On the final day of a calendar year filled with historic cannabis policy reforms, the parties of an equally historic federal hearing filed their first written arguments based on the five days of testimony heard by Judge Kimberly Mueller in Sacramento, California. Judge Mueller, who held the hearings to determine the constitutionality of the continued Schedule I classification of cannabis in her courtroom in the federal Eastern District of California, has scheduled her next hearing on the matter for early February.

In contrast to their lines of questioning at the hearing’s oral examinations — which focused almost entirely on the Controlled Substances Act’s criteria for inclusion in Schedule I — government lawyers broadened their written arguments to more general substantive, as well as procedural, points which may ultimately prove more defensible (once again, attorney John Balazs has stepped up to post the briefs on his blog).

Whereas Assistant US Attorneys Richard Bender, Samuel Wong and Gregory Broderick resort at times to circular logic and other fallacies in order to argue that cannabis meets every Schedule I criterion, they reserve equal space within their brief to an attempt to reframe the issue as one of the propriety of classifying cannabis under any of the federal schedules, and not necessarily Schedule I in particular. Referring to the limited question before the court as to whether the federal government had a rational basis for their decisions, the prosecutors conclude that Mueller “should reject defendants’ invitation to be the only court to hold that there is no rational basis for marijuana’s treatment under the Controlled Substances Act.”

While the rhetorical move has a post hoc air to it, the argument may well carry the day on a procedural technicality. As the government attorneys point out near the end of their brief, the language of the Controlled Substances Act does not turn on which schedule in which a drug may be filed, but whether it is scheduled at all — citing 21 U.S.C. section 841(a) which makes it “unlawful for any person knowingly or intentionally [to] manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” [emphasis added] as well as provisions basing sentencing on the number of plants cultivated and not the scheduled classification of those plants according to federal law.

This argument may well prove dispositive. As the Leaf has pointed out elsewhere, merely moving cannabis from Schedule I to Schedule II will not reduce its federal illegality — cocaine is listed in Schedule II, but illicit cocaine distributors still wind up in federal prison. Thus, while the defense brought strong arguments against the purported rationality of cannabis’ inclusion in Schedule I, Judge Mueller may well rule such arguments irrelevant for the seven defendants currently at trial before her. Such a move would have the effect, through the esoteric doctrine known as “standing,” of rendering the hearing’s precedent null and void.

Judge Mueller has set a deadline for written response briefs filed by January 21st, and has continued the motion to the next courtroom hearing on February 4th.