According to a recent Associated Press article No quick decision on medical marijuana for pain Minnesota Governor Mark Dayton’s Commissioner of Health has decided to postpone adding Intractable Pain to Minnesota’s new, legal medical marijuana program. Apparently, Dayton administration officials are setting expectations at the delay being potentially for years. The reason they cite is their fear that they may not be ready for an increased volume of demand should intractable pain be included in the list of medical problems that qualify for medical marijuana in the Minnesota program.
Marijuana has proven an effective treatment for intractable pain — and better than more commonly used narcotic medications. Marijuana provides pain relief and relief from pain-related disability. And it does not kill people or have the other side effects that toxic opioid pain medications have.
With 23 states now having legal medical marijuana — Minnesota being a laggard in this respect — one might wonder: how have other states managed to come up with an adequate, legal supply of marijuana to meet the legitimate demand of the sick and suffering for legal, medical marijuana? One obvious answer could be that only one other of those 23 states has failed to allow the natural, plant-form of marijuana for lawful, medical use. Minnesota could remove that restriction from its law, and so remove steps that would save time, reduce cost, and help more suffering people sooner.
Other possibilities come to mind to more quickly ramp up production of legal marijuana in Minnesota; including authorizing more than two producers, and authorizing legal home grow for qualified medical marijuana patients. These would also reduce the expected high cost of medicine in Minnesota’s medical marijuana program.
Minnesota’s governor was not an enthusiastic supporter of the medical marijuana law that eventually passed last year, but did sign on to a compromise law that is one of the two weakest in the United States today. This news of delay in including intractable pain, could be interpreted by some as more evidence of tepid support for medical marijuana from the Minnesota Governor.
What can be done? The Minnesota legislature could pass additional legislation to strengthen and expand Minnesota’s medical marijuana program. It could also pass the medical necessity defense Bill, to restore fairness for patients facing criminal charges for marijuana. The bill, HF 542 in the Minnesota House and SF 404 in the Minnesota Senate, would give medical marijuana patients the “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or marijuana products.
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.
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. Thielleft 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.
Minnesota 1970s partial decriminalization of marijuana
In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it? Minnesota has only partiallydecriminalized a small amount of marijuana, in plant-form only. But the law left a loophole for “the resinous form of marijuana,” which was still a felony. The resinous form comes in many forms under many names. These include THC oil, dabs, marijuana wax, and concentrates.
Prehistoric marijuana forms
Hashish is marijuana. It is a compressed plant-form of marijuana.
People around the world have safely used it for thousands of years for social, medicinal and religious purposes. Cannabis-plant trichomes, flower and leaf fragments are hashish.
Hashish: compressed plant material
Mechanical methods remove the trichomesfrom the plant, screening by hand or with motorized tumblers. Just heat and compress the resulting powder into hashish.
Does hashish fit the definition of “the resinous form” of marijuana in Minnesota Statutes? Probably not, since it is still plant-form, not the chemically processed “resinous form.”
Hashish is less common these days in Minnesota. It generally comes from parts of the world where traditional. Most marijuana in Minnesota today is from the United States.
The resinous form – extracted resin
Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin. Then, filter the result. And boil offthe solvent to leave behind the resins – called honey oil, THC oil, marijuana wax, dabs, shatter. All of these are the “resinous form.”
It’s also a common an ingredient in medical marijuana edibles.
Minnesota Statutes contain technical definitions that don’t always make common sense. Sometimes statutory definitions are inconsistent with a dictionary definition or common understanding of a word. In this case, Minnesota Statutes Section 152.01, subdivision 16, defines a “small amount” of marijuana as 42.5 grams or less, but says “this provision [defining a “small amount”] shall not apply to the resinous form of marijuana.”
In Minnesota, prosecutors can charge possession of 1/4 gram or more of “the resinous form of marijuana” as a felony. That includes a “small amount” or less than 42.5 grams – about 1.5 ounces. Victims of the law include medical users from other states, found with a small amount of resinous form in Minnesota.
In contrast, the law decriminalizes 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana in Minnesota. It’s a petty misdemeanor; not a crime; cannot legally be the basis of an arrest; with the only penalty being a fine. See, Minnesota Statutes Section 152.027, subdivision 4.
Why exclusion of “resinous form of marijuana” makes no sense:
The definition of “Marijuana” in Minnesota Statutes Section § 152.01, subdivision 9, defines it as:
“all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin…”
Minnesota Legislative Public Policy favors the resinous form:
In 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program. They specifically found that the resinous form of marijuana was safer and preferable to the plant-form of marijuana. Minnesota law now contains a preference for the resinous form of marijuana, over the plant-form. This is the legislature’s declaration of public policy.
Minnesota medical marijuana program participants can lawfully possess and use the resinous form of marijuana obtained through the program. But they nowbecome criminal if they use or possess the plant-form of marijuana.
Marijuana is marijuana. But is a small amount a small amount?
Minnesota law makes clear that THC oil, dabs, marijuana wax, and concentrates – “the resinous form of marijuana” – is marijuana.
If someone possesses “a small amount” why should it matter whether it’s the plant-form or the resinous-form? A small amount is a small amount. One should not be a felony crime while the other is “not a crime.”
Close the loophole in the law?
Has the time come to update Minnesota’s 1970s era decriminalization law? To treat small amounts of all forms of marijuana equally?
More importantly, should Minnesota make felons out of people who possess a small amount of the “resinous form of marijuana”? Most people don’t comprehend a meaningful distinction between marijuana in plant form versus resinous form. People typically think they’re complying with the state’s decrim law – only to discover their error after it is too late.
The law makes felons on a technicality.
The law should be consistent. Simplicity is a virtue in the law. And it should treat people fairly. It should not create felons based upon arbitrary distinctions and technical legal definitions that don’t make sense.
The Minnesota legislature can fix this. How? Pass a Bill amending Minnesota Statutes Section § 152.01, subdivision 16, defining a “small amount” of marijuana. Just delete the language “this provision shall not apply to the resinous form of marijuana.”
That simple solution should solve this problem, and bring a little more common sense and equity into the law.
Last week the Minnesota House and the Minnesota Senate each passed different versions of a medical marijuana law to provide relief to some of the sick and dying. (Current SF 2470 is the House Delete-All Bill; while current SF 1641 is the Senate Bill.) The previous post points out some of the differences in the two Bills, which will go to a Senate-House Conference Committee. Once the Conference Committee negotiates a single Bill from the two versions, the Bill will go back to the House and Senate for an up or down vote; and if passed, it will then go to the Governor for consideration for approval into law.
One key difference between the two versions is that the the House Bill follows a medical, clinical study format with distribution through pharmacists. This fundamental difference will trigger presumably unintended consequences that will likely may the proposed law unworkable under other, existing Minnesota laws relating to pharmacists.
These other laws relating to pharmacies are not an issue for the Senate Bill because it follows a dispensary model, as other the other twenty-one medical marijuana states do; and does not include pharmacists in distribution of medicine.
House bill affirmatively requires a pharmacist to dispense cannabis. Senate bill does not.
Here are some pharmacist-related Minnesota laws and rules that will create trouble for the House bill:
Minnesota Statutes §151.15 COMPOUNDING DRUGS UNLAWFUL UNDER CERTAIN CONDITIONS. “It shall be unlawful for any person to compound, dispense, vend, or sell drugs, medicines, chemicals, or poisons in any place other than a pharmacy, except as provided in this chapter.”
Minnesota Statutes §151.06 POWERS AND DUTIES. Subdivision 1. “Generally; rules. a) Powers and duties. The Board of Pharmacy shall have the power and it shall be its duty:
(7) to deny, suspend, revoke, or refuse to renew any registration or license required under this chapter, to any applicant or registrant or licensee upon any of the following grounds: …
(ii) in the case of a pharmacist, conviction in any court of a felony; …
(vii) employing, assisting, or enabling in any manner an unlicensed person to practice pharmacy; …
(ix) violation of any of the provisions of this chapter or any of the rules of the State Board of Pharmacy;”
Minnesota Administrative Rules § 6800.2250 UNPROFESSIONAL CONDUCT. “Subpart 1. Prohibited conduct. Unprofessional conduct shall include, but is not limited to, the following acts of a pharmacist or pharmacy:
H. The violation of any law, rule, regulation, or ordinance of the state or any of its political subdivisions, including the Board of Pharmacy, or the United States government, or any agency thereof relating to the practice of pharmacy.
Subp. 3. Accessories to illegal drug traffic. The selling, giving away, or otherwise disposing of accessories (i.e., glassine papers, empty capsules, quinine, lactose, or similar products), chemicals, or drugs found in illegal drug traffic is unprofessional conduct by a pharmacist when the pharmacist knows or should have known of their intended use in illegal activities.
It is unclear how the House version (SF 2470 the House Delete-All Bill) can be fixed to avoid these problems which would appear to make it completely unworkable and illusory. It is based on distribution through pharmacists — a new, first-time experiment in the United States. No other medical marijuana state has ever tried this approach before. On the other hand the Senate version (SF 1641 the Senate Bill) relies upon the tried and true method of dispensaries, which has been used for years in the other states with legal medical marijuana programs. If Minnesota truly wants to provide needed compassionate relief to the sick, ill and dying in Minnesota, let’s hope the legislature’s Conference Committee agrees to send the Senate version for final approval to the House, Senate and Governor.
This week, the Minnesota Senate passed a medical marijuana Bill that is better than nothing. Friday May 9, 2014, the Minnesota House passed a Bill that is worse than nothing. The two Bills will now go to a Senate-House Conference Committee to negotiate one Bill that will then face an up or down vote in the House and Senate, and if passed in both, then go to the Governor.
We need to advocate, now, for the Senate version in MN. We need to urge our respective MN Senators and MN House members, as well the MN Governor, to support the current Senate version, not the current House version
A side-by-side comparison of the two bills for your reference, created by Minnesotans for Compassionate Care is reproduced below. Please contact your legislators (and the Governor) and make sure they know what you need. Share!
SF 2470 and SF 1641
A Side-By-Side Comparison of Medical Cannabis Bills (as of May 10, 2014):
SF 2470 The House Delete-All Bill
SF 1641 The Senate Bill
Net Cost to Minnesota
$4.9 million during the first three fiscal years; in the third year (FY 2017), the net cost is projected at $962,000
Cost neutral; during the first two years, the net cost is projected at $4.5 million, mostly from the Special Revenue fund; beginning in FY17, net savings are projected, with the savings in FY17 being $390,000; Note: even states with lower patients registry fees — such as Michigan — have seen multi-millions annual surpluses, as has Arizona
Sources of Cannabis
A single state-approved manufacturer (3.27-3.29)
55 regulated and licensed alternative treatment centers (ATCs) (7.22-7.31)
A single manufacturer with 2 satellite locations; patients must pick up cannabis from an on-site pharmacist; pharmacists must deliver it to the patients’ homes if they are disabled, and may charge for delivery (9.21-9.23; 10.14-10.20, 13.12)
55 regulated ATCs with one in each county with over 20,000 residents, none in less populous counties, two to three in the most populous two counties, and two in St. Louis County; each patient must designate a single ATC (7.22-7.31)
Permissible Modes of Administration of Cannabis
Only liquids, pills, and oils are initially allowed, patients could only vaporize liquids and oils (though extracts are more intoxicating and make dosage control difficult) (1.19-2.4)
Smoking is prohibited; other means of administration are allowed (See: 4.16)
One laboratory, selected by the manufacturer, is allowed (4.18-4.22)
The commissioner will regulate and license safety compliance facilities to perform lab testing and training (3.21-3.27, 6.20-7.21)
Cancer, glaucoma HIV/AIDS, Tourette’s, ALS, seizures, severe and persistent muscle spasms, Crohn’s disease, and other conditions added by the commissioner (2.30-3.4)
Cancer, glaucoma, HIV/AIDS, Tourette’s; ALS, seizures, severe and persistent muscle spasms, Crohn’s disease; severe, intractable pain; severe nausea; cachexia or wasting; PTSD, hepatitis C, and conditions added by the commissioner (2.12-2.23)
Only patients who are so disabled that their practitioner specifies they cannot administer their own medicine may have a caregiver; caregivers cannot pick up their medicine and can only help with the administration of cannabis at the patient’s home; caregivers must be at least 21 and can assist a single patient (2.20-2.24, 10.19-10.20)
Each patients may designate a caregiver to pick up their medicine and help administer cannabis; caregivers must be at least 21 and can’t have certain convictions; caregivers can assist no more than five patients (2.24-2.26)
Cost to Patients for Registry Identification Card and Cannabis
Patients would pay $200 per year (or $50 in some cases) for registration and the single manufacturer will determine the cost of cannabis (13.3-13.16)
Patients would pay $140 per year (or $26 in some cases) for a state ID card; patients could compare the costs of medical cannabis and decide which ATC to designate (8.15-8.17)
Patient Registry Identification
Each patient and caregiver must have a registry identification number; no photo is mentioned (See: 2.17-2.18)
Each patient and caregiver must have a registry ID card with a photograph of the cardholder (9.31); the department must set up a phone or web-based verification system for law enforcement and ATC staff (13.6-13.14)
Additional Requirement for Minors
None specified, except that the manufacturer will dispense the cannabis to a minor patient’s parent or legal guardian (9.24-9.32)
Minors must have two certifications and their parent/guardian must consent and control the acquisition of cannabis, the dosage, and the frequency of is use (9.5-9.18)
Selection of Provider(s)
Requirements include that the manufacturer must have experience growing medical cannabis (meaning it must be from out-of-state), have long-term financial stability, and must have “demonstrated an ability to meet the medical cannabis production needs” of the program (4.1-4.17)
ATCs are selected using a merit-based numerically scored selection process considering the location, character and experience of applicants, the business plan, the security plan, and the ability to maintain an adequate supply; ATCs must comply with local zoning and be 1,000 feet from schools (5.5-5.13; 7.1, 7.10-7.13)
Includes limited anti-discrimination protections in housing, employment, child custody, and medical care (such as organ transplants) (12.12-13.2)
Includes limited anti-discrimination protections in housing, employment, child custody, and medical care (such as organ transplants) (17.20-18.9)
Patients could not drive while impaired or undertake anything while impaired that would be negligence or malpractice, they could not possess cannabis at schools or correctional facilities; they could not vaporize cannabis in a public place or where minors would inhale it; patients needing caregivers could only use cannabis at their own home (3.5-3.19, 11.28-11.31)
Patients could not drive while impaired or undertake anything while impaired that would be negligence or malpractice, they could not possess cannabis at schools or correctional facilities; they could not vaporize cannabis in a public place or where minors would inhale it (4.8-4.25)
Security Provisions for Manufacturer/ATCs
The manufacturer’s application must show it can provide appropriate security measures (4.12)
The commissioner will set security requirements, including an alarm system, facility access controls, perimeter intrusion detection systems, personnel identification system, and a 24-hour surveillance system that is accessible to law enforcement and the commissioner (5.16-5.26)
Medical Practitioners’ Role
Practitioners certify that the patient has a qualifying condition; throughout the treatment, practitioners must submit the patient’s health records to the commissioner; it is not clear how often and how much data must be sent (8.12-8.14, 8.30-8.35)
After a full examination of the patient, in the course of a bona fide patient-practitioner relationship, practitioners would be able to sign a written certification that a patient has a qualifying condition and that the patient is likely to receive therapeutic or palliative benefit from cannabis, allowing the patient to enroll in the program (3.34-4.6)
Available Medical Cannabis Strains
The commissioner must decide the chemical composition of the cannabis (1.21, 4.23-4.27)
The ATCs can decide what strains to produce based on patients need and may innovate
Medical Cannabis Business Fees
The single manufacturer will pay a $20,000 annual fee; $19,000 will be refunded to unsuccessful applicants; labs appear to pay no fee (3.31-3.32)
Each of the 55 ATCs will pay a $15,000 annual fee; each lab will pay $5,000 per year; $14,000 and $4,000 are refunded to unsuccessful applicants (6.27-6.30)
None appear to be specified
Must be compliance with the U.S. Poison Prevention Packing Act regarding child resistant packaging and exemptions for packaging for elderly patients (5.27-5.30)
Cannabis must be labeled with the patient’s name, registry number, and date of birth; the dosage; and the chemical composition (10.3-10.11)
The commissioner will develop labeling rules, including the ratio of THC and CBD in products for oral consumption (5.32-5.34)
Signage and Advertising
There is no mention of restrictions of advertising, marketing, or signage
The commissioner will develop rules to restrict signage, marketing, and advertising (6.3-6.4)
There is no mention of the ability to suspend or revoke a manufacturer’s registration or of additional penalties for violating department rules or the medical cannabis law
The department will accept complaints and may revoke the registration of ATCs, patients, and caregivers that violate the law (18.16-19.7); in addition to existing penalties, a new felony is created for any diversion of medical cannabis; a petty misdemeanor is created for a patient’s failure to provide certain notifications; new penalties are also created for letting someone else fraudulently use one’s ID card, for fraudulent records or statements, and for violations by ATCs (19.9-20.23)
Advisory Council or Task Force
A task force would be established with four legislators, four patients, four health care practitioners, four members of law enforcement, four substance abuse treatment providers, and the commissioners of public safety, health, and human services; the task force would issue an impact assessment of eight things, including program design and implementation, patients’ experiences, access to and quality of cannabis, impact on law enforcement, and the impact on incidence of substance abuse; the task force would issue a biennial report (15.6-16.21)
An advisory council of four health care practitioners; one patient; public safety, human services, and health designees; and one chemist or scientist will make recommendations on implementation and on adding qualifying conditions, and will assess whether ATCs are meeting patients’ needs (21.12-22.9); in addition, the health commissioner, consulting with the advisory council, will make a biennial assessment on the same factors as are in SF 2470’s task force, along with information on others states’ experience, medical literature, and a method to track practitioners who certify patients and their conditions (22.11-23.2)
Permissible Amount of Cannabis
The commissioner must set ranges of doses and the manufacturer must determine the patient’s dosage; patents may have no more than a 30-day supply (9.34-10.2, 10.12-10.13)
2.5 ounces at a time (1.17)
Timeline for Access
The single manufacturer must begin distributing cannabis by July 1, 2015 (4.3), but the commissioner is allowed up to three six-month delays in all deadlines, meaning cannabis may not be available until 2017 (5.1-5.3)
The commission must begin issuing registry identification cards to patients and registrations to ATCs by July 1, 2015 (20.28-20.29)
Is religious use of marijuana a defense to a marijuana criminal charge? A recent Minnesota Court of Appeals case indicates the answer may be “yes.” In an unpublished opinion, In the matter of the Welfare of J.J.M.A., A13-0295, filed September 23, 2013, the Minnesota Court of Appeals reversed a juvenile’s delinquency adjudication based on his sincerely held religious belief as a Rastafarian, on a petty misdemeanor marijuana paraphernalia charge.
The fifteen year old boy was a practicing Rastafarian – a religion that has incorporated religious use of marijuana for nearly 100 years. The lower court found him guilty of the paraphernalia charge, despite also finding that “Rastafari is a true religion and that J.J.M.A. has a sincerely held belief in the tenets of that religion,” because he “failed to satisfy his burden of showing that the Rastafari religion requires him to carry his pipe with him at all times.” The Minnesota Court of Appeals reversed that adjudication of guilt, based on the Minnesota Constitution’s freedom-of-conscience clause, article 1, section 16:
“The right of every man to worship God according to the dictates of his own conscience shall never be infringed . . . nor shall any control of or interference with the rights of conscience be permitted . . . ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.”
Minnesota’s Constitution provides more protection for religious freedom than the United States Constitution does. “’This language is of a distinctively stronger character than the federal counterpart’ because it ‘precludes even an infringement on or an interference with religious freedom.’” State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990) (Hershberger II).
The court analyzed the four prongs of the compelling state interest balancing test:
whether the individual holds a sincerely held belief;
whether the regulation burdens the exercise of religious beliefs;
whether the state’s interest is overriding or compelling; and,
whether the regulation uses the least restrictive means to accomplish the state’s interest.
The court ruled that the evidence at trial satisfied the defense burden to establish a firmly held belief worthy of protection under section 16. It contrasted this case with past cases where the defendants had failed to meet the burden to establish a sincerely held religious belief, due to being unable to connect his conduct to a religious practice or principle.
The court stated, ”once an individual has demonstrated a sincerely held religious belief intended to be protected by section 16, the burden shifts to the state ‘to demonstrate that public safety cannot be achieved by proposed alternative means,’” and that the state failed to meet this burden in this case. Though the case did not expressly address the applicability of the defense to a marijuana possession case, it contains language that may be helpful in doing so.
Given the fact that marijuana is safer than alcohol, presumably the state will never be able to meet its burden of proving that restricting religious freedom with a statute that criminalizes marijuana possession somehow improves public safety.
Remember the recent Minnesota Supreme Court case that took a literal interpretation of a statute – to an absurd result – ruling that water could enhance the severity of a drug crime? It was a bare majority decision, 4-3, with a concurring opinion and strongly worded dissents. After the majority, concurring and dissenting opinions are all tallied, five out of seven wrote that the legislature should amend the statute to cure the injustice. The case ruled that Bong Water (water used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree (30 years of prison maximum), though it contained only trace amounts of illegal drugs.
The case gained worldwide infamy. If trace amounts of criminalized drugs in bong water could be a crime based upon the weight of the water “mixture,” then would not trace amounts of illegal drugs in our drinking water also be a crime to possess? And if that is the case, which of course it must be, then is not every citizen of Minnesota a drug criminal – by virtue of possessing river sourced tap water? (Those with well water presumably can rest easy, without fear of a drug-police home invasion.)
A Bill in now being considered by the Minnesota Legislature, for the Safe Drug Disposal Act is an attempt to ameliorate the problem of pharmaceutical drugs in our drinking water supply, and rivers. It is a crime in Minnesota to possess prescription drugs without a prescription for those drugs.
Will Minnesota lawmakers heed the call of the Minnesota Supreme Court and public outrage and undo the “Minnesota Bong Water Case?”
A Bill has been introduced in the Minnesota House, H.F. No. 2757, to amend Minnesota Statutes section 152.01, subdivision 9a, to read:
Subd. 9a. Mixture. “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of where purity is relevant only when weighing the residue of a controlled substance.
If adopted into law, this would bring back proportionality of the severity of a drug crime to quantity.
Advocates of drug legalization (regulation and taxation) may have mixed feelings about this reform. Yes – it would cure an outlandish, gross injustice to people facing exaggerated convictions and prison terms based upon possession of water or other non-drug media. On the other hand, the Prohibitionists really shot themselves in the foot on this one. The Minnesota Bong Water case has helped undermine what public confidence there was in criminal drug laws and their enforcement. As stated in the dissent in the Peck case:
“The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.”
To the extent the public confidence in our criminal justice system is undermined by Peck, the Minnesota Bong Water Case, and its literal interpretation of the statutory definition of a drug; this may hasten the day when common sense will finally prevail, with the Repeal of all drug Prohibition laws in Minnesota.