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July 25, 2017

Shouldn't latest lawsuit challenging federal marijuana prohibition include an Eighth Amendment claim?

The question in the title of this post is my (sentencing-addled?) reaction to seeing the 89-page complaint filed yesterday on behalf of a number of notable plaintiffs in federal district court. The full complaint, which is available at this link, is summarized by Keith Stroup, legal counsel for the advocacy group NORML, in this new posting.  Here is part of that summary: 

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution....

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution. Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

Like every self-respecting law professor, I love novel constitutional claims -- they are certainly "good for business."  Consequently, I am intrigued and bemused by the effort to bring down the CSA as a violation of the First Amendment and the "Right to Travel."  But, especially because the CSA includes criminal penalties for any and all marijuana use, even if that use is recommended by a doctor for a serious medical condition, I have long thought there could be a viable Eighth Amendment claim that possible federal prosecution for some marijuana activity threatens a form of "cruel and unusual punishment."

A big new lawsuit attacking the CSA on various grounds on behalf of medical marijuana patients would now seem to present good new opportunity to bring a big new Eighth Amendment claim.  After a lot of recent initiative and legislative reforms, some kind of medical marijuana reform is the law in roughly 90% of US jurisdictions (details here).  And the Supreme Court's Eighth Amendment jurisprudence always talks up "evolving standards," and it often stresses the import of "objective indicia of society’s standards, as expressed in legislative enactments and state practice" to evidence a "national consensus" against a particular type of punishment.  It thus strikes me that there is now an especially strong argument that there is now an especially strong national consensus in the US against criminally punishing anyone for using marijuana for a legitimate medical reason.

But perhaps I am missing something when I think about this issue in Eighth Amendment terms, and perhaps a reader can help me identify a possible good reason for this new lawsuit to be missing an Eighth Amendment argument.

July 25, 2017 at 05:34 PM | Permalink





Posted by: anon | Jul 25, 2017 9:03:36 PM



Posted by: anon | Jul 25, 2017 9:06:25 PM

Harmelin v. Michigan?

Posted by: John | Jul 25, 2017 9:07:45 PM

How successful has Eighth Amendment arguments been outside of the death penalty context and when minors are involved? There might be a determination other arguments might be more likely to get a hearing, including from libertarian and conservative judges.

So, there is an attempt to use an argument that the government regulation is unreasonable, federalism, travel [some areas have medicinal marijuana laws, other do not, burdening travel], discrimination and First Amendment (getting particularly friendly reception; here, largely based on the type of groups likely to use marijuana and the tendency to target them based on their beliefs and causes, including protest).

The catchall nature of the claims would seem to make medicinal marijuana also an 8A issue, as addiction was used in the 1960s for both alcohol and drug laws to some extent. Physical and mental conditions are also used to argue a mitigation of punishment is warranted there as well. In effect, argue that the person is not or less of a "criminal" at all. But, the evolving standards argument there hasn't been that useful except in narrow areas. Medicinal marijuana might be a promising opening wedge though.

Posted by: Joe | Jul 25, 2017 10:40:16 PM

I would like to hear more about a potential Eighth Amendment claim. How does the CSA violate it?

The threat of arrest and the threat of prison is not enough as a violation. The government will say, we have never arrested a little handicapped kid with epilepsy. Doesn't the Eighth Amendment apply after conviction, and at the time of actual sentencing?

I could not see any illegal marijuana dealers among the plaintiffs. They have a better Eighth Amendment claim, long prison term for providing a beneficial and harmless substance even to marijuana addicts who just suffer from anxiety, and find relief. But only a convicted and imprisoned plaintiff would have a claim.

Go to Section III A, paragraph 2, below, for a circuit court review of this question. I did not appeal this decision, nor even go after the judge. The reason? All the goals of the lawsuit were fulfilled, and Pennsylvania was fully deterred after the filing of the lawsuit. They have never sent threats nor even a letter of warning to any doctor since that time. If this marijuana lawsuit ends all prosecutions, the CSA may be ignored when it comes to marijuana, including by the banking system.


Posted by: David Behar | Jul 25, 2017 11:19:10 PM

A quick response to John: Harmelin was 26 years ago, involved a "hard" drug, and societal views on drug laws (and esp. marijuana laws) have evolved greatly since then.

Joe and David: you raise various important points relating to the particular challenges of prevailing on an 8A claim. But one has no chance of prevailing on such a claim if it is not brought.

Posted by: Doug B. | Jul 26, 2017 3:19:53 AM

Ewing v. California is closer. As is Gonzales v. Raich for that matter. I thought a liberty argument has some merit there but it was eventually rejected in the 9CA.

I'm not against tossing the argument in there, though someone actually prosecuted (as compared to two young children etc.) would help there.

Posted by: Joe | Jul 26, 2017 10:28:08 AM

I also think an 8A challenge would be difficult without a plaintiff that has actually been convicted and sentenced under the CSA. Hard to see standing for that claim w/o the harm of a conviction/sentence.

I'm also a little confused as to the cause of action here. I didn't have time to go through with a fine-tooth comb, but I Ctrl-F'd for "1983" and didn't find anything. Is this not a 1983 suit and if it isn't, what's the action? If it is a 1983, the absence of 8A as a claim could be some confusion about the difficulty of bringing such challenges due to a lot of bad case law out there about 1983 suits premised on 8A claims. Those cases illustrate a difficult standard for proving a violation and the plaintiff lawyers may have wanted to avoid that fight. I say "confusion," though, because I had thought that those difficult standards were confined to suits for damages, not injunctive relief.

Posted by: Jacob | Jul 26, 2017 11:52:23 AM

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