NO. 20 148
`
`In the
`Supreme Court of the United States
`
`MARVIN WASHINGTON DB, AS PARENT OF INFANT AB
`JOSE BELEN SC, AS PARENT OF INFANT JC AND
`CANNABIS CULTURAL ASSOCIATION, INC.,
`
`
`
`Petitioners,
`
`v.
`
`WILLIAM PELHAM BARR, IN HIS OFFICIAL CAPACITY
`AS UNITED STATES ATTORNEY GENERAL UNITED STATES
`DEPARTMENT OF JUSTICE TIMOTHY J. SHEA, IN HIS OFFICIAL
`CAPACITY AS ACTING DIRECTOR OF THE DRUG ENFORCEMENT
`ADMINISTRATION, UNITED STATES DRUG ENFORCEMENT
`ADMINISTRATION, AND THE UNITED STATES OF AMERICA,
`
`
`
`Respondents.
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Second Circuit
`
`BRIEF OF THE LAST PRISONER PROJECT
`AS AMICUS CURIAE IN SUPPORT OF PETITIONERS
`
`
`
`
`GARY WEINSTEIN
` COUNSEL OF RECORD
`330 WASHINGTON ST.
`PMB #368
`HOBOKEN, NJ 07030
`(551) 208 2447
`GPW2@CORNELL.EDU
`
`ELIYAHU S. SCHEIMAN
`PORZIO, BROMBERG & NEWMAN, P.C.
`100 SOUTHGATE PARKWAY
`MORRISTOWN, NJ 07962
`(973) 889 4232
`ESSCHEIMAN@PBNLAW.COM
`
`MATTHEW J. DONOHUE
`PORZIO, BROMBERG & NEWMAN, P.C.
`100 SOUTHGATE PARKWAY
`MORRISTOWN, NJ 07962
`(973) 810 6240
`MJDONOHUE@PBNLAW.COM
`
`SEPTEMBER 11, 2020
`
`COUNSEL FOR AMICUS CURIAE
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`
`
`In the
`Supreme Court of the United States
`
`MARVIN WASHINGTON DB, AS PARENT OF INFANT AB
`JOSE BELEN SC, AS PARENT OF INFANT JC AND
`CANNABIS CULTURAL ASSOCIATION, INC.,
`
`
`
`Petitioners,
`
`v.
`
`WILLIAM PELHAM BARR, IN HIS OFFICIAL CAPACITY
`AS UNITED STATES ATTORNEY GENERAL UNITED STATES
`DEPARTMENT OF JUSTICE TIMOTHY J. SHEA, IN HIS OFFICIAL
`CAPACITY AS ACTING DIRECTOR OF THE DRUG ENFORCEMENT
`ADMINISTRATION, UNITED STATES DRUG ENFORCEMENT
`ADMINISTRATION, AND THE UNITED STATES OF AMERICA,
`
`
`
`Respondents.
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Second Circuit
`
`BRIEF OF THE LAST PRISONER PROJECT
`AS AMICUS CURIAE IN SUPPORT OF PETITIONERS
`
`
`
`
`GARY WEINSTEIN
` COUNSEL OF RECORD
`330 WASHINGTON ST.
`PMB #368
`HOBOKEN, NJ 07030
`(551) 208 2447
`GPW2@CORNELL.EDU
`
`ELIYAHU S. SCHEIMAN
`PORZIO, BROMBERG & NEWMAN, P.C.
`100 SOUTHGATE PARKWAY
`MORRISTOWN, NJ 07962
`(973) 889 4232
`ESSCHEIMAN@PBNLAW.COM
`
`MATTHEW J. DONOHUE
`PORZIO, BROMBERG & NEWMAN, P.C.
`100 SOUTHGATE PARKWAY
`MORRISTOWN, NJ 07962
`(973) 810 6240
`MJDONOHUE@PBNLAW.COM
`
`SEPTEMBER 11, 2020
`
`COUNSEL FOR AMICUS CURIAE
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ....................................... ii
`
`INTEREST OF AMICUS CURIAE ........................... 1
`
`SUMMARY OF ARGUMENT .................................... 3
`
`ARGUMENT ............................................................... 5
`
`I. THE DEA AND SECRETARY AZAR HAVE
`DEMONSTRATED BIAS AND IMPROPERLY
`PREDETERMINED THAT MARIJUANA CANNOT
`BE DESCHEDULED, RENDERING EXHAUSTION
`FUTILE ............................................................... 5
`
`A. The DEA’s Established Bias and Record
`of Dilatory Review ...................................... 8
`
`B. Secretary Azar’s Demonstrated Bias ....... 12
`
`II. THE DEA’S FAILURE TO CONSIDER DESCHED
`ULING PERPETUATES RACIAL BIAS AND
`SOCIETAL HARMS BY DRIVING MARIJUANA
`CRIMINALIZATION AND UNEQUAL ENFORCE
`MENT ............................................................... 15
`
`CONCLUSION .......................................................... 18
`
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`TABLE OF AUTHORITIES
`
`CASES
`
`In re Scottsdale Research Institute, LLC,
`Case No. 19 1120 (D.C. Cir. 2019). ............. 10, 12
`
`McCarthy v. Madigan,
`503 U.S. 140 (1992) ......................................... 4, 8
`
`N.O.R.M.L. v. Drug Enforcement Admin.,
`559 F.2d 735 (D.C. Cir. 1977) ......................... 6, 8
`
`Porter v. Nussle,
`534 U.S. 516 (2002) ............................................. 4
`
`Suzanne Sisley, M.D., et al. v. U.S. Drug
`Enforcement Administration, et al.,
`No. 20 71433 (9th Cir. August 18, 2020) ....... 7, 11
`
`Washington v. Barr,
`925 F.3d 109 (2d Cir. 2019) ..................... 4, 5, 7, 8
`
`STATUTES
`
`21 U.S.C. § 801 et seq ....................................... passim
`
`21 U.S.C. § 811 ...................................................... 6, 14
`
`21 U.S.C. § 823(a) ...................................................... 11
`
`N.J.S.A. 24 6I 2 ........................................................... 7
`
`R.I.S. 21 28.6 2 ............................................................. 7
`
`JUDICIAL RULES
`
`Sup. Ct. R. 10(a) .......................................................... 5
`
`Sup. Ct. R. 37.2(a) ....................................................... 1
`
`Sup. Ct. R. 37.6 ............................................................. 1
`
`
`
`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`REGULATIONS
`
`84 Fed. Reg. 44,920 (Aug. 27, 2019) ........................... 10
`
`Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana, CFR Chapter II
`and Part 1301, Fed. Register, Vol. 156,
`53688, Aug. 12, 2016 (quoting N.O.R.M.L.
`559 F.2d at 751) ......................................... 6, 8, 15
`
`Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana, CFR Chapter II
`and Part 1301, Fed. Register, Vol. 156,
`53689, Aug. 12, 2016 ........................................... 9
`
`Federal Register,
`Vol. 81, No. 156, 53696
`(August 12, 2016) .............................................. 14
`
`TREATISES
`
`Alex Azar,
`Remarks on Surgeon General’s Marijuana
`Advisory, https //www.hhs.gov/
`surgeongeneral/reports and publications/
`addiction and substance misuse/advisory
`on marijuana use and developing brain/
`index.html .......................................................... 12
`
`Licensing Marijuana Cultivation in
`Compliance with the Single Convention
`on Narcotic Drugs, 42 Op. O.L.C.
`(June 6, 2018) .................................................... 11
`
`Office of the Surgeon General,
`U.S. Surgeon General’s Advisory
`Marijuana Use and the Developing Brain,
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`https //www.hhs.gov/about/leadership/
`secretary/speeches/2019 speeches/
`remarks on surgeon general marijuana
`advisory.html ..................................................... 13
`
`Substance Abuse and Mental Health Services
`Administration, Results from the 2018
`National Survey on Drug Use and Health ........ 16
`
`U.S. Census,
`ACS Demographic and Housing
`Estimates, 2018, https //data.census.gov/
`cedsci/table?q=2020%20population%
`20estimates&tid=ACSDP1Y2018.DP05&
`t=Counts,%20Estimates,%20and%
`20Projections ....................................................... 7
`
`OTHER AUTHORITIES
`
`Angela Dills, Sietse Goffard and Jeffrey
`Mironm, Dose of Reality The Effect of
`State Marijuana Legalizations,
`CATO Institute, September 16, 2016,
`https //object.cato.org/sites/cato.org/files/
`pubs/pdf/pa799.pdf ............................................ 17
`
`E. Edwards, E. Greyak, B. Madubounwu, et al.
`A Tale of Two Countries Racially
`Targeted Arrests in the Era of Marijuana
`Reform, ACLU Report, 2020, https //
`www.aclu.org/report/tale two countries
`racially targeted arrests era marijuana
`reform ................................................................ 15
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`National Organization for the Reform of
`Marijuana Laws, FBI Marijuana Arrests
`Rise for Third Year in a Row, Outpace
`Arrests for All Violent Crimes, October 3,
`2019, https //norml.org/news/2019/10/03/
`fbi marijuana arrests rise for third year
`in a rowoutpace arrests for all violent
`crimes ................................................................. 15
`
`Stith SS, Vigil JM.
`Federal Barriers to Cannabis Research,
`Science, 2016 352(6290) 1182 .......................... 10
`
`The Economic Impact of Marijuana
`Legalization in Colorado, Marijuana
`Policy Group, October 2016,
`http //www.mjpolicygroup.com/pubs/
`MPG%20Impact%20of%20Marijuana%
`20on%20Colorado Final.pdf .............................. 17
`
`Thomas BF, Pollard GT,
`Preparation and Distribution of Cannabis
`and CannabisDerived Dosage
`Formulations for Investigational and
`Therapeutic Use in the United States,
`Frontiers in Pharmacology, 2016 7 285 .............. 9
`
`
`
`
`
`1
`
`
`
`INTEREST OF AMICUS CURIAE 1
`
`Despite meaningful progress by the Federal
`Government and numerous state governments to
`decriminalize and/or legalize the use, distribution, and
`possession of marijuana, individuals are still incar
`cerated and serve disproportionate sentences for non
`violent offenses simply because of the prejudiced and
`scientifically baseless classification of marijuana as a
`Schedule I substance under the Controlled Substances
`Act (“CSA” or “Act”), 21 U.S.C. § 801 et seq.
`
`The Last Prisoner Project (LPP), a 501(c)(3) non
`profit organization, advocates for individuals sentenced
`for nonviolent marijuana offenses, as well as for those
`still suffering the collateral consequences of a mari
`juana offense on their criminal record.
`
`LPP’s work is grounded in data driven studies
`demonstrating that the criminalization of marijuana
`has led to racial disparities in the justice system. The
`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 criminalization of marijuana has led to
`egregious sentences, mass incarceration, and a dis
`
`1 Pursuant to Supreme Court Rule 37.2(a), notice of LPP’s intent
`to file this amicus curiae brief was received by counsel of record
`for all parties at least 10 days prior to the due date of this brief
`and all parties consent to the filing of this amicus curiae brief.
`Pursuant to this Court’s Rule 37.6, we note that no part of this brief
`was authored by counsel for any party, and no person or entity
`other than LPP and its counsel made a monetary contribution
`specifically for the preparation or submission of this brief.
`
`
`
`2
`
`parate impact on people of color, especially Black
`Americans. Perversely, many such individuals are
`incarcerated in the very same states where corporate
`executives generate impressive profits (and where
`those states collect significant tax revenues) from legal
`ized commercial marijuana activity. This is patently
`unfair and must be addressed. Tragically, the recent
`COVID 19 pandemic has now turned the fight for
`restorative justice into a matter of life or death for
`those serving nonviolent marijuana offenses nationwide
`at a time when cannabis has been declared “essential”
`in almost every state with a medical or adult use
`program. Public safety, health, and life is at stake.
`
`In response, LPP has championed a multifaceted
`approach to remediating these injustices and dispar
`ities. Through policy reform, legislative advocacy, and
`impactful direct service programs, LPP secures release
`for nonviolent marijuana offenders from incarcera
`tion, and assists those coming out of incarceration in
`rebuilding their lives through reentry programs and
`anti recidivism efforts. LPP also advocates for the
`descheduling and full legalization of marijuana as a
`means to redress the ongoing disparities within the
`justice system, from policing to incarceration, which are
`exacerbated by the scheduling of marijuana.
`
`Along with release, LPP’s direct service and
`advocacy efforts work towards ensuring that LPP
`constituents have a “clean slate” to rebuild their lives.
`Legalization efforts have also served as a catalyst for
`innovative justice reform measures such as automatic
`expungement legislation. In fact, with such advocacy
`efforts, almost every state that has legalized adult use
`has enacted some form of clean slate or marijuana
`expungement legislation to rectify this societal wrong.
`
`
`
`3
`
`Descheduling marijuana is critical to ensuring that
`Americans — and especially Petitioners — are able to
`obtain safe and effective medical treatment without
`fear of the devastating consequences of potential
`criminal or civil sanctions resulting from the federal
`scheduling of marijuana. When federal agencies
`ignore and simply “pocket veto” important petitions for
`life saving medicine, and when federal agency action
`is grounded in prejudicial bias, courts may and
`should directly exercise their supervisory authority to
`do what Petitioners ask the Court to do here – declare
`the scheduling of marijuana under the CSA unconstitu
`tional, and remove it from the Act.
`
`
`
`SUMMARY OF ARGUMENT
`
`The District Court erred in requiring Petitioners to
`bring their claims to the Drug Enforcement Admin
`istration (DEA) rather than determine the con
`stitutionality of marijuana scheduling under the CSA.
`The Second Circuit compounded this error by ignoring
`the futility exception to the exhaustion doctrine. Ex
`haustion is required when there is a full and fair
`opportunity to reasonably petition an administrative
`body for a decision. It is not required, and makes no
`sense, however, when an agency’s (i.e. the DEA) pre
`determined bias renders the outcome a foregone con
`clusion. This is especially egregious where, as here,
`Petitioners are medical marijuana patients with a
`serious, life or death threat to their health.
`
`The Second Circuit affirmed the District Court’s
`denial of Petitioners’ challenge to the inclusion of
`
`
`
`4
`
`marijuana on Schedule I of the CSA because Petitioners
`failed to exhaust their administrative remedies and
`pursue reclassification through the administrative
`process defined in the Act. It unduly relied on McCarthy
`v. Madigan, 503 U.S. 140, 144 (1992), superseded by
`statute on other grounds as recognized in Porter v.
`Nussle, 534 U.S. 516 (2002) to justify requiring the
`exhaustion of administrative remedies.
`
`The Second Circuit stated that “[t]he District
`Court’s decision to require exhaustion here was . . .
`correct.” But it gave short shrift to the important
`futility exception to exhaustion, and yet did so despite
`recognizing that exhaustion is unnecessary where
`futile because of bias or when an administrative
`agency has already determined the issue.
`
`The Second Circuit found that Petitioners failed
`to cite evidence of bias by the relevant decision maker
`— here the bias of Secretary of Health and Human
`Services, Alex Azar. Yet there are multiple examples
`of bias in public statements by Secretary Azar. Those
`public statements, made after the Second Circuit deci
`sion — but prior to its April 17, 2020 Order — could and
`should be reconsidered by the Circuit Court if this
`matter were reversed and remanded with guidance
`concerning the futility exception to exhaustion.
`Alternatively, this matter could be remanded to the
`District Court which prematurely closed the record and
`denied Petitioners an opportunity to demonstrate
`“plausible allegations of bias on the part of the
`Secretary” and impacted Petitioners’ opportunity to
`establish “futility on account of bias.” See Washington
`v. Barr, 925 F.3d 109, 119 (2d Cir. 2019).
`
`Curiously, recognizing precisely the futility of
`Petitioners reasonably petitioning the DEA, the Second
`
`
`
`5
`
`Circuit retained jurisdiction, “in view of the unusual
`circumstances of this case” [referring to the “serious,
`life or death threat to their health”] to ensure “speedy
`administrative review.” Id. at 112. This retention of
`jurisdiction — resulting in a mandate over ten months
`from its own decision — was because the Court was
`explicitly “troubled by the . . . DEA’s history of dilatory
`proceedings.” Id. at 113. The Second Circuit was
`right to recognize the problems reflected in DEA’s
`history with respect to marijuana, but it erred in the
`“remedy” that it adopted.
`
`The DEA’s troubling history, compounded by
`Secretary Azar’s (i.e. the relevant decision maker’s)
`statements, entitled Petitioners to the futility exception
`to the exhaustion doctrine, and compels this Court’s
`reversal and remand. For the Second Circuit to require
`exhaustion despite having essentially recognized the
`futility of such efforts, is a decision that has “so far
`departed from the acceptable and usual course of
`judicial proceedings, or sanctioned such a departure
`by a lower court, as to call for an exercise of this
`Court’s supervisory power.” Rules of the Supreme
`Court of the United States, Rule 10(a).
`
`
`
`ARGUMENT
`
`I. THE DEA AND SECRETARY AZAR HAVE DEMON
`STRATED BIAS AND IMPROPERLY PREDETERMINED
`THAT MARIJUANA CANNOT BE DESCHEDULED,
`RENDERING EXHAUSTION FUTILE
`
`The Second Circuit erred in ignoring the futility
`of administrative exhaustion. The DEA has never
`
`
`
`6
`
`given any petitioner a reasonable and unbiased
`opportunity to petition to deschedule2 or reschedule
`marijuana since the first such petition was filed in
`1972 by the National Organization for the Reform of
`Marijuana Laws to the Bureau of Narcotics and
`Dangerous Drugs (BNDD) (n/k/a the DEA). The BNDD
`refused to reschedule marijuana on the basis that
`the Single Convention prohibited it from taking any
`action. See N.O.R.M.L. v. Drug Enforcement Admin.,
`559 F.2d 735 (D.C. Cir. 1977). The DEA echoed this
`flawed reasoning in 2016 in the last published denial
`of a petition (dated November 30, 2011) to initiate
`proceedings to reschedule marijuana in accordance
`with the CSA. See 21 U.S.C. § 811. Relying on factors
`that include “the reputation of the substance ‘on the
`street,’” the DEA determined that marijuana could
`not be descheduled, but only potentially rescheduled
`to Schedule II, because “marijuana has no currently
`accepted medical use in treatment in the United States”
`and “lacks accepted safety for use under medical
`supervision.” Denial of Petition to Initiate Proceedings
`to Reschedule Marijuana, CFR Chapter II and Part
`1301, Fed. Register, Vol. 156, 53688, Aug. 12, 2016
`(quoting N.O.R.M.L. 559 F.2d at 751).
`
`The DEA continues to deny petitions to deschedule
`or reschedule marijuana based on the 2016 decision
`despite the fact that as of 2018, over three out of five
`(i.e. 62%) Americans live in a state with medical
`
`2 As Petitioners correctly identify, there is a Circuit split as to
`whether the DEA even has the authority to act in the manner
`the Second Circuit is directing. N.O.R.M.L. v. Drug Enforcement
`Admin., 559 F.2d 735 (D.C. Cir. 1977).
`
`
`
`7
`
`marijuana3, and one in five (i.e. 21%) Americans reside
`in a state that has legalized adult use marijuana. The
`DEA continues to ignore the legislative findings of
`the thirty three (33) states with medical marijuana
`programs, which all recognize the medicinal value of
`marijuana, evidenced by modern medical research.
`See, e.g., N.J.S.A. 24 6I 2 (“Modern medical research
`has discovered a beneficial use for cannabis in treating
`or alleviating the pain or other symptoms associated
`with certain medical conditions, as found by the
`National Academy of Sciences’ Institute of Medicine[.]”
`and R.I.S. 21 28.6 2 (finding same). Each year, the
`DEA continues to receive petitions to deschedule and
`reschedule cannabis, but summarily rejects them all
`because of similar flawed reasoning. See Suzanne
`Sisley, M.D., et al. v. U.S. Drug Enforcement Admin
`istration, et al., Dkt. No. 20 71433 (9th Cir., August 18,
`2020) (discussing a Petition to Reschedule Marijuana
`with the DEA on January 3, 2020, which was
`summarily rejected on January 8, 2020 in a two page
`letter stating the reasoning contained in the DEA’s
`2016 decision remained unchanged).
`
`The Second Circuit improperly concluded that
`Petitioners must subject themselves to the DEA’s
`administrative procedures because they failed to meet
`any of the exceptions to the exhaustion doctrine. See
`Washington v. Barr, 925 F.3d 109, 115 (2d Cir. 2019).
`
`3 As of 2020, medical marijuana was legalized in the District of
`Columbia and AK, AZ, AR, CA, CO, CT, DE, FL, HI, IL, LA, ME,
`MD, MA, MI, MN, MO, MT, NV, NH, NJ, NM, NY, ND, OH, OK,
`OR, PA, RI, UT, VT, WA, and WV Population data in the District
`of Columbia and 33 states https //data.census.gov/cedsci/table?
`q=2020%20population%20estimates&tid=ACSDP1Y2018.DP05&
`t=Counts,%20Estimates,%20and%20Projections
`
`
`
`8
`
`It correctly recognized, but then failed to effectively
`respond to, the DEA’s extremely concerning dilatoriness
`when examining petitions seeking proceedings to re
`schedule narcotics. The Second Circuit was troubled
`by the DEA’s “history of dilatory proceedings” — which
`includes one instance of taking over nine (9) years
`before responding to a petition — yet paradoxically
`concluded Petitioners were not sufficiently prejudiced
`by “unreasonable or indefinite timeframes for admin
`istrative action.” Id. at 121.
`
`Nor did the Second Circuit find that Petitioners
`qualify for the other McCarthy exceptions to exhaustion
`(e.g., that the agency decisionmakers are biased, that
`the agency has already determined the issue, or that
`the administrative process would be incapable of grant
`ing adequate relief), each of which also applies. The
`Second Circuit erred in its analysis.
`
`A. The DEA’s Established Bias and Record of
`Dilatory Review
`
`In its 2016 denial of a November 30, 2011 petition
`to initiate proceedings to reschedule marijuana, the
`DEA concluded “placement of marijuana in either
`schedule I or schedule II of the CSA is ‘necessary as
`well as sufficient to satisfy our international obliga
`tions’ under the Single Convention.” Denial of Peti
`tion to Initiate Proceedings to Reschedule Marijuana,
`CFR Chapter II and Part 1301, Fed. Register, Vol.
`156, 53688, Aug. 12, 2016 (quoting N.O.R.M.L. v. DEA,
`559 F.2d 735, 751 (D.C. Cir. 1977). This statement
`alone demonstrates bias and predetermination that
`renders any effort to petition the DEA to deschedule
`futile given that there has been no formal treaty
`changes. Further, as Petitioners note, only the judiciary
`
`
`
`9
`
`— not the DEA — can find the CSA’s classification of
`marijuana under Schedule I unconstitutional which
`renders the administrative process incapable of grant
`ing adequate relief.
`
`The DEA’s recalcitrance and bias are systemic
`it has created Kafkaesque rules for effectively negating
`any attempt to deschedule or reschedule marijuana.
`For example, for the DEA to consider rescheduling
`marijuana, a petitioner must show “marijuana has a
`currently accepted medical use in treatment in the
`United States.” Under the DEA’s 2016 decision, Peti
`tioners can only utilize federal research projects
`approved by the National Institute on Drug Abuse
`(NIDA) to support their claims, excluding recourse to
`almost all of the scientific studies accepted by the
`majority of state legislatures. Denial of Petition to
`Initiate Proceedings to Reschedule Marijuana, CFR
`Chapter II and Part 1301, Fed. Register, Vol. 156,
`53689, Aug. 12, 2016. NIDA researchers — who must
`have Schedule I research registrations — may only
`obtain cannabis from a cultivator registered with the
`DEA as a Schedule I manufacturer. However, the
`University of Mississippi has been the sole, limited,
`DEA registered Schedule I cultivator of marijuana
`for research purposes since 1968. And it typically
`produces only 500kg of plant material annually.
`Because of production restrictions, federally produced
`marijuana may have been harvested years earlier,
`stored in a freezer (which may diminish the quality
`and potency of the medicinal effects4) and often has a
`
`4 Thomas BF, Pollard GT, Preparation and Distribution of Canna
`bis and CannabisDerived Dosage Formulations for Investigational
`and Therapeutic Use in the United States, Frontiers in
`Pharmacology, 2016 7 285.
`
`
`
`10
`
`lower potency than marijuana sold in state regulated
`markets.5 Marijuana available through the federal
`system also lacks the genetic diversity and variety of
`products used by consumers in the 33 states and the
`District of Columbia that have some form of legalized
`cannabis. The DEA’s functional failure to accept other
`research findings that are sufficient for a supermajority
`of the states is a systemic bias.
`
`This systemic bias persists despite bipartisan
`political pressure to loosen restrictions on marijuana
`research. This is evidenced by the fact that the
`University of Mississippi has remained the sole
`Schedule I marijuana cultivator for over half a century.
`In 2016, the DEA appeared to finally be loosening
`this draconian restriction, soliciting applications from
`interested growers. But it has refused to either
`approve or deny any of those applications, a fact not
`made public until a lawsuit was filed by an applicant,
`Scottsdale Research Institute, LLC, in June of 2019.
`In re Scottsdale Research Institute, LLC, Case No.
`19 1120 (D.C. Cir., 2019). The D.C. Court ordered the
`DEA to respond to the 2016 petition by August 28,
`2019. The DEA provided notice of all the pending
`applications one day prior to the deadline, rendering the
`action moot, while simultaneously declaring that new
`rules would be imposed to evaluate the applications.
`See 84 Fed. Reg. 44,920 (Aug. 27, 2019). It was unclear
`initially why new rules were necessary to evaluate
`applications submitted in 2016, but the truth was
`revealed in April of 2020. The Department of Justice,
`through the Office of Legal Counsel, secretly rein
`
`5 Stith SS, Vigil JM, Federal Barriers to Cannabis Research.
`Science, 2016 352(6290) 1182.
`
`
`
`11
`
`terpreted 21 U.S.C. § 823(a) (i.e. the relevant statutory
`provision governing the applications), which resulted
`in every application effectively being rejected without
`any of the applicants being notified. See Licensing
`Marijuana Cultivation in Compliance with the Single
`Convention on Narcotic Drugs, 42 Op. O.L.C. (June 6,
`2018). This secret memorandum was only released as
`part of a settlement after one of the applicants brought
`claims against the Department of Justice and DEA
`under the Freedom of Information Act. See Scottsdale
`Research Institute, LLC, 2 20 cv 00605 JJT (D. Ariz.).
`
`Dr. Sisley and the Scottsdale Research Institute
`also filed a Petition to Reschedule Marijuana with
`the DEA on January 3, 2020, which was summarily
`rejected on January 8, 2020 in a two (2) page letter
`stating that the reasoning contained in the DEA’s
`2016 decision remained unchanged. Suzanne Sisley,
`M.D., et al. v. U.S. Drug Enforcement Administration,
`et al., Dkt. No. 20 71433, Dkt. Entry 1 6, Page 25 of
`203. (9th Cir., May 21, 2020). Dr. Sisley and Scottsdale
`petitioned the Ninth Circuit to have the DEA perform a
`comprehensive review of the 2020, 2016, and 1992 DEA
`decisions on de scheduling or re scheduling cannabis.
`The DEA moved to dismiss the petition because the
`petitioners failed to utilize the DEA’s administrative
`procedures. The Ninth Circuit denied the DEA’s motion
`despite Scottsdale failing to exhaust the DEA’s admin
`istrative remedies. Suzanne Sisley, M.D., et al. v. U.S.
`Drug Enforcement Administration, et al., Dkt. No. 20
`71433, Dkt. Entry 17 (9th Cir., August 18, 2020). The
`Ninth Circuit panel is now anticipated to hear argu
`ments on the merits at some point after the briefing
`schedule concludes on November 30, 2020.
`
`
`
`12
`
`Scottsdale exemplifies the DEA’s obvious and
`persistent bias. It refuses to act for years on basic
`administrative petitions until lawsuits are initiated,
`then maintains marijuana has “no accepted medical
`use in treatment” because it refuses to permit federal
`research to demonstrate its medical efficacy.
`
`B. Secretary Azar’s Demonstrated Bias
`
`Petitioners cited compelling evidence of bias by
`Attorney General William Barr, but the Second Circuit
`required demonstration of bias by Secretary Azar.
`Before the Second Circuit issued its final Order, Secre
`tary Azar publicly commented on Surgeon General
`VADM Jerome Adams Advisory on “Marijuana Use
`and the Developing Brain”6 during an August 29, 2019
`speech
`
`The President’s serious concern with Amer
`ica’s health and the risks of addiction is one of
`the reasons why he [referring to the President]
`recently donated his second quarter salary
`to promote the advisory that the Surgeon
`General is releasing today.
`
`* * *
`
`Especially as the potency of marijuana has
`risen dramatically over the past several
`decades, we don’t know everything we might
`want to know about this drug. But we do
`know a number of things It is a dangerous
`drug. For many, it can be addictive.
`
`6 https //www.hhs.gov/surgeongeneral/reports and publications/
`addiction and substance misuse/advisory on marijuana use and
`developing brain/index.html
`
`
`
`13
`
`* * *
`
`We need to be clear Some states’ laws on
`marijuana may have changed, but the science
`has not, and federal law has not.
`
`* * *
`
`Worryingly, marijuana use is also linked to
`risk for and early onset of psychotic disorders,
`such as schizophrenia, and the association
`strengthens with more frequent use, stronger
`THC content, and earlier first use. We are
`committed to more research on illuminating
`these risks, because one of the dangers is
`that we still don’t know all of the risks.7
`
`Secretary Azar’s comments are false, misleading,
`and showcase the bias of the agency’s decision maker
`towards marijuana the same bias that continues to
`predominate in many local and state law enforcement
`agencies throughout the United States. Most impor
`tantly, aside from the improper signaling of a desired
`predetermined outcome with a Presidential salary
`“donation,” Secretary Azar’s statement on a link
`between marijuana use and the onset of psychosis or
`psychotic disorders directly contradicts the DEA’s
`position in its 2016 denial letter
`
`At present, the available data do not suggest
`a causative link between marijuana use and
`the development of psychosis (Minozzi et al.,
`2010). Numerous large, longitudinal studies
`show that subjects who used marijuana do not
`have a greater incidence of psychotic diag
`
`7 https //www.hhs.gov/about/leadership/secretary/speeches/2019
`speeches/remarks on surgeon general marijuana advisory.html
`
`
`
`14
`
`noses compared to those who do not use
`marijuana (Fergusson et al., 2005 Kuepper
`et al., 2011 Van Os et al., 2002). Federal
`Register, Vol. 81, No. 156, pg. 53696 (August
`12, 2016).
`
`Secretary Azar’s comments reflect either bias
`or flat out misunderstanding of accepted scientific
`literature by the executive with binding authority on
`the Attorney General on the topic of “scientific and
`medical evaluations” on substances. See 21 U.S.C.
`§ 811(b) (stating that “[t]he recommendations of the
`Secretary to the Attorney General shall be binding on
`the Attorney General as to [the] scientific and medical”
`evaluation of substances considered for scheduling).
`Petitioners have catalogued the myriad examples where
`the Federal Government has already recognized the
`medical efficacy of marijuana, which need not be
`repeated here but further cements the futility of
`administrative exhaustion with the DEA.8
`
`8 See Petition, pp. 16 21 (“U.S. Surgeon General Vivek Murthy
`(America’s Chief Medical Officer) announced on national television
`(2015) that cannabis can safely provide bonafide medical benefits
`to patients” “The Federal Cannabis Patents include assertions
`that cannabis constitutes an effective medical treatment for an
`assortment of diseases and conditions, including, inter alia,
`‘ischemic, age related, inflammatory and autoimmune diseases,’
`and ‘in the treatment of neurodegenerative diseases, such as
`Alzheimer’s Disease, Parkinson’s Disease, and HIV Dementia’
`(Id.). Thus, the federal government claims in its Federal Cannabis
`Patents that cannabis safely provides medical benefits to patients
`while simultaneously criminalizing cannabis under the CSA
`based upon “findings” that it has no medical application and is
`too dangerous to administer, even under medical supervision.”)
`
`
`
`15
`
`II. THE DEA’S FAILURE TO CONSIDER DESCHEDULING
`PERPETUATES RACIAL BIAS AND SOCIETAL HARMS
`BY DRIVING MARIJUANA CRIMINALIZATION AND
`UNEQUAL ENFORCEMENT
`
`Perhaps the most dangerous aspect concerning
`marijuana, however, is the mischaracterization of its
`“criminal element” by local and state law enforcement
`authorities to incarcerate Black individuals a factor
`the DEA relied on and characterized as “the reputa
`tion of the substance ‘on the street” in its August 12,
`2016 Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana, CFR Chapter II and Part 1301,
`Fed. Register, Vol. 156, 53688.
`
`From 2010 to 2018, more than 6.1 million individ
`uals were arrested for marijuana related offenses.9
`In 2018, there were almost 700,000 marijuana arrests,
`which accounted for more than 43% of all drug
`arrests in the United States. In fact, in 2018, law
`enforcement made more marijuana related arrests
`than all violent crimes combined.10 Further, it is not
`clear that marijuana arrests are trending down—they
`have actually risen in the past few years, with almost
`100,000 more arrests in 2018 than 2015. Thus, even
`if Petitioners can access marijuana under their state’s
`medical or adult use programs, they continue to be
`
`9 E. Edwards, E. Greyak, B. Madubounwu, et al., A Tale of Two
`Countries Racially Targeted Arrests in the Era of Marijuana
`Reform, 2020, 22. https //www.aclu.org/report/tale two countries
`racially targeted arrests era marijuana reform
`
`10 FBI Marijuana Arrests Rise for Third Year in a Row, Outpace
`Arrests for All Violent Crimes, National Organization for the
`Reform of Marijuana Laws, October 3, 2019, https //norml.org/news/
`2019/10/03/fbi marijuana arrests rise for third year in a rowout
`pace arrests for all violent crimes.
`
`
`
`16
`
`rightfully concerned about the potential ramifications
`due to marijuana’s federal illegality. Just by accessing
`needed medicine, Petitioners open themselves up to
`a
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