What is the medical necessity defense to a marijuana charge?
First, consider that humans have used marijuana, or cannabis, as medicine for thousands of years. For millennia, people used cannabis for relief and treatment of disease.
Modern medical research, as well as clinical practice, has proven the efficacy of marijuana. Medical science shows it helps relieve symptoms as well as cure diseases — from the bothersome all the way to cancer.
And marijuana had never been a crime. But then beginning in the 1930s in the United States, the alcohol Prohibition was disintegrating. And then the government developed a new replacement Prohibition — the marijuana Prohibition.
The Long History of the Medical Necessity defense
People widely used marijuana as medicine at the time. Medical Doctors prescribed it. And its medicinal use persisted for decades. But laws increasingly criminalizing it eventually drove medical use of marijuana underground. So medical use continued but it was made criminal.
Necessity has been a recognized legal defense to what otherwise would be a crime, since ancient times. And so, we see the defense as natural law. The defense is commonplace in nature, across cultures, across human history.
The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil summarizes some of this history:
“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 Lesser of Two Evils Defense
We call it the necessity defense.
And it is an affirmative defense to a criminal charge – a “lesser-of-two-evils” defense. After the accused presents evidence supporting the defense; the judge instructs the jury on the law of the defense of necessity. And if the jury accepts the defense, that means the defendant did the prohibited act intentionally; but did so reasonably to avoid a greater evil, out of necessity. So it is not a crime.
It is often a justification type defense. So, if the jury accepts the defense; that does not mean the defendant did not intentionally do the prohibited act. But rather, it means that he or she reasonably did so to avoid a greater evil, out of necessity.
Common Law and Jury Trial
It is a common law defense — old and widely accepted. Like many other common law defenses, it has 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 may provide you with relief or cure. Even though marijuana may be a crime to possess or grow; you may choose your health (or your child’s life) over the Prohibition menace.
According to mainstream polling, a super-majority in the United States today agree that medical use of marijuana should be legal.
And most jurors likely share that majority view; that medical marijuana is not a real crime. But courts in Minnesota do not currently trust jurors to decide cases with all of the evidence.
The Constitution guarantees the right to a jury trial, and the right to present a complete defense. So, you have the right to present the jury with your true defense. Then, the jury can accept your defense, or reject it. That is what a jury trial is.
In our system of checks and balances; trial by jury limits the government’s power to enforce laws that violate the conscience of the community.
Yet when a chronic pain patient using marijuana as medicine faces marijuana charges; but a judge does not permit her to have their physician testify, or to testify about it herself; the patient is denied a meaningful jury trial.
And when a judge excludes defense evidence from the jury; the judge violates her right to present a defense.
Minnesota’s 1991 Hanson Case
So why then have Minnesota appellate courts failed to support your right to present your medical necessity defense?
To find out, you can read the thirty-year old Minnesota Court of Appeals case from 1991, State v. Hanson.
Though every court case is fact specific, the court’s main rationales in the State v. Hanson case appear 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.”State v. Hanson, 468 NW2d 77, 78-79 (Minn.App.)
Currently Accepted Medical Use
Let’s consider their first point, that marijuana’s Minnesota “Schedule 1” status implies “no currently accepted medical use in the United States.”
Such an “implied legislative determination” based on the Schedule 1 classification; if ever true, is not true today. Intervening events and legislation have overcome that court’s 1991 presumption.
Because though Minnesota still classifies marijuana as “Schedule 1;” the majority of the U.S. population now lives in states with legal medical marijuana programs.
And medical professionals now currently accept marijuana as having medical use — including the United States Surgeon General.
And since the Hanson case, even Minnesota has joined the majority with legal, state-sanctioned, medical marijuana. Minnesota’s newer, comprehensive medical marijuana law has destroyed the Hanson court’s reading of legislative intent. The Minnesota legislature has now spoken: Marijuana does have “currently accepted medical use in the United States.”
So the underpinnings of the 1991 Hanson court’s gutting of the common law medical necessity defense, collapsed.
No Explicit Legislative Intent to Destroy Rights
The second argument in Hanson, was that since the Minnesota legislature had enacted the THC Therapeutic Research Act (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.
But the legislature never actually said that.
This is the classic rhetorical form — expressio unius est exclusio alterius; a Latin phase meaning “the expression of one thing is the exclusion of the other.” But that was a stretch. After all, the Minnesota legislature did not specifically abrogate the common law medical necessity defense.
And perhaps ironically, the THC Therapeutic Research Act, Minnesota Statutes Section 152.21, subd. 6, itself removed marijuana from Schedule 1 to Schedule 2:
“For the purposes of this section, THC is removed from Schedule I contained in section 152.02, subdivision 2, and inserted in Schedule II … .”Minnesota Statutes Section 152.21, subd. 6
So, the same statute the Hanson court cited to justify denial of a jury trial; undermines its “Schedule 1 – no medical use” argument. Because that very statute removed marijuana from Schedule 1 for its purposes.
The Hanson case was from 1991. But much has changed since then, politically, legally, and in the medical research community. So would a modern Minnesota appellate court right this 1991 wrong? In 2014, it didn’t.
Minnesota’s 2014 Thiel Case
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; where the judge hid the truth from the jury about his:
- medical condition,
- medical recommendation for marijuana, and
- California medical marijuana card.
But the 2014 Thiel case also predated Minnesota’s Medical Marijuana law. So a court should not decide the Thiel case the same way; now that the Minnesota legislature has clearly spoken: Marijuana does have “currently accepted medical use in the United States.”
So a person facing a marijuana charge can raise the medical necessity defense in Minnesota. But know the legal history. And be ready for a fight.
The Legislature Could Right This Wrong
Alternatively, the Minnesota legislature could pass a Bill. A new statute could correct court misinterpretation of legislative intent. And a new law could guarantee your right, and the jury’s right, to the truth.
A Bill in the Minnesota legislature could restore the medical necessity defense to medical marijuana patients facing marijuana charges. And it would clarify that patients’ “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or derivatives.”
It would guarantee that the accused could use this as an affirmative defense. So that means the defendant would have the initial 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.
Are you a Minnesota medical marijuana patient facing a criminal charge?
Then you can benefit from the in-depth information on this website.
And you can call Attorney Thomas Gallagher for help understanding your options.
Thomas Gallagher is Minnesota’s Marijuana Lawyer, with a criminal defense practice based in Minneapolis.
And see our article: Removing Marijuana from Minnesota’s Schedule 1 Law