August 24, 1998

(Ed. note: I think that the reporter found more disagreement than actually exists among the movement lawyers, but this article gives some insight into the complexity of the court challenge to marijuana prohibition.)

LAWYER SUES U.S. TO OVERTURN BAN ON MARIJUANA

Cited in the suit, which seeks to allow medicinal use, are personal stories like the one of a Philadelphia AIDS patient and activist.

By Joseph A. Slobodzian INQUIRER STAFF WRITER

It’s been said that nothing is so powerful as an idea whose time has come, and lawyer Lawrence Elliott Hirsch may be right: That now is the hour to sue to legalize the medical use of marijuana.
See www.fairlaw.org 

After all, it’s been two years since Californians approved a ballot question legalizing the medical use of marijuana to help patients suffering from such illnesses as cancer, AIDS and glaucoma.

In the last month, state officials in Nevada and Washington state have certified referendums for November’s general election on legalizing marijuana for medical use.

And in Camden County, Edward Forchion, an independent candidate for county freeholder running on the "Legalize Marijuana" slate, has staged a high-profile campaign that has gotten him charged with possession of a controlled dangerous substance after he openly smoked a joint in both Camden County Democratic headquarters and the office of U.S. Rep. Robert Andrews (D., N.J.).

Smelling the winds of change, Hirsch said he decided that the time was right to use the weapon of a federal class-action lawsuit to end the government’s 61-year-old ban on the herb aficionados prefer to call by its Latin name, cannabis.

"This has to be the hottest issue since communism," said Hirsch, 59, in a recent interview. Hirsch’s lawsuit, filed last month in U.S. District Court, lives up to his description as being a "grass-roots effort." Most of the lawsuit’s 128 pages are taken up with the life stories of 164 plaintiffs who contend they have found significant health benefits to smoking marijuana.

Among the plaintiffs in the suit are Kiyoshi Kuromiya, 55, an AIDS patient and activist from Philadelphia
See www.critpath.org
who says using marijuana helped him gain 40 pounds he had lost through "AIDS wasting syndrome," and Nancy Jamison, who operates a Boston nonprofit corporation distributing food to the poor.

Jamison has used marijuana to combat the pain and symptoms of multiple sclerosis, a crippling nerve disorder. Hirsch said the lawsuit had been two years in the making, since he began advertising for plaintiffs at a convention of the Washington-based Drug Policy Foundation, which has lobbied to change U.S. drug laws.

The lawsuit has been assigned to U.S. District Judge Marvin Katz, a 15-year veteran on the federal bench, and is awaiting a formal appearance by a lawyer for the only defendant: the United States of America. First Assistant U.S. Attorney Michael L. Levy said that the lawsuit would be defended by lawyers for the Justice Department in Washington, and that those lawyers were drafting a motion to dismiss the lawsuit.

Hirsch said he was not worried: "I can’t wait to hear the official response." Almost as unusual as the length of Hirsch’s lawsuit is the nature of its claim: It seeks, in classic constitutional parlance, the "redress of grievances by the people," as it reads in the final clause of the First Amendment, for the "government prohibition of therapeutic cannabis." It was for that reason, Hirsch explained, that he purposely sued the U.S. government as an entity rather than naming individual defendants such as U.S. Attorney General Janet Reno, or Barry McCaffrey, the Clinton administration’s drug czar.

Unlike the government’s ill-fated 13-year effort to ban the use of alcohol except for medicinal purposes, enacted by the 18^th Amendment and repealed by the 21^st in 1933, Hirsch noted that laws prohibiting marijuana were imposed by Congress in the Controlled Substances Act of 1970 and in subsequent federal regulations by the Justice Department and the predecessor to the Drug Enforcement Administration.

"What we have now is prohibition without a constitutional amendment," Hirsch said. Although the First Amendment’s "redress of grievances" phrase is often interpreted to mean the people’s right to petition Congress or the president, Hirsch argues that the wording does not exclude a court challenge.

"It is absolutely the responsibility of the courts to determine the constitutionality of laws," Hirsch said. "This isn’t a political question, it isn’t a legislative question, it isn’t an executive question. It’s a judicial question."

Hirsch could be right. But it’s the judicial answer that scares a lot of others in the marijuana legalization movement. "Of course I’m concerned about making bad law," said Keith Stroup, a lawyer and executive director of the National Organization for the Reform of Marijuana Laws (NORML), the Washington-based group that has campaigned to legalize cannabis since 1970.

Stroup said he and NORML lawyers were to obtain a copy of Hirsch’s lawsuit and would consider whether to support it, either as a "friend of the court" or by providing expert witnesses if the case gets to trial. "We’re not in disagreement with [ Hirsch’s ] goals," Stroup said.

"The real question is whether we’re using limited resources wisely and in a way that supports the social change we’re seeking. "We’re not in the 1970s anymore. . . . The federal courts today are a much more conservative body, and judges generally are unwilling to take on issues of social or political change."

NORML has been down this route before. In 1972, it launched a suit petitioning the DEA’s predecessor, the Bureau of Narcotics and Dangerous Drugs, to legalize cannabis. In 1988, after the prodding of a federal appeals court and two years of hearings, Francis L. Young, then chief DEA administrative law judge, concluded that the evidence "clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary, and capricious for DEA to continue to stand between those sufferers and the benefits of this substance."

The DEA director at the time, John Lawn, rejected Young’s findings, a ruling that was upheld when NORML appealed the decision to the U.S. Court of Appeals for the District of Columbia.

At that point, Stroup said, NORML looked at the complexion of the U.S. Supreme Court and decided not to appeal further, fearing it could wind up with "bad law": binding Supreme Court precedent against legalizing marijuana.
(Ed. note: The old NORML suit was for a much more limited objective of getting marijuana moved to Schedule II. The Hirsch suit is much broader in its objectives.

Also when a suit is brought by a large number of plaintiffs, it is very different from a suit brought by NORML and other organizations. The NORML suit was about abstract rights. The Class Action is about the rights of a large number of individuals.)

Since then, Stroup said, NORML has supported the two-year-old petition by Jon Gettman, a former NORML president, and Trans High Corp., the publisher of High Times Magazine, asking the DEA to end the marijuana prohibition.

Hirsch, however, derides Stroup’s and NORML’s concerns about his lawsuit’s potential for creating "bad law," noting that the government has essentially phased out its short-lived experiment of providing marijuana to eligible patients who are seriously or terminally ill.