Senate Bill 94 is an unconstitutional act

While there are some who believe that Senate Bill 94 – or any “medical” marijuana law, no matter how half-baked – would be a compassionate act, I do not believe that such laws, the horrific Senate bill 94 specifically, will ever serve that purported purpose. In fact, these medicalization laws always result in more persecution of ganja consumers.

I’ve covered many of the reasons elsewhere in this blog, from the destruction of protections afforded all patients for the dubious protections offered to only a very small number of patients who are rich enough to afford regular doctor examinations and the daunting regulations requiring a “locked facility accessible only to the patient” to the sellout of religious and recreational ganja consumers through increased criminalization under SB 94. So, let me talk about the legal hell of Senate Bill 94. I appologize in advance for being a little hazy on many points, but this article refers to legal research being conducted to mount a constitutional lawsuit should SB 94 move forward. We don't want to reveal all of our cards just yet.

Despite attempts to make the bill into law, the attempt is nothing but spinning wheels. In creating the state’s clone of the federal Controlled Substances Act, the legislature came up with the Uniform Controlled Substances Act (UCSA). Placed under Title 16 of the Delaware Codes laws regulating Health and Safety, The Act, Chapter 47 of Title 16, defines Delaware’s laws regarding all controlled substances, in this case the Delaware Code specifically defines the laws about ganja, and the exact process under which the law itself can be changed.

Of course, there are very few circumstances in the law that are simple or straightforward, and Controlled Substances laws are particularly convoluted. I am not a lawyer. So, I encourage anyone who can provide a better interpretation to contact me so that we can openly analyze these laws.

Under Delaware’s UCSA, one of the very first thing the law defines in Title 16, chapter 47, subchapter II, is that the Secretary (of State, Homeland Security, Safety, or someone specifically designated by the Secretary are the ones who maintain and administer (the direct application and management of the Delaware UCSA). One of the primary administrative duties defined under section 4711, is that the Secretary can only reschedule any drug covered by the Act if it has been removed from or rescheduled within the FEDERAL UCSA.

The further duties of the Secretary as defined under section 4713 require that the Secretary must place and keep any drug in the schedule of controlled substances of chapter 47 that is not recognized by the federal government as having any medical use. The Obama administration’s justice department position of restrained prosecution of controlled substance violations simply does NOT fit the requirement.

I assume that the legislature has the power to simply create another chapter under the Delaware Code (as Senate Bill 94 will try to do) that creates an exception that provides for the Secretary to remove or reschedule ganja under Chapter 47. The exception that SB 94 will create is a conflict against equal protection under the law for all of those patients not specifically listed under SB 94. SB 94 will create a constitutional problem for the patients now protected by the affirmative defense, as well as for all other ganja consumers.

In other words, by creating an exception for rescheduling in the first place, the legislature will be saying that ganja may no longer be maintained as a schedule I substance. As SB 94 fails to provide any further definition of which schedule ganja should be placed under, as soon as SB 94 passes into law it will mean that ganja is no longer covered under Delaware’s UCSA. Only the secretary (or Delaware’s Superior Court) can make a meaningful rescheduling of ganja under these circumstances.

Ganja could no longer be maintained as a schedule I drug, as that would create a legal fiction and conflict. In other words, lawsuits will be filed in Delaware’s Superior Court that the legal conflict creates a constitutional violation of the equal protection under the law requirement.

Furthermore, under further requirements of Chapter 47, a substance can only be placed in Schedule II if “The abuse of the substance may lead to severe psychic or physical dependence.” Such a standard has never been defined for ganja, and will probably lead to a protracted court battle.

The same thing applies to Chapter 47’s definition of Schedule III; “Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.” Again, no such condition has been definitively researched. In fact, all available research shows that no such effect exists for ganja. Again, we will be left in a legal limbo while years of court wrangling unfolds.

One of the effects of all of this will be that SB 94 will have completely dismantled the affirmative defense, and while all of the court battles are underway, even patients SB 94 pretends to protect will be completely vulnerable. No one will be protected. At all.

Worst yet, as the government struggles to maintain a stranglehold over ganja prohibition, conditions for real ganja prohibition law reform will get worse and worse, as it has in every state that has these poorly conceived “medical” marijuana laws. The progress it took to get the arrest rate in Delaware down from over 8,000 people a year to only a few more than 200 a year will all be undone by the passage of SB 94.
Already, the legislators are using SB 94 to try to create an exception where ganja can not be maintained in the schedule of drugs, while at the same time saying that the exception only applies to the tiny sampling of patients listed in SB 94. This creates an unconstitutional condition where a significant number of Delawareans will be denied equal protection under the law. What SB 94 proposes to do is unconstitutional.

In the final analysis, ganja does not need medicalization to protect pharmaceutical companies or to bolster prohibition for religious, medical and even industrial uses. Instead of the three steps forward in reducing all persecution of any ganja consumer as we presently have, particularly for the pretend protections held out to a tiny minority of patients, replaced with the ten steps backwards with medicalization  ganja law under SB 94, ganja law reformers need to refocus and come together with the singular goal of meaningful re-legalization to reinvigorate the rights of all ganja consumers.