Amicus Curiae Brief — Marvin Washington, et al., Petitioners v. William P. Barr, Attorney General, et al.

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

ELIYAHU S. SCHEIMAN

GARY WEINSTEIN

PORZIO, BROMBERG & NEWMAN, P.C.

100 SOUTHGATE PARKWAY

MORRISTOWN, NJ 07962

(973) 889-4232

ESSCHEIMAN@PBNLAW.COM

COUNSEL OF RECORD

330 WASHINGTON ST.

PMB #368

HOBOKEN, NJ 07030

(551) 208-2447

GPW2@CORNELL.EDU

MATTHEW J. DONOHUE

PORZIO, BROMBERG & NEWMAN, P.C.

100 SOUTHGATE PARKWAY

MORRISTOWN, NJ 07962

(973) 810-6240

MJDONOHUE@PBNLAW.COM

COUNSEL FOR AMICUS CURIAE

SEPTEMBER 11, 2020

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 DESCHEDULING PERPETUATES RACIAL BIAS AND

SOCIETAL HARMS BY DRIVING MARIJUANA

CRIMINALIZATION AND UNEQUAL ENFORCEMENT ............................................................... 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/advisoryon-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-marijuanaadvisory.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-countriesracially-targeted-arrests-era-marijuanareform ................................................................ 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-yearin-a-rowoutpace-arrests-for-all-violentcrimes ................................................................. 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 Cannabis-Derived 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 incarcerated and serve disproportionate sentences for nonviolent 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) nonprofit organization, advocates for individuals sentenced

for nonviolent marijuana offenses, as well as for those

still suffering the collateral consequences of a marijuana 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 neighborhoods, 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 dis1 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 legalized 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 disparities. Through policy reform, legislative advocacy, and

impactful direct service programs, LPP secures release

for nonviolent marijuana offenders from incarceration, 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 unconstitutional, and remove it from the Act.

SUMMARY OF ARGUMENT

The District Court erred in requiring Petitioners to

bring their claims to the Drug Enforcement Administration (DEA) rather than determine the constitutionality of marijuana scheduling under the CSA.

The Second Circuit compounded this error by ignoring

the futility exception to the exhaustion doctrine. Exhaustion 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) predetermined bias renders the outcome a foregone conclusion. 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 decision — 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 DEMONSTRATED 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 Administration, 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 reschedule 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 administrative 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 granting 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 obligations’ under the Single Convention.” 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. 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 granting 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, Petitioners 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 Cannabis and Cannabis-Derived 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 rein5 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 administrative remedies. Suzanne Sisley, M.D., et al. v. U.S.

Drug Enforcement Administration, et al., Dkt. No. 2071433, Dkt. Entry: 17 (9th Cir., August 18, 2020). The

Ninth Circuit panel is now anticipated to hear arguments 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, Secretary 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 America’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-anddeveloping-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 importantly, 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 diag7 https://www.hhs.gov/about/leadership/secretary/speeches/2019speeches/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 reputation 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 individuals 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-countriesracially-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

arrest, criminal penalties, civil sanctions, adverse

effects on employment opportunities, and more.

Disturbingly, Black people continue to bear the

disproportionate brunt of those arrests. The ACLU

performed a comprehensive analysis and ranked state

and county level arrest ratios by considering counties

with populations greater than 30,000, greater than 1%

Black population, and more than 50% data coverage,

which accounts for 81% of the U.S. population. In

2018, 96.1% of these counties (1,081 counties total)

had a rate ratio greater than one, indicating a higher

likelihood of arrest for Black people than white people.

In other words, in less than 5% of these counties was

the rate ratio equal to or lower than one — i.e., white

people were as likely as or more likely than Black

people to be arrested for marijuana possession. This

was the case despite the fact that use of marijuana

and recent use by race do not significantly differ

between Black and white populations.11 Therefore, the

wide racial disparities in marijuana possession arrest

rates cannot be explained by differences in marijuana

usage rates between Black and white people.

Yet in states where marijuana has been legalized,

there is no influx of “danger” or “crime.” Rather, it

11 The Substance Abuse and Mental Health Services Administration (SAMHSA), a federal branch of the U.S. Department of

Health and Human Services, conducts nationally representative

annual surveys of marijuana use over respondents’ lifetime, over

the past year, and over the past month. SAMSHA, Results from the

2018 National Survey on Drug Use and Health, See Table 1.26B.

17

results in significant social equity implications12, and

increased job opportunities13. Moreover, state marijuana legalization has not only led to decreased

unemployment and increased jobs and economic opportunities, but a radical shift in state prosecution of both

marijuana misdemeanors and felonies. States that have

bucked the harmful bias reflected in DEA policies and

practices by legalizing marijuana have consistently

experienced significant reductions in marijuana arrests

and significant increases in job creation and tax

revenues.14

The scheduling, and criminalizing, of marijuana

has unreasonably persisted for far too long because

of the DEA’s failure and unwillingness to perform the

basic duties of an administrative agency. Petitioning the

DEA to deschedule marijuana is pointless. Petitioners

should not have been required to do so to get their

day in court.

12 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.

13 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

14 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.

18

CONCLUSION

Petitioners were wrongly denied the opportunity

to pursue the extent of Secretary Azar’s bias and

demonstrate the numerous ways that the DEA has

created indefinite timelines and biased determinations

that should have exempted Petitioners from having

to exhaust their administrative remedies. To require

administrative exhaustion, in the face of having

explicitly recognized its fundamental futility, constitutes 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. For

the foregoing reasons, the judgments below should be

reversed and remanded.

Respectfully submitted,

GARY WEINSTEIN

ELIYAHU S. SCHEIMAN

COUNSEL OF RECORD

PORZIO, BROMBERG &

NEWMAN, P.C.

100 SOUTHGATE PARKWAY

MORRISTOWN, NJ 07962

(973) 889-4232

ESSCHEIMAN@PBNLAW.COM

330 WASHINGTON STREET

PMB #368

HOBOKEN, NJ 07030

(551) 208-2447

GPW2@CORNELL.EDU

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