In April 2016 Governor Tom Wolf signed into law Pennsylvania’s Medical Marijuana Act, or Act 16, legalizing medical cannabis for PA residents with serious medical conditions.

Now, a Pittsburgh criminal defense attorney believes the new medical law gives him standing to challenge how Pennsylvania classifies recreational marijuana, which is still illegal in Pennsylvania and is classified as a “Schedule One” controlled substance.

The Pennsylvania Code classifies Schedule One drugs as those that have “a high potential for abuse; no currently accepted medical use in the United States; and a lack of accepted safety for use under medical supervision.”

This places marijuana alongside other Schedule One drugs such as heroin, cocaine, LSD, psilocybin, and bath salts.

Patrick Nightingale, executive director of Pittsburgh NORML (National Organization for the Reform of Marijuana Laws) and one of the leading advocates behind Pittsburgh’s recent marijuana decriminalization ordinance, argues that Pennsylvania’s new medical marijuana law means that marijuana “cannot possibly meet the definition of a Schedule One substance.”

“The legislature specifically found as a matter of legislative intent that marijuana has medical potential and that it has the potential to alleviate up to 17 qualifying conditions that they put in the act,” says Nightingale, “and they created a regulated system of growing, processing and distributing medical marijuana for qualifying patients.”

He adds that to prosecute some Pennsylvanians with possession of a Schedule One controlled substance while medical marijuana patients are not prosecuted is a violation of the Equal Protection Clause of the 14th Amendment.

“I think that is a fundamental denial of equal protection by treating similarly situated individuals radically different.”

Since last summer, Nightingale has filed motions on behalf of clients charged with felony marijuana crimes in four separate criminal proceedings—three in Allegheny County, one in Westmoreland—asserting that the law is unconstitutional and as a result the charges must be dropped.

In one of the four cases in which he has filed this motion, Nightingale is defending a man facing a felony manufacturing marijuana charge for operating a small marijuana grow operation of 20 to 25 plants inside his suburban Robinson home.

Nightingale says his client in this case is a cannabis activist and enthusiastic about having the opportunity to provide the test case for this novel theory.

He acknowledges that this type of approach to change the law is “in some respects an extreme remedy” and knows of no out-of-state precedent but notes that Pennsylvania criminal defense attorney Gary Zimmerman tried the same line of reasoning before the state Superior Court and had the argument rejected.

That was in 2008, before Act 16, and the Legislature’s acknowledgement of the medicinal benefits of marijuana.

Should a judge grant Nightingale’s motion and rule the Schedule One classification unconstitutional Nightingale could one day end up arguing the issue on behalf of a client in front of the state Supreme Court. Should they agree and find the Schedule One designation unconstitutional it could force the state Legislature to reclassify marijuana.

“Anything we can do to continue to chip away [at existing laws] and protect cannabis consumers is what we’re trying to accomplish here,” he says.

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