Minnesota needs to adopt a new statute affirming your right to present the defense of medical necessity to a marijuana criminal-charge. Why?
Marijuana, or cannabis, has been used by humans as medicine for thousands of years successfully for relief and treatment of disease. Modern medical research, as well as clinical practice, has proven its efficacy in relieving symptoms as well as curing diseases — from the bothersome all the way to cancer.
Marijuana had never been a crime. But beginning in the 1930s in the United States, as the alcohol Prohibition regime was disintegrating, a new experiment in Prohibition was being developed to replace it — the marijuana Prohibition. Marijuana was widely used as medicine at the time, and its medicinal use persisted for decades but was eventually driven underground after increased criminalization policies in the United States, and in Minnesota. Its use, including medical use, continued but was made criminal.
Necessity has been a recognized legal defense to what otherwise would be a crime, since ancient times. In The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil some of this history is summarized:
The English courts stated the principle of necessity in 1551 in Reninger v. Fagossa (1 Plowd. 1, 75 Eng. Rep. 1): “A man may break the words of the law, and yet not break the law itself … where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.” The case cites the New Testament example of eating sacred bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Older English cases contain many examples which recognize the general principle of necessity. It was a defense to breaking a law that the person committed the act to save a life or put out a fire. Jurors could depart without the permission of the judge in case of emergency. Prisoners might escape from a burning jail without committing a crime. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.
The necessity defense is sometimes called the lesser-of-two-evils defense. It is often a justification type defense. If the defense is accepted by the jury, it does not mean the defendant did not intentionally do the prohibited act, but rather that he or she reasonably did so to avoid a greater evil, out of necessity. It is a common law defense — old and widely accepted. Like many other common law defenses, it has often been codified in statutes over the past several decades, in many jurisdictions.
The term “medical necessity defense” is a special application of the more general, necessity defense. If you are sick with glaucoma or cancer and marijuana provides you with relief or cure, even though marijuana may be a crime to possess or grow in some states, you may decide that preserving your health (or your child’s life) is a greater necessity than complying with the criminal Prohibition. The majority of people in the United States today, according to poll after poll, agree that medical use of marijuana should not be a crime. As a result it is likely that many if not most jurors may share that majority view, that medical marijuana is not a real crime. But in Minnesota jurors are not currently empowered to decide cases with all of the evidence.
Since you are constitutionally guaranteed the right to a jury trial, and the right to present a complete defense — to present the jury with your true defense, for the jury to do with it as it will — how could it be that the Minnesota appellate courts have so far held that you have no right to present a medical necessity defense in a marijuana case?
To find out, you can read the Minnesota Court of Appeals case from 1991, State v. Hanson. Though every court case is fact specific to a great extent, the court’s main rationales in the State v. Hanson case are captured in this excerpt:
“The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has “no currently accepted medical use in the United States.” Minn.Stat. § 152.02, subd. 7(1) (1990). The legislature has enacted a single exception, in the THC Therapeutic Research Act (TRA), exempting from criminal sanctions possession or use of marijuana for cancer patients undergoing chemotherapy who are receiving the drug under the strict controls of an approved medical research program. Minn. Stat. § 152.21, subds. 1, 3, 6 (1990). These statutory provisions demonstrate that the legislature has specifically addressed and determined the possible medical uses of marijuana.”
The first point, that marijuana has been classified by Minnesota as “a Schedule I substance” meaning they claim that it has “no currently accepted medical use in the United States,” if it has ever been true, is certainly not true today. Though marijuana is still arbitrarily classified by Minnesota as “Schedule I,” the majority of the United States population now lives in states with legal medical marijuana programs, and marijuana is now currently accepted as having medical use — including by the United States Surgeon General.
The second argument advanced in Hanson, was that since the Minnesota legislature had enacted THC Therapeutic Research Act (which created a “research” program so restrictive that nothing ever came of it); that therefore the legislature must have intended to preclude any other consideration of any other exception or defense for medical use of marijuana (though it never said so). Not particularly persuasive here, the argument is of the classic rhetorical form — expressio unius est exclusio alterius, a Latin phase meaning “the expression of one thing is the exclusion of the other.”
The Hanson case was from 1991. Much has changed since then, politically, legally, and in the medical research community, has it not? So would a modern Minnesota appellate court right this 1991 wrong? In 2014, it didn’t. In a 2014 decision the Minnesota Supreme Court, in State v. Thiel left intact the Schedule I classification despite a constitutional challenge by a defendant convicted of marijuana possession who had not been allowed to let the jury know the truth about his medical condition, his medical recommendation for marijuana as medicine, or his California medical marijuana card.
It seems reasonable to conclude then, that the Minnesota courts are unlikely to remedy this injustice and restore our right to a fair jury trial, and our right to present a complete defense in Minnesota — at least not in the near term.
That is why we need the Minnesota legislature to restore some measure of Liberty and Justice in Minnesota, by passing a Bill for a new statute guaranteeing your right to let the jury hear the truth, that medical marijuana is a lesser evil (if it is an evil at all) than violating the criminal law prohibiting marijuana.
The Bill currently in the Minnesota legislature would restore the necessity defense to medical marijuana patients charged with a marijuana crime in Minnesota. It would guarantee that the accused could use this as an affirmative defense — meaning the defendant would have the burden of showing prima facie evidence of medical necessity, and if successful, the ultimate burden of proving criminal guilt would then shift to the prosecution. This would help restore the right to a jury trial to an extent as well. The jurors have the right to hear the truth before condemning a person.
Contact your Minnesota House of Representatives member, your Minnesota State Senator, and the Governor to urge support of the medical necessity Bill, HF 542.
Thomas Gallagher is a Minnesota Marijuana Lawyer with a criminal defense practice based in Minneapolis.