N.J. attorneys ask the court to 'reclassify' pot as a less dangerous drug

Now that New Jersey has had a medical marijuana program in place for nearly seven years, shouldn't the state change the decades-old classification of marijuana as one of the most dangerous and reviled drugs, one without any medicinal benefit?

That question was posed to a state appeals panel Tuesday on behalf of two plaintiffs - an inmate serving a life sentence for drug trafficking and a Maple Shade teenager who uses medical marijuana to control epileptic seizures.

After listening to the arguments, the three-judge panel in Trenton said it would release an opinion later.

Newark lawyers Joseph Linares and Marc Haefner of the Walsh Firm contend it is inconsistent for the state to have a medical marijuana program and a classification of marijuana as a Schedule I drug, a category that includes heroin. Cocaine and other addictive drugs fall into Schedule II and III and are considered less harmful than marijuana, the lawyers argued.

State Deputy Attorney General Jodi Krugman opposed changing the classification, noting that the federal government classified marijuana as a Schedule I drug in 1970 and has repeatedly turned down petitions to assign it a new designation, most recently last summer. "Other states with medical marijuana programs have not rescheduled marijuana," she said.

Linares, however, said state law requires the director of consumer affairs to review the classifications of controlled drugs and make changes "when appropriate" and without deference to the federal classification.

He also cited a 1986 state Supreme Court case, New Jersey v. Tate, which held that the "state Legislature . . . demonstrated foresight by leaving room for the possibility that scientific developments and advances in knowledge could ultimately render marijuana's Schedule I classification inappropriate." The law gave the state the authority to reschedule marijuana, the court said.

The state allows marijuana to be used to treat or alleviate the symptoms of a dozen medical conditions, including epilepsy, multiple sclerosis, cancer, and glaucoma. More than half of the states, including Pennsylvania, have similar programs. More than 7,000 patients are registered with the New Jersey program.

Roger Barbour, who died this year, filed an amicus brief arguing that the classification should be changed because it is outdated and causes clashes with the medical marijuana program. His brief noted that his daughter, Jenna, 17, of Maple Shade, legally uses medical marijuana but has been barred from receiving additional doses while attending the Larc School in Bellmawr because state law bars marijuana from school property.

"I'm frustrated," Lora Barbour, the girl's mother, said after the hearing. "I would rather have a school nurse give her the medication than remove her from the school grounds to give it to her and then return her to school, causing emotional problems," she said. Making the Compassionate Use Medicinal Marijuana Act work "can be an uphill battle," she said.

But Krugman said the law did not suggest that the classification of marijuana should be changed. She said the law was "very narrow" and designed "to enable those who are very seriously ill to use marijuana without being prosecuted."

Linares and Haefner took the case pro bono on behalf of Steven Kadonsky, who was arrested in 1992 and is serving a life sentence for possessing and distributing marijuana and being "a kingpin." Kadonsky had petitioned the consumer affairs director three years ago to ask him to reschedule marijuana, citing scientific studies that he said show the drug is not as addictive or harmful as once believed.

The classification of the drug can affect the severity of a criminal sentence, and if marijuana was removed from a Schedule I designation, he could potentially file an appeal for a lesser sentence.

jhefler@phillynews.com

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