



The fight over cannabis’ scheduling began at the US-Mexico border in 1969.

The briefings declare that it began in 2002, but in fact the lawsuit which reached its final end last week has its roots all the way back in 1969, when Timothy Leary beat his possession charge and legalized pot nationwide at the same time.

The saga began when Leary, who had been finally run out of upstate New York by neighbors irate from the orgiastic bacchanalias which regularly ruptured out the doors of his bucolic estate, tried to renew his sociological and epistemological experiments in a new venue across the Mexican border. He never made it there. The Mexicans were forewarned of his travels, like as not, and ordered him to turn around. After he complied, US agents demanded to search his car.

They didn’t find much – just three roaches, some seeds and dry shake – but it was enough. The federal law in place at the time, the Marihuana Tax Stamp Act of 1937, prohibited possession of any amount of cannabis without a federal tax stamp granting the right to own it. Leary didn’t have a stamp. He was arrested at the border.

Leary (C) with Allen Ginsberg (L) and Dr. John C. Lilly (R)

The nascent hippie community came to his aid, and he managed to finance an appeal all the way to the Supreme Court of the United States on the basis that the federal pot law trampled on his Fifth Amendment rights. The Tax Stamp Act required him to register his pot with the federal government; but the state in which he was found, Texas, criminalized all possession of the evil weed, regardless of whether any tax had been paid to Washington. So, his attorneys reasoned, compliance with the federal cannabis law required him to confess in writing to a state crime. That was the very kind of self-incrimination the Fifth Amendment was penned to protect against.

The Court ruled unanimously for Leary. Compliance with the Tax Act would indeed have infringed Leary’s constitutional rights, so it would have to go. And just like that, pot was legal – federally, at least.

Some (namely Nixon and Congress) just couldn’t handle that, and so the Washington establishment took the opportunity to consolidate disparate federal laws under one bill, the Controlled Substances Act (CSA), which remains in force to this very day. The CSA created five ‘schedules’ of drugs with varying levels of restrictions attached to them; of the five schedules, only Schedule I (which states that its listed drugs have “no currently accepted medical use in treatment”) can really be called criminalization. The other four are largely a matter of red tape.

At the time, the federal government was remarkably refreshing in the way it admitted its ignorance on the subject of ‘marihuana.’ A blue-ribbon commission adjourned by President Kennedy earlier in the decade had found the experience of supposed experts severely lacking; in fact the law which had just been overturned had passed in 1937 largely on the basis of ‘expert testimony’ by a horse veterinarian and a bevy of racist innuendo courtesy of the nation’s first drug czar, Harry Anslinger. (Actually, by 1969 Congress had access to the Siler Report and the conclusions of the LaGuardia Commission, but they were ignored.) So marijuana was placed in Schedule I on the recommendation of Assistant Secretary of Health Dr. Roger O. Egeberg, who reasoned that “since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marijuana be retained within schedule 1 at least until the completion of certain studies now underway to resolve the issue” (yes, this is the same letter that helped to change the mind of Dr. Sanjay Gupta ). The “certain studies underway” referenced by Dr. Egeberg referred to the investigations of the so-called Shafer Commission, packed with President Nixon’s friends and charged with finally getting to the bottom of this marihuana stuff. The Commission’s report was due in a few years and there was an informal understanding, clear from the Congressional record, that its recommendations concerning cannabis would replace the temporary scheduling.

That is why Nixon went ballistic when the Shafer Commission released its report in 1972, recommending decriminalization. Instead of honoring the recommendation of his former friends, he condemned the commission and refused to reschedule.

NORML founder Keith Stroup, an early supporter of the rescheduling effort

A day in court

NORML wasted little time. Before the year was out, the brand-new pot consumer advocate had filed papers with the DEA formally requesting a rescheduling, arguing that cannabis had no place in Schedule I; but the ponderous bureaucracy of the federal government did everything in its power to drag its feet. Eventually, NORML had to sue, not once but three times (1974, 1977, and 1980), to force the DEA to even give them a response to their petition. Finally, they got their answer – “no,” of course – allowing them to move up the chain of command.

Federal law allows agencies broad discretion to set rules, when the authority to do so has been delegated by Congress. There are limits, however, and the federal Administrative Procedure Act forbids agency decision-making which is by nature “arbitrary and capricious.” NORML began to assemble the case that the DEA’s decade-long pattern of delay and ultimate refusal to reschedule a relatively harmless drug was just that.

The hearings which followed, under the gavel of DEA administrative law judge Francis Young, took nearly two years to complete and interviewed top experts in the medical field. At their conclusion Judge Young ruled, 16 years after the petition was first filed with the DEA, that “the overwhelming preponderance of the evidence in this record establishes that marijuana has a currently accepted medical use in treatment in the United States for nausea and vomiting resulting from chemotherapy treatments in some cancer patients. To conclude otherwise, on this record, would be unreasonable, arbitrary and capricious.”

NORML had won. Advocates nationwide rejoiced, imagining that federal prohibition would be revoked within weeks.

But twenty-five years later, it’s still around.

A glimmer of hope

Around the end of the 1980s, the war on cannabis began to take a turn. Besides a major loss in Judge Young’s courtroom, the federal offices of drug control began to sweat a new movement taking root in an overlooked neighborhood of San Francisco.

The movement had actually begun right under the DEA’s nose in a sleepy suburb of Washington, D.C., when Robert Randall began growing cannabis on his balcony so he’d have a steady supply to treat his glaucoma. In 1975 local cops stumbled across his grow by sheer accident and booked him; the D.A. offered a plea bargain, expecting a routine result.

But Randall shocked them all by refusing the plea and demanding a trial. In a monumental “David and Goliath” moment for the American legal system, the mild-mannered speech professor beat his cultivation rap, established the medical marijuana necessity defense, and then successfully sued the federal government into providing him with a free monthly tin of government joints for life. By the late Eighties, word of the deal (known as the “Compassionate IND program”) had begun to spread among a community which desperately needed it: the AIDS-stricken patients of San Francisco.

Randall, posing with his government-supplied stash

The condition known as “AIDS wasting syndrome” is a terrible disease. Unable to eat food without immediately vomiting, those afflicted with it waste away into mere skeletons before finally succumbing to death. Hearing anecdotal reports of pot’s efficacy for treating severe nausea, some local activists – notably Dennis Peron and Dr. Donald Abrams – began risking imprisonment to supply potent buds to suffering patients. As those patients began to experience relief, word spread quickly – and thus the medical marijuana movement was born.

Inevitably, the California AIDS community learned about Robert Randall and Compassionate IND; inevitably, requests for legal medical marijuanabegan to bury the DEA. And NORML was still hanging around, demanding compliance with Judge Young’s ruling. Something had to be done, fast – so they shut the whole program down. Compassionate IND was closed to all new applicants in 1991; thousands of AIDS patients were left out in the cold. And Judge Young’s ruling was simply ignored.

The final stand

The suit which the US Supreme Court finally rejected on October 7th was the result. In 1991, the Alliance for Cannabis Therapeutics, a group co-founded by Robert Randall, sued the DEA yet again, armed this time with Francis Young’s opinion and demanding that they follow the logic of their own judge.

That was 22 years ago. Since then, the federal government has used every tactic available both in and out of court to delay the final conclusion as long as possible. After all the bangs of several remands back and forth between bureaucratic paperwork and the federal courts, numerous appeals, procedural joinder of new parties, more remands and still further appeals, the suit to reschedule cannabis ended with a resounding whimper: the Supreme Court, refusing to even listen to the case, buried their refusal in a 94-page form sheet. The long saga, beginning a half century ago when Timothy Leary got searched at the border, has finally ended.

And cannabis is still classified Schedule I.