin to the burden section 4 of the Voting Rights Act placed in Shelby County. (ECF No. 199-1 at 31.) Shelby County does not fit squarely here. The Cole Memorandum is a very different creature from a statute. It does not circumscribe the DOJ’s ability to prosecute drug offenses under the CSA in any state. (ECF No. 224 at 4.) It does not make production or distribution of marijuana legal in any state, while burdening other states. It is “intended solely as a guide” for prosecutors in their exercise of discretion, id., and federal prosecutors retain “exclusive authority and absolute discretion to decide whether to prosecute a case,” Greenlaw v. United States,
The CSA applies with equal force in states where, marijuana is now legalized as a matter of state law,
Finally, defendants point to section 538 of the Consolidated and Further Continuing Appropriations Act of 2015, H.R. 83, approved on December 16, 2014, and argue that section 538 provides further support for their argument regarding disparate treatment of states: Section 538 “specifically prohibits federal law from being applied equally in all jurisdictions by cutting off funding for enforcement of marijuana laws in specified states, and the District of Columbia.” (ECF No. 378 at 35-36.)
H.R. 83 is a spending bill, effective only for the 2015 fiscal year. See Public Law No. 113-235. It precludes the use of federal funds to prevent the states’ adoption of medical marijuana laws. Specifically, section 538 provides as follows, in relevant part:
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the usе, distribution, possession, or cultivation of medical marijuana.
Pub.L. 113-235, 2014 H.R. 83 (Dec. 16, 2014) (Title V).
Defendants have not sought to amend their motion to rely expressly on section 538 and have not argued clearly that the language of section 538 alone provides an additional reason for dismissal. The court need not tease out all the implications of the appropriations language to resolve the motion here.
Unlike the Voting Rights Act, the CSA does not preemptively limit a state’s ability to pass laws regarding marijuana or require a state to seek the DOJ’s or the courts’ permission before doing so. The defendants stringently assert that “the current burden of the [Cole Memorandum’s] disparate treatment is not justified by a current need.” (ECF No. 199-1 at 32.) Even if true, that does not grant this court authority to second-guess the DOJ’s enforcement policy or any guidance it provides to local U.S. Attorneys.
For the foregoing reasons, the court DENIES defendants’ motion.
IT IS SO ORDERED.
Notes
. While defendants in their original motion also challenged the classification of tetrahy-drocannabinol (THC) as a Schedule I substance, the parties’ subsequent briefing has focused on marijuana's classification, with only passing references to THC.
. The following defendants subsequently entered into plea agreements and have been sentenced: Homero Lopez-Barron, Victorino Betancourt-Meraz, Oseas Cardenas-Tolenti-no, Fernando Reyes-Mojica, Juan Cisneros-Vargas, Filiberto Espinoza-Tapia, and Osiel Valencia-Alvarez. The remaining defendants are: Bryan R. Schweder, Paul Rockwell, Juan Madrigal Olivera, Manuel Madrigal Olivera, Fred W. Holmes, Effren A. Rodriguez, Rafael Camacho-Reyes, Leonardo Tapia, and Brian J. Pickard.
. Certain of the government’s questions during the evidentiary hearing strongly suggested the government understands that defendants were engaged in growing marijuana for sale to medical marijuana dispensaries. (See Conrad Test. 537:18-539:10, 547:21-548:8, 550:13-553:13, 557:5-13; ECF No. 365.) In closing arguments the government denied it conceded this point. (ECF No. 386.) While the defense appeared confused by the government’s position in this respect, the court need not make a determination regarding the purpose for which defendants were growing marijuana as their purpose is immaterial to the court's analysis of the motion to dismiss.
. Rule 28.3 of the Third Circuit's local appellate rules, states: "Citations to federal decisions that have not been formally reported must identify the court, docket number and date, and refer to the electronically transmitted decision.”
. Raich stands for much more than the limited observation cited here, but the fundamental questions Raich addressed are distinguishable from those presented here. In Raich, the respondents' challenge was "quite limited’,’: "they argue[d] that the CSA’s, categorical prohibition of the manufacture and possession of marijuana as applied to intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceed[ed) Congress’ authority under the Commerce Clause.”
. Tonic seizures cause muscle stiffening. See Corzine v. Sec’y of Dep’t of Health & Human Servs., No. 01-230,
. The Marijuana Tax Act was passed in 1937. See ch. 553, Publ. L. No. 75-238, 50 Stat. 551 (1937). It had two main subparts: the first imposed a tax on transfers of marijuana, and the second imposed an occupational tax upon those who dealt in marijuana. Leary v. United States,
. In addition to the District of Columbia, as of the date of this order, it appears the court could take judicial notice of the fact that at least twenty-four states have legalized marijuana in some form: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. And in the