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This Court Decision Could Speed Up the End of Federal Cannabis Prohibition

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In an ongoing court case that began in New York’s Southern District Court, a cohort of plaintiffs — including pediatric epilepsy patient Alexis Bortell and former pro-football player Marvin Washington — who are fighting to remove cannabis from the Controlled Substances Act, celebrated a small, but consequential administrative victory after Judge Guido Calabresi wrote in the majority opinion on Thursday that the federal government must move quickly on rescheduling marijuana. 

The genesis of this case begins in 2017, when the plaintiffs — Washington, Bortell, Iraq War veteran Jose Belen, eight year-old Leigh’s Disease patient Jagger Cotte, and the Cannabis Cultural Association, a nonprofit helping people of color enter in the cannabis industry — filed a lawsuit against the Justice Department, arguing that cannabis’ Schedule I status under the CSA is unconstitutional and poses serious health risks. The plaintiffs are being represented, pro bono, by a team of lawyers, including Manhattan attorneys Joseph Bondy, Michael Hiller, and Lauren Rudick. 

Though Calabresi affirmed the lower court’s decision to dismiss the case last year, he also stated that the plaintiffs should first exhaust administrative remedies — a process that entails petitioning the appropriate government agency, which in this case is the DEA (Drug Enforcement Administration). 

However, evidence shows that bureaucratic sluggishness would cause the DEA’s process of removing cannabis from Schedule I to take about nine years — and as the plaintiffs’ legal team argues, these patients (including Cotte, who’s nearly doubled his life span predictions thanks to medical marijuana) do not have nine years to wait. 

Calebrisi agreed, writing in the court’s opinion, In light of the unusual circumstances of this case, we hold the case in abeyance and retain jurisdiction in this panel to take whatever further action might become appropriate should Plaintiffs initiate administrative review and the administrative process fail to operate with adequate dispatch.”

Attorney Mr. Bondy said that the court’s decision was an extremely positive step” for the industry and advocates. Calling Calebrisi’s decision to bring the case to a temporary halt, or abeyance, exceedingly irregular, he also noted that by doing so, the second district retains jurisdiction, and can compel the government to act with deliberate speed.” 

Jagger’s father, Sebastien Cotte, told Civilized that he feels great after Thursday’s decision.”There’s never been a case like our case that has gone that far before. We have not been dismissed in the court of appeals, and they’re putting the government on notice that, you’ve got to get your act together.’ That’s a big victory, making the government take responsibility.” 

Moving forward, Bondy and others will work to file a petition for the DEA to take action on marijuana rescheduling, which he anticipates will take around six months. Next, the deliberate speed” part commences as plaintiffs wait for a government reply. If the DEA fails to move quickly, Bondy notes that the second circuit could hold a decision. But if they do move with alacrity, he said, a reclassification of cannabis under the CSA could be administered as quickly as a year from when the petition was filed.

Cotte believes that this case has ramifications beyond the lives of the already, very sick children who are involved as plaintiffs. It’s about every kid, and every patient in the country,” Cotte said. This groundbreaking case [can] give everyone the choice to use cannabis.” Encouraged by the case moving onto the DEA fast track, he adds that at the end of the day, the case is very simple: We are talking about human lives. They are numbers, and not paperwork. And I hope the DEA is feeling that. I am hoping that the DEA will say, It’s time. We don’t want to keep people waiting.’”

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