Category Archives: Minnesota Criminal Law

The Romeo and Juliet Syndrome: Minnesota Sex Crimes Based On Age

In Shakespeare’s Romeo and Juliet, Lady Capulet says her daughter Juliet is “not yet fourteen,” being about two weeks from her fourteenth birthday.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen, older, but still of tender chin (without beard).  Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic.  But were they criminals?  Not then, as Juliet’s mother makes clear.

Would they be criminally prosecuted for age-based sex crimes in Minnesota today?  Young people like them can be and often are prosecuted in juvenile and adult criminal courts in Minnesota.  Should they be?  Should we instead change the laws in Minnesota to decriminalize young love?  Should foolish love be a crime?

 “Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)

Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age.  Common law rape required an element of force, coercion or lack of consent.  The more modern invention, often-called “statutory rape” since it does not require an element of force or lack of consent, involves quite consensual acts.  But it rests upon the legislative fiat that a person younger than 16, for example, is so feeble-minded as to be incompetent to consent to sexual acts.  (See, Minnesota Statutes §609.342, subdivision 1 (a) “Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.” The “complainant” is usually opposed to the prosecution.)  This premise appears deceptive – the more so considered next to the fact that in Minnesota the minimum age for competence to be criminally prosecuted in a delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).

Why would the same body of law, the same jurisdiction, consider a ten year old competent to form intent in her mind to do a criminal act, but consider a thirteen year old incompetent to intend to have sex?  A tangled web, indeed.

O Romeo, Romeo, wherefore art thou Romeo?

“O Romeo, Romeo, wherefore art thou Romeo?”

Do we really want to permanently label our Romeos and Juliets sex criminals, for the crime of being young lovers?  Do we want them to have to Register as a Predatory Offender for a minimum of ten years up to life?  Though many of Minnesota’s Criminal Sexual Conduct statutes contain exceptions for lovers within a range of 24 to 48 months depending upon the crime, for those outside these exceptions “mistake of age,” they say, is not a defense.

 “The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”   — George Orwell (1984)

These days, one could categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch.  When sexual penetration is criminal, it is a more serious crime than touch, which in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

Before our modern day Romeo and Juliet became lovers, their flirting included sexting.

Young lovers have been around long before Minnesota criminalized them.  But some non-touch sex crimes are an artifact of recent technology, like smart phones.  Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.  Then they share them with each other over cell phone towers and Wi-Fi connections to the internet.  The images may be stored on their phones or in the data cloud.  Sexting is a new word meant to describe sex texting – sending images via text messaging applications.

Minnesota laws have not kept pace with the times.  Should every foolish act be made a crime?  Our laws criminalizing child pornography are now being used to prosecute young people for taking naked and arguably sexual images of themselves, then sharing them with each other.  A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession of Child Pornography, Dissemination of Child Pornography, or both, under Minnesota Statutes §617.247.  Such prosecutions appear to violate the young person’s fundamental right to freedom of speech and expression under the First Amendment of the U.S. Constitution as well as the Minnesota Constitution.  Better, let’s change the laws to make them less unfair.

 Can a juvenile be a “predatory offender” due to sexting or being a young lover?

Labeling juveniles “predatory offenders,” requiring them to register their whereabouts, vehicles, schools, addresses, and on and on; and sending them to lock-up in prison of they slip up any little part of doing so – is that what we really want to do after a juvenile has had consensual sex with his or her beloved, or after sexting?

Rehabilitation vs. Predatory Offender Registration for ten years to life.

Juvenile courts were a result of social reform movements of the late 19th Century.  Rather than criminally prosecute juveniles like adults, a separate juvenile court has been set up with a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.  An important aspect of juvenile courts is that they have traditionally been non-public – confidential – to protect the juvenile from severe collateral consequences, and allow the kid to leave youthful mistakes in the past.  In recent years, that has been eroded to a degree.  In Minnesota, if a juvenile is charged with a felony and is 16 years or older, the case is public. (Almost all “sex crimes” are felonies in Minnesota.)

Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”   See, Minnesota Statutes § 243.166.  This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.  The only ways to prevent a juvenile charged with a sex crime from being required to register with the state as a sex criminal for ten years to life; is to get the entire case dismissed, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.  Criminal lawyers and courts can wrestle with these things, to try to save some young people from the jaws of the law.  But wouldn’t it be better to change the laws to make them less unfair and less harmful?

Thomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.

Marijuana Medical Necessity: Why Minnesota Needs a New Law Affirming Your Right to Present a Medical Necessity Defense to a Marijuana Charge

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 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.

med-mj-mn-signThe 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.

Minnesota’s Incomplete Marijuana Decriminalization – the Hashish Technicality

In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it?  Minnesota has only partially decriminalized marijuana.  Here is how.

Hashish is marijuana (or cannabis). It is a compressed or purified preparation of marijuana, that people around the world have safely used for thousands of years for recreational, medicinal and religious purposes. It’s made of cannabis-plant trichomes, flower and leaf fragments.  makehashMechanical methods remove the trichomes from the plant, screening by hand or with motorized tumblers. The resulting powder is heated and compressed into hashish.  Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin, which is filtered.  Then the solvent is boiled off leaving behind the resins – called honey oil, “hash oil,” or wax.

The problem:

Minnesota Statutes contain technical definitions that don’t always make common sense, and are sometimes 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.”

Increasingly in Minnesota, people found by police to be in possession of a small amount of hashish or similar “resinous form of marijuana” are being charged with felony crimes.  Under current Minnesota law, any amount – even a small amount – of hashish, hash oil, cannabis wax, or a similar “resinous form of marijuana” can be charged as a felony crime.  This includes people who are lawful  medical marijuana users in other states, found with a small amount of the resinous form of marijuana in Minnesota.

In contrast, 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana is decriminalized 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 the exclusion of “resinous form of marijuana” makes no sense:

It’s marijuana:  There is no question that the “resinous form of marijuana” (hashish, honey oil, cannabis wax, etc.) is marijuana.  It’s simply a form of marijuana.  Another provision of Minnesota law explicitly recognizes this.  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 Public Policy favors the resinous form over the plant-form:  Last year in 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program which specifically found that 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, as a matter of legislatively declared public policy.  Minnesota medical marijuana program participants will be able to lawfully possess and use the resinous form of marijuana obtained through the program, but will be deemed criminal if they use or possess the plant-form of marijuana.

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 law continue to make felons out of people in Minnesota who possess a small amount of the “resinous form of marijuana”?  The technical distinction between marijuana in plant form versus resinous form is lost on most people, who typically believe they are in compliance with the state’s decrim law – only to discover their error after it is too late.

The law should be consistent.  It should treat people fairly.  It should not create felons based upon arbitrary distinctions and technical legal definitions that don’t make sense to people.

The remedy?

The Minnesota legislature can fix this.  How?  Pass a Bill that amends Minnesota Statutes Section 152.01, subdivision 16, defining a “small amount” of marijuana, to delete the language “this provision shall not apply to the resinous form of marijuana.”  That should solve the problem, and bring more common sense and equity into the law.

House Version of Competing Minnesota Medical Marijuana Bills Faces Legal Hurdles That Senate Version Does Not

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.

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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.

Conflicting Medical Marijuana Bills in Minnesota: Senate version is Good, House version is Bad

This week, the MN Senate passed a medical marijuana Bill that is better than nothing. Friday May 9, 2014,The MN House passed a Bill that is worse than nothing. The two Bills will now go to a Sentate-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.

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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)
Access Points 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)
Laboratories 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)
Qualifying Conditions 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)
Caregivers 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)
Anti-Discrimination Provisions 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)
Limitations 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)
Packing Requirements 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)
Labeling Requirements 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)
Penalties 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)

 

Religious use of marijuana defense prevails in Minnesota Rastafarian case.

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.

Rastaman-Vibration  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:

1) whether the individual holds a sincerely held belief;

2) whether the regulation burdens the exercise of religious beliefs;

3) whether the state’s interest is overriding or compelling; and,

4) 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.

Thomas C Gallagher is a marijuana lawyer in Minneapolis.

Prostitution and Minnesota Law

How can we best understand prostitution?  It involves two important aspects of human existence: sexuality and money.  Given the controversy each of these inspire, can it be any surprise that prostitution has been controversial as well?  Prostitution has likely been around longer than money has been – quite a long while.  Throughout the history of the world, and among its many peoples, there have been many different views on prostitution.

Do we believe that social harms are caused by our sexuality, our money, our prostitution?  Put that way – yes, we do.  We have a social consensus that these do cause or contribute to social harms.  This begs the question, then, what best to do about it?  Can the laws play a role in reducing these harms?  If so, how?  Apart from the best legal approach to reducing social harms related to prostitution, what are the laws currently in Minnesota, in the United States?

Social Harms of Prostitution Are Reduced in the Netherlands

 Malum Prohibitum

Criminal laws can divided into malum in se and malum prohibitum

Malum In Se is literally “Evil in itself.”  A criminal statute addressing malum in se is one which is naturally evil, like murder, theft, etc.  Crimes at common law were generally mala in se.   An offense malum prohibitum, however, is not naturally an evil, but by legal fiat becomes one as a consequence of its being forbidden; like some gambling, drugs, which have become unlawful in consequence of being forbidden.

Does a law forbidding something make it go away, or reduce the social harms that thing may cause?  The examples of drug prohibition laws in the United States show us that the answer is “no.”  In fact, criminalizing disfavored social practices like alcohol and other drugs, and prostitution has greatly increased social harms associated with them.

Which social harms associated with prostitution can be attributed to the act of prostitution alone, as opposed to the underground economy created by legal criminalization?  Considering that question further, let’s make a list of social harms commonly associated with prostitution:

  1. Coercion.  Where prostitution is legal, there is little or no coercion of sex workers, compared to places where it is unregulated and criminalized.  Human trafficking thrives within a context of criminalized prostitution.  Where prostitution is legal and regulated, the hypocritical double standard and corruption issues do not provide a barrier to cracking down on kidnapping and human trafficking.  The use of drugs, threats, and violence to coerce sex workers is enabled and encouraged by criminalization.
  2. Exploitation of Children.   Where legal and regulated, it is rare to find children or underage people working in the sex industry.  In Minnesota, as in other places where it is crime, anything goes and prostitutes commonly begin before the age under 18.
  3. Nuisance.  In recent years, prostitution has been called a “neighborhood livability crime.”  Were it legal and regulated it could be zoned into a red light district, as pornography has been in Minneapolis.  Another recent trend, the move of prostitution from the streets to the web, has reduced this issues a bit in recent years.
  4. Corruption.
  5. The above are all direct products of criminalization; while those below are related to the act of prostitution, but aggravated by criminalization.
  6. Public Health.  Certain diseases are commonly spread through sexual activity, such as AIDS.  In places where prostitution is legal, regulation enforces frequent medical examinations, education, and makes police and other help more available to resist coercion.  Drug addiction overlaps with prostitution more where it is criminalized.
  7. Morality.  Many view the act of prostitution as immoral and unethical as a general matter, though compared to others, a minor sin.  Of course, many things just short of it are viewed differently.  What about compassionate use of prostitution for the physically handicapped, etc.?  Should the ‘law of man’ allow one to exercise virtue, and leave the domain of saving souls to God’s law?  By binding someone’s hands, do you not prevent them from exercising the free will to be virtuous?  Which is more immoral, prostitution or criminal laws creating and aggravating all of these social harms?

Minnesota Laws on Prostitution

Prostitution is an unregulated crime in Minnesota, part of the underground economy.  Minnesota’s criminal statutes on prostitution address the both the common and the unusual.

By far the most common prostitution prosecutions in Minnesota are those against would be customers and providers.  These are generally the result of police sting operations, which employ deception.  Traditionally these began on the streets, often motor vehicles, or in storefronts or other places.  In recent years, they often begin online over the internet, for example on Craigslist.  These are generally charged as misdemeanor or gross misdemeanor crimes.

Felony prostitution crimes in Minnesota are relatively rare, and include those involving people under 18 years old, pimps and promoters, and coercion.  It is likely that the fact that prostitution in Minnesota thrives in an unregulated, underground economy makes it extremely difficult for law enforcement (police) to effectively investigate these kinds of problems.  Ironically, legalizing prostitution would make it vastly easier for law enforcement to target these higher priority problems directly (under 18 years old, pimps and promoters, and coercion).

By Minnesota prostitution lawyer  Thomas C Gallagher .