Nevada Judge Orders State Board to Remove Cannabis from Schedule 1

Clark County District Judge Joe Hardy ruled that listing cannabis under Schedule 1 doesn’t align with the Nevada Constitution.

Despite the legalization of cannabis for medical and recreational purposes in Nevada, police continue to arrest people for possession as the state’s Board of Pharmacy refuses to reschedule cannabis—but that could soon change with a new ruling.

On September 14, a judge ordered the Nevada Board of Pharmacy to remove cannabis from its list of Schedule 1 substances, after ACLU Nevada filed a lawsuit last April.

“In order for a substance to be classified as a Schedule 1 controlled substance, the Board of Pharmacy has to find that it has no medical value and cannot be safely distributed,” ACLU of Nevada Director of Communications and Campaigns Wes Juhl told High Times. “The Nevada Constitution, however, provides that cannabis has accepted medical uses as a matter of law—the Constitution even lists a number of diagnoses for which marijuana can be used as a treatment.”

According to the Drug Enforcement Administration (DEA), Schedule 1 substances are classified as having “no currently accepted medical use and a high potential for abuse.” Cannabis is classified alongside drugs like heroin or LSD.

Clark County District Judge Joe Hardy ruled that listing cannabis under Schedule 1 is incongruent with the Nevada Constitution, because the Constitution explicitly states that cannabis has medical uses.

ACLU Nevada represents the Cannabis Equity and Inclusion Community (CEIC). The case, CEIC v. Nevada Board of Pharmacy, was filed in Clark County court last April, according to a press release.

“Instead of treating cannabis like alcohol and removing it from the state’s list of controlled substances, Nevada is ignoring its state Constitution and the will of the people,” ACLU Nevada stated at the time.

ACLU Nevada sued the board on behalf of Antoinette Poole, who was convicted of possession of cannabis. Busted in 2017, Poole was charged with a Class E felony.

While the judge ruled in favor of Poole, the debate isn’t over: The judge didn’t rule on whether or not the board has the authority to regulate cannabis, because he asked both sides to submit orders on the issue for review.

“A finding of unconstitutionality of the specific statute underlying a conviction  could be a basis to overturn that conviction through a case where that relief is specifically sought,” Athar Haseebullah, executive director of ACLU Nevada, told the Nevada Current. “Just the same, charges moving forward won’t be permitted to be brought under this amorphous scheduling category where cannabis is listed next to heroin.”

The plaintiffs argued that the Board can’t restrict cannabis, because it isn’t restricted under state law.

“The Board can only schedule a substance under the restrictions placed by the Legislature, if that substance, one, has a high potential for abuse, and then two, either has no medical use or cannot be safely distributed,” ACLU Nevada Legal Director Chris Peterson told the judge.

The Board of Pharmacy’s general counsel Brett Kandt argued the federal status and classification of cannabis as a Schedule 1 substance should apply in Nevada as well.

In several other states that have legalized cannabis, lawmakers have directed the Board of Pharmacy to remove cannabis from Schedule 1 as well.

Meanwhile other efforts to protect people convicted of cannabis-related charges are taking place in the state.

Last month, three nonprofit organizations—the Legal Aid Center of Southern Nevada, Nevada Legal Services, and Code for America—were granted a total of $1.2 million from cannabis tax revenue from the Clark County Commission. Code for America, which received $200,000 of this amount, will investigate how to implement automatic record sealing.

Bay Area-based Code for America in California has several months left to figure out what would be necessary to speed up this process. Some hope that it could bring attention back to Assembly Bill 192, also called the Nevada Second Chance Act, which was passed in 2019.

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