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What’s the Point of Rescheduling Marijuana in a Medical Marijuana State?

Posted by on Wednesday, November 1, 2017 in News, Updates.

A number of sites have reported on Kadonsky v. Lee, in which a New Jersey appellate court just ordered a state official to consider rescheduling marijuana under the state’s Controlled Dangerous Substances Act (CDSA). New Jersey’s CDSA is virtually identical to the federal Controlled Substances Act (CSA). Marijuana remains a Schedule I controlled substance under the CDSA (just as it is under the CSA), notwithstanding the fact that New Jersey passed a separate law legalizing medical marijuana back in 2010.

The Kadonsky case arose when the aforementioned state official denied a 2014 petition to reschedule marijuana under the CDSA. The official claimed that while the CDSA empowered him to reschedule drugs, it limited his discretion to deviate from federal scheduling decisions. The appeals court disagreed with the official’s interpretation of his powers under the CDSA and remanded the petition for the official to reconsider. For a concise synopsis of the opinion, see, e.g., The Philadelphia Inquirer report here and Doug Berman’s blog post here.

The case raises a big question that’s been largely overlooked in reporting: Why would anyone even bother to petition for rescheduling marijuana in a state (like New Jersey) that has already adopted a medical marijuana law? After all, the medical marijuana law already allows individuals to possess, use, cultivate, and distribute marijuana for medical purposes.

It turns out that marijuana’s scheduling status under state law continues to affect the rights of some parties, even after the state has passed a medical marijuana law. The Kadonsky opinion highlights two specific scenarios where scheduling matters:

  1. Marijuana’s scheduling status can affect the sentencing of individuals convicted of the unlawful manufacture or distribution of marijuana under state law. Under New Jersey’s drug kingpin statute, for example, anyone who plays a leadership role in a conspiracy to manufacture or distribute a “Schedule I or II” controlled substance faces a stiff mandatory prison term of at least 25 years. N.J.R.S. Section 2C:35-3 (emphasis added). Indeed, the original petitioner in Kadonsky had been sentenced under that provision and (presumably) sought to have marijuana rescheduled to shorten his prison term (the dissent discusses the point on page 4).
  2. Marijuana’s scheduling status can affect the ease with which schoolchildren can use medical marijuana at school. Although every medical marijuana state allows children to use the drug, only a small minority of these states allow them to use the drug in K-12 schools (as noted in the book on pages 141-143). New Jersey is one of those states, but as the majority in Kadonsky points out, the state appears to bar school officials from helping in the administration of a Schedule I or II drug. This means that a parent or other private caregiver must administer marijuana whenever a schoolchild needs it on school grounds. Amicus in Kadonsky argued that moving marijuana to Schedule III would enable school officials to administer the drug to qualifying students, thereby saving their parents and caregivers time and expense.

Kadonsky also highlights one of the larger points I make in the book (especially on pages 157-160): that marijuana reforms often fail to address comprehensively all of the laws that restrict marijuana-related behaviors.

H/t to Doug Greene who helpfully passed along a copy of the decision only moments after it was issued by the court.

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