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Marijuana Grow

Marijuana Grow Cases in Minnesota

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Prosecutors file marijuana grow charges in both federal and state courts.  Marijuana grow defense attorney Thomas Gallagher provides an overview of Minnesota criminal marijuana grow laws.

But most marijuana growing prosecutions are in State court, not federal.  One reason?  If harmful to health at all, marijuana is safer than other drugs.  And not only that — the majority of the United States population has tried it at least once.

In addition, many United States Presidents smoked marijuana. And later we elected them to the highest public office.  So some go to the White House; while others go to the jailhouse.

Minnesota’s Criminal Prohibition of Marijuana: Grow laws

Unlike other states, Minnesota State Statutes still provide for criminal remedies when sought by the government, for marijuana.  And most of these prosecutions are under Minnesota Statutes Chapter 152, titled “Drugs, Controlled Substances.”

Marijuana grow laws in Minnesota
Marijuana grow laws in Minnesota

Until a few years ago, if you possessed growing marijuana, the government could prosecute you for possessing it.  Only with evidence of an actual sale; could the government prosecute for criminal sale of the malum prohibitum.  That was then.

(Sale of a “controlled substance” in Minnesota is a felony.)

In recent years, however, the prohibitionists expanded the laws to create a new legal fiction targeting the marijuana grow.  They created a crime by technicality provision – to turn possession of growing marijuana into a fictional “sale.”

A Rose is a Rose is a … Sale?

How did the ingenuous legislature do it?  It’s a complex bit of sophistry.  Here goes:

  1. Prosecutors can charge a person in Possession of growing marijuana with a Controlled Substance Crime of Possession.
  2. The government changed the definition of “Sell” in Minnesota Statutes Section 152.01, subd. 15a, to now include “to manufacture.”  Get that?  So their claim is that to “manufacture” is the same thing as to “sell.”
  3. Next, in their new definition of “Manufacture” at Minnesota Statutes Section 152.01, subd. 7, they have defined “manufacture” to mean “cultivation” of “drugs.”

So you see?  By legislative fiat they purport to, first, define “cultivation” as “manufacture.”  And then, next, they presume to define “manufacture” as “sell.”

So, according to these lawmakers – and their lobbyists – cultivation is manufacture is selling.  Apparently they believe they have the legal power to turn black into white; and possession into sale.

Just think of all the Minnesota farmers and gardeners! So now they should be able to avoid the labor of harvesting, processing, distribution and sale; once grown!

Instead, the money from the “sale” must magically appear in their pockets.  Thanks Minnesota legislature!

Does the word “Cultivate” actually mean “Sell?”

No?   Well, the Minnesota legislature claims otherwise.  Minnesota’s marijuana grow laws contain nonsense.

Minnesota lawmakers, influenced by the state’s prosecutors, have taken a page from Humpty Dumpty in Alice Through the Lookinglass:

Alice-humpty-dumpty

“When I use a word,” Humpty Dumpty said in a rather scornful tone, ” it means just what I choose it to mean – neither more nor less.”

The question is,” said Alice, “whether you can make a words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be the master – that’s all.”

Lewis Carroll, Alice Through the Looking-Glass (1872)

But Henry Hart and Albert Sacks warn:

marijuana grow laws house of cards

“Language is a social institution. Humpty Dumpty was wrong when he said that you can make words mean whatever you want them to mean. The language belongs to the whole society and not to the legislature in office for the time being.”

Henry Hart & Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Cambridge, Mass, 1957), p. 1338

Drug prohibitionists appear desperate about the marijuana grow.. Why else put this kind of tortured language into Minnesota law?

But what about us? Should we allow criminal conviction of a person on a technicality?  Should we allow the government to ruin a person’s life with overreaching, nonsense laws?

Statutory nonsense verse

The legislature thinks it can define terms in any way they wish, regardless of common meaning.  Like Humpty Dumpty in Alice, sometimes they go too far.   The legislature gives words a statutory definition completely divorced from their common meaning.  And they’ve done it again – in Minnesota’s marijuana cultivation laws.

Limits on legislative power

Yet – their power does have limits.  And We, the People, are complicit in unjust marijuana cultivation laws to the extent that we tolerate them.  So we must hold the legislature accountable, when need be.

The courts can strike down such nonsense as unconstitutional.  And we can ask the courts to do so.

Notice and our Right to Due Process

Notice is a cornerstone of fundamental fairness in criminal law. And the U.S. and Minnesota Constitutions say that any criminal law is void; if it fails to give fair notice of what conduct is off-limits. It’s no law at all.

Like when legislative language targeting the marijuana grow equates “cultivate” with “sell;” then punishes someone who did not actually sell marijuana more severely. That is not fair notice at all.

The power of the conscience of the community – the jury

And the People on the Jury have the power of Jury Nullification.  The jury can acquit anyone of criminal charges based on a law that that the Jury finds to be nonsense. 

Even one juror can veto the law.  One lone dissenter on the juror has the power to stop a “guilty” verdict.  Why?  Because a verdict in a criminal case must be unanimous.

The framers designed this jury power to be a check and balance on government power.   The jury’s power limits the power of the elites in the legislative, executive and judicial branches.

If the judge won’t dismiss a prosecution based on these nonsense marijuana grow laws, they jury still can.

Grow a tomato; money magically appears?

"Rose is a rose is a rose is a rose." Gertrude Stein, Sacred Emily, Geography and Plays.
“Rose is a rose is a rose is a rose.” Gertrude Stein, Sacred Emily, Geography and Plays.

If you grow a tomato in your backyard, then eat it there off the vine; have you by doing so also “Sold” it?  Replace “tomato” with “marijuana.”  Same conclusion?

Minnesota Statutes §152.01, subd. 15a, defines “Sell” to include “to manufacture.”  Then, , their definition of “Manufacture” in Minnesota Statutes §152.01, subd. 7, means “cultivation” of “drugs.” 

Tricky, aren’t they?

By redefining the common meaning of words, they attempt to turn “growing marijuana” into a “sale;” even where no sale took place.  No money.  No buyer.  That’s how low Minnesota’s marijuana grow laws go.

New marijuana grow law: number of plants

A recent Minnesota statutes amendment added a new criteria for severity level – number of “plants.”  Minnesota Statutes Section 152.021, subd. 2 , First Degree Controlled Substance Crime – Possession:

 (6) the person unlawfully possesses one or more mixtures of a total weight of 50 kilograms or more containing marijuana or Tetrahydrocannabinols, or possesses 500 or more marijuana plants.

And a similar provision is now in Minnesota Statutes Section 152.022, subd. 2 , Second Degree Controlled Substance Crime – Possession:

(6) the person unlawfully possesses one or more mixtures of a total weight of 25 kilograms or more containing marijuana or Tetrahydrocannabinols, or possesses 100 or more marijuana plants.

But the Third Degree through Fifth Degree criminal statutes make no mention of “plants.”

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So, this brings into state cases an issue that has plagued federal cases for years.  What is a “plant?”  One thing for certain is that a rootless clone is not a plant.

But using the number of plants as a measure of severity makes little sense.  It’s not good public policy.  We should delete it from the law.  Better yet, re-legalize, with legal small-batch home grow, for both medical marijuana and adult-use.

But in the meantime, marijuana grow defense attorney Thomas Gallagher works hard to defend the innocent people caught up in these criminal prosecutions.

Cannabis is the plant.  Marijuana and hemp are legal categories.

Now that hemp is legal, we must remember that marijuana comes from the same cannabis plant.

And though hemp is now legal to possess, the state regulates growing hemp.

The difference between hemp and marijuana is the THC level in the plant.  But on July 1, 2019, Minnesota laws changed. They now define hemp by THC level in the products of the plant as well.

Identification of the alleged marijuana is a burden for the prosecuting attorney.  And if they can’t prove it with evidence, the defendant is not-guilty.

Marijuana grow laws: Another Failure in the Government’s War on the People

Since the 1930s, Prohibitionists claimed that they could stop the Supply.  Then, they would force People to conform.  They seem to believe that government threats of violence, prosecution, imprisonment would stop people from using it.  They claimed that simply making it a crime could reduce usage.

Prohibition increases usage

Of course, as economist Milton Friedman pointed out; curtailing supply increases the price where demand is strong.  Then the price increase leads to increase in supply.  And so the cycle has gone for decades – until now.  The marijuana usage rate in the United States increased from cultural niche in 1934, to a now near-universal social experience.

Blaming the victim for the law’s harms
fight terrorism, buy domestic. NORML. A home marijuana grow shrinks the illegal market.
A home marijuana grow shrinks the illegal market.

In past decades Prohibitionist propaganda asserted that buying marijuana in the underground economy was like supporting terrorism overseas.

But as the government “war” on marijuana imports raged, a funny thing happened.

Economist Milton Friedman was right: marijuana became the number one cash crop in United States agriculture (and still is).

It is easy to grow.  The government’s drug wars against The People are a complete and unmitigated failure.  The government just won’t admit it yet.

Meanwhile, Minnesota Marijuana Grow Defense Attorney Thomas C Gallagher helps people busted for growing in the last days of Prohibition.

NORML Legal Committee Member

Don’t become another casualty of the government’s failed drug war.  Fight back. 

Call Thomas Gallagher.  612 333-1500

See: Marijuana Legalization in Minnesota: What Should It Look like?