Fox Rothschild, Minority Advocacy Groups Urge U.S. Supreme Court to Study Discrimination in Federal Marijuana Law

September 14, 2020 – Press Releases

Tape recordings, documents and admissions from former Nixon administration officials reveal that discrimination against people of color and anti-war protesters were driving forces in the decision to criminalize cannabis at the same level as heroin and LSD, a team of Fox Rothschild lawyers argues in a friend-of-the-court brief before the U.S. Supreme Court on behalf of advocacy groups that focus on the intersection of cannabis and minority issues.

In the brief, the Minority Cannabis Business Association (MCBA) and Minorities for Medical Marijuana, Inc. (M4MM) urge the justices to revive a lawsuit that says the growing acceptance of the medical benefits of cannabis proves it is no longer rational to include cannabis in Schedule I of the Controlled Substances Act (CSA).

The Fox team – attorneys William Bogot, Joseph Collins and Alexandra Sobol – argue in their amici brief in Washington v. Barr that there’s another rationale for the justices to order a rewriting of the law: its discriminatory roots.

The brief says: “Nixon sought to criminalize cannabis pursuant to the CSA not out of concern for public health, but because he associated cannabis with persons of color and the anti-war left – two groups he regarded as hostile to him and his administration.”

Nixon formed the Shafer Commission “to establish the dangers of cannabis as a means to prosecute persons of color and anti-war protesters,” the brief says. But the President went on to ignore the commission’s recommendation that cannabis be decriminalized.

More evidence is captured on the infamous Nixon tapes, the brief says, which include a segment in which Chief of Staff H.R. Haldeman, reveals the true purpose for the criminalization of cannabis, noting that “[President Nixon] emphasized that you have to face the fact that the whole problem is really the Blacks.”

M4MM Founder and CEO Roz McCarthy said: “M4MM is committed to ensuring safe access to medical marijuana for all communities. We’ve added our voice to the chorus of plaintiffs in this case to support patients and families who’ve found hope and healing for debilitating and life-threatening illnesses in medical marijuana treatments, but too often must pay the price for violating an unjust and prejudiced federal law. Our brief shows that the current law is irrational, unfair and motivated by a thinly veiled racist agenda.”

Jessica F. Gonzalez, who serves as M4MM’s outside General Counsel, said: “As our brief makes clear, the decision to classify cannabis under Schedule I was more than just wrong. It was precipitated by invidious discriminatory motives. We are confident that if the Supreme Court reviews this case and orders the proper scrutiny, the law cannot survive.”

MCBA President Jason Ortiz noted that the lead plaintiff in the suit, Marvin Washington, is a cannabis entrepreneur who cannot take advantage of federal Minority Business Enterprise programs due to the Schedule I status of marijuana. “We fully support Mr. Washington’s Fifth Amendment due process claim, but our brief – and the evidence of Nixon-era racist motives we have highlighted – bolsters his case with a strong argument under the Equal Protection Clause.”

Khurshid Khoja, Co-Chair of MCBA’s Policy Committee and an MCBA Board member, said: “To those of us who have been fighting cannabis prohibition since before there was a regulated industry, the pretextual nature of the War on Drugs has always been readily apparent from factual accounts about the Nixon administration’s true motives.  The work of our pro bono amicus team at Fox Rothschild lays this pretext bare, may for the first time cause the Supreme Court to take judicial notice of this, and hopefully form the basis of overturning racist cannabis laws that can’t meet the most basic guarantees of constitutional Due Process.”

Erik Range, Chair of the M4MM Board, said: “I believe this country is engaging in a long-overdue racial reckoning that has the potential to open the eyes of our judges to the indelible stain of racism on the framework of our laws, particularly in the areas of health care and drug policy. Only by striking down these laws can we begin to craft a system grounded in equity and fairness.”

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Minority Cannabis Business Association is the first national nonprofit business league created to advance social equity and diversity in the cannabis industry, and serve the specific needs of minority cannabis entrepreneurs, workers, patients, and other consumers across the United States. Its mission is to create equitable access to the opportunities presented by the cannabis industry, and economic empowerment for the communities most affected by the “War on Drugs”. 

Minorities for Medical Marijuana, Inc. is a 501(c)(3) nonprofit organization focused on advocacy and education in support of minorities who have a vested interest in cannabis public policy, business, health care access and social impact. MFMM envisions a forward-thinking and progressive approach to social justice and equality in cannabis.