norml23 - Page 84
Page 84
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power to make rules enforceable by a cdmina[ sanction was valid not
only because the rule-making was ancillary to an otherwise permissible
regulatory function, but also because the Congress, rather than the
agency, fixed the pena[tyo Where as here, the executive agency may also
choose the punishment by the simple expedient of rec[assifying-aor
refusing to reclassify--a substance from one Schedule to another, the
restrictions which sustained the delegation in Gdmaud do not apply. As
a result, where the agency head has not followed the statutory rules
for consideration of reclassification and has abused his discretion in
failing to adopt criteria to guide and direct recaassification of
controlled substances, and where, particularly, that refusal has
resulted in an improper failure to reclassify marijuana to Schedules
_J, IH, IV or V, the defendant is in exactly the same position as were
the defendants in United States Vo Evans. Congress has clearly
indicated its intention to criminatize the conduct of possessing, or
distributing, or manufacturing of marijuana, but the uncertainty of the
proper penalty renders application of the criminal sanction improper.
The principles of Hudson & Goodwin and of Fvans are particularly
appropriate in the instant situation because the range of penalties
possible under the statutes with "which the defendants are charged is so
great. Title 21, Section 841 provides that the person convicted of
criminally possessing or distributing a Schedute I substance or a
Schedule Jl substance which is defined as a narcotic drug, is subject
to imprisonment for 1 5 years, and a fine of $25,000.O0. For a violation
invoMng a Schedule I or Schedule _! substance which is not a
narcotic, or any Schedule [l{ substance, the maximum penalty is only 5
years or $15,000.00o For a Schedule _V controlled substance,
imprisonment may not be more than 3 years, nor may the convicted
defendant be fined more than $i0,00Oo00. Finally, for a violation
involving a Schedule substance, a penalty of no more than 1 year, or a
fine of not more than $5,000.00 may be imposed. Increased penalties are
prescribed for amounts in excess of 1,000 pounds. Section 960 provides
degrees of penalties for importation°
It is obvious, given such a broad range in possible penalties,
that once it is estabmished that the DEA Administrator has abused the
discretion to reclassify which is granted, without condition, by the
terms of 21 U.&C. 811, the principle established in Hudson &
Goodwin, and followed without question since 1811, compels the
conclusion that application of the criminal sanction is improper.
Nor, does the fact that the within indictment incff_des two conspiracy
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