Connect with us

Cannabis Now

Cannabis Now

Cannabis’s Unlikely Friend in the Fight for Reform: The Courts

Cannabis Court Cases Mexico Italy
Photo U.S. Air Force


Cannabis’s Unlikely Friend in the Fight for Reform: The Courts

As recent rulings in Mexico and Italy demonstrate, cannabis reform can sometimes be enacted through court rulings. The same is true in America.

The cannabis scene in Italy is changing quickly. As many as 1,000 shops selling low-THC, high-CBD products have appeared in major cities over the past few years, but cannabis is still definitely illegal: While possession is decriminalized and is punishable by a fine and some paperwork, sales can result in a six-year prison term and a 75,000 euro fine.

But let’s say you want to grow a little pot at home. That’s apparently now OK, though you might not find permission outlined in any law on the books. Permission to cultivate was instead granted recently by the country’s Supreme Court, which ruled on Dec. 19 that “small amounts grown domestically for the exclusive use of the grower” are perfectly acceptable.

As Reuters reported, the ruling apparently went unnoticed for more than a week before it touched off some intense (and maybe a bit histrionic) debate among lawmakers on Friday. (The left is good with it, the right hates it, the middle is a little worried about going too fast!) But what makes the ruling the hook for a trend piece is the fact that it’s the latest in a recent string of drug-policy reform victories won via the courts — which is maybe how it always should have been.

Last year, it was Mexico’s Supreme Court that ruled that the country’s ban on recreational cannabis was unconstitutional, violating the very document upon which the state is based. In that instance, it was the fifth such ruling on cannabis, which in Mexico means a legal precedent is created upon which lawmakers are compelled to act. In the cannabis case, when those lawmakers didn’t act, choosing instead to dither and stall, it was the same Supreme Court that ordered lawmakers to act and amend national law to explicitly allow adults to possess cannabis without fear of prosecution.

How or why did the courts do this? In Mexico, the courts were ruling on a series of legal challenges brought by citizens and argued by lawyers. This is how the law is supposed to work — and this is how it’s worked, to some degree, in the United States, though without any epochal, Brown vs. Board of Education-worthy revolutions on the cannabis question.

Judges are given some limited discretion as to how to interpret the law, but have significant leeway via an ambiguous but very useful clause: “in the interest of justice,” a sort of catch-all, “f*ck it, we’re out” emergency exit that allows either a prosecutor or a judge to end a prosecution. But even if a conviction in a cannabis case was won, a judge still had leeway to punish — or not punish — the offender accordingly. It was only after the imposition of mandatory minimums that courtrooms became halls of horrors for cannabis defendants.

With a handful of exceptions, in the United States, legalization and medical marijuana access have been won with the popular vote, with ballot initiatives. It was this way because certain lawmakers among us decided that demonizing and prohibiting (certain) drugs and disenfranchising and imprisoning their users was an effective technique to grab and hold onto power. And when the laws weren’t punitive enough, or when judges were too lenient, lawmakers took away the courts’ discretion with mandatory minimums, baking the punishment into the statute outlining the crime. There are many examples of justices who ruled against what a reasonable person might view as the just cause because doing so would violate a law they nonetheless deplored.

However, at least recently, what the courts have done is interpret voter or legislator-initiated laws to mean that citizens are generally allowed more cannabis access than law enforcement or regulators allowed. In Colorado, the state Supreme Court ruled that drug-sniffing dogs can’t be deployed until there’s suspicion of a crime — a dog’s mere alert is not enough.

And a federal appeals court ruled that a case challenging cannabis’s position in the Controlled Substances Act can proceed — a procedural victory, but validating nonetheless. Many strict rules imposed on Florida medical marijuana patients and businesses by the state legislature or state regulators, including a ban on smoked cannabis, have been tossed out by the courts. Dabs and other cannabis concentrates were made explicitly legal by that state’s Supreme Court.

What’s going on here? Is the bench stuffed with pot-loving freaks? Unlikely — just as unlikely as a world in which judges are bending to the will of the people.

In many jurisdictions in the United States, judges are political appointees. Where they’re not, they’re elected, but in either case, it’s exceedingly difficult to remove a judge once they’re seated. You could make the argument that judges are inclined to rule towards cannabis reform because that’s what the people want, but a judge legislating from the bench might find themselves the target of a recall effort or ethics complaint — and no amount of challenges have managed to undo federal prohibition, which remains Congress’s will and thus the law of the land.

At the same time, when the issue has arisen, it’s the courts that interpret the will of the voters and the will of the people. If voters in Florida want legal medical marijuana, they probably mean they also want to smoke it, because that’s what people do. If medical cannabis is legal in Arizona, and the voter initiative doesn’t say “but not concentrates,” it means medical cannabis concentrates are legal. In this way, the courts aren’t so much a guiding light but a helping hand — and that’s more than can be said for some lawmakers.

TELL US, how do you think cannabis should be legalized?



  1. Maxcatski

    July 14, 2020 at 8:48 am

    Regardless what Year says (at great length), cannabis legalization in the US must be legislated at the federal level, as was done in Canada. Get a candidate who promises to legalize and vote them in. “What?” you say. “Another four years of Prohibition?” Get better candidates. Your system is broken. Sincerely, Canada

  2. YearofAction

    January 8, 2020 at 10:00 pm

    The House Energy and Commerce Subcommittee on Health will have a hearing on marijuana reform on Jan. 15, 2020, a.k.a. Martin Luther King’s birthday.

    If your member of Congress is on the subcommittee, they can be contacted about reconstructing the malformed federal definition of marijuana.

    Bottom of the page:

  3. YearofAction

    January 7, 2020 at 10:27 pm

    In the U.S. in 1937, when the deceptive and malformed federal definition of “marihuana” was introduced, the Federal Bureau of Narcotics was charged with enforcing marijuana prohibition. The FBN was also allowed to decide what the malformed definition meant.

    The FBN chose to misconstrue its meaning in the way that disrespected the Constitution, when they decided that marihuana meant cannabis, perhaps as “a favor, with reciprocation” for the corporations owned by their family and friends. The FBN was especially against the smoking of marihuana, which is actually the smoking of cannabis.

    The FBN thus became judge and prosecutor in all things related to marihuana, which meant cannabis. This violated the Separation of Powers doctrine. The privileges of that violation were later forwarded to the DEA, then sustained by the Chevron Deference. The courts and the other federal agencies then deferred to the DEA Chief Administrative Law Judge’s false trope that “…the term ‘marijuana’ refers to ‘the marijuana plant, considered as a whole’.”

    Justice Stevens even suggested to Ms. Raich that the definition of marihuana was “Necessary and Proper”, so she had to stop giving it away because of the Commerce Clause. If he would have examined the definition, he would have learned that it is not, and that the Commerce Clause had no problem with cannabis commerce.

    Cannabis should not be “legalized” at the federal level, but it should be carefully descheduled by reconstructing the federal definition of marihuana in the necessary and proper way to uphold the Constitution. The definition will then will inform states and communities about how to regulate uses of cannabis, rather than deceive them with its prohibition. Marijuana itself will remain in Schedule 1, but then it can be separately descheduled or rescheduled by reconsidering its adulterated medical value. The Chevron Deference will then work in our favor.

    We the People can apply our votes and supportive efforts to convince our members of Congress to reconstruct the current malformed federal definition of “marihuana”. We can tell them to eliminate all three of these deceptions that have persisted since 1937:

    1. The Disparaging Racism imbued into that federal law by the use of the Mexican slang term “marihuana”.

    2. The Dismembered Riddle that adumbrates how marijuana is actually derived from cannabis: Marijuana is what substance that is “all parts of the plant Cannabis sativa L.”, and simultaneously “does not include the mature stalks of such plant”?

    3. The Unjust Aggrandizement of marijuana prohibition that subsumes the legitimate federal prohibitions of cannabis use, which are established by the 2nd, 9th, 10th, and 14th Amendments.

    These deceptions can be eliminated all together, and altogether, by reconstructing the malformed federal definition of marijuana to:

    1. Replace the disparaging racist term “marihuana” with its anglicized homonym “marijuana”.

    2. Replace the riddle that adumbrates the meaning of marijuana, with a clear description of how marijuana is actually derived from cannabis.

    3. Include the specific, legitimate federal prohibitions of cannabis use from the 2nd, 9th, 10th, and 14th Amendments, which control the undesired proliferation of cannabis smoke.

    The reconstructed definition will then carefully deschedule cannabis by upholding the Constitution, and it could look like this:

    Sec. 802.
    (16) The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L., which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is their intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.

    Compare it to the current malformed federal definition:

    Sec. 802.
    (16)(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
    (B) The term “marihuana” does not include (i) hemp, as defined in section 1639o of title 7; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

    The current definition is Necessary and Proper? Yeah right. /s

Leave a Reply

Your email address will not be published. Required fields are marked *

More in Legal

To Top