Kevin B. Zeese, Esq., is the president of Common Sense for Drug Policy in Washington, D.C.
Seriously ill Americans are faced with a difficult choice if they need cannabis as a medicine—they can either obey the law and suffer the consequences of their illness and perhaps die, or they can break the law and face criminal prosecution. Similarly, healthcare professionals caring for patients who could benefit from cannabis also face a difficult choice. They can either hide information from their patients on the medical benefits of cannabis or they can tell their patients about its medical utility and advise them to break the law.
Most patients decide it makes more sense to preserve their health than to obey the marijuana laws. Occasionally such patients are prosecuted. Many doctors also conclude that they must tell their patients about marijuana's medical value. Indeed, nearly half the oncologists in a recent survey admitted they recommended that their patients get illegal marijuana to treat the side effects of their cancer treatment (Doblin and Kleinman 1991). So far, no doctor has faced ethics charges or criminal prosecution for giving such advice.
One of the more absurd by-products of the prohibition of marijuana has been the denial of a useful medicine to seriously ill people. As patients have discovered the medical uses of cannabis, they have come into conflict with the criminal law. Some of those patients who have chosen to protect their health rather than obey the marijuana law have sometimes been arrested and prosecuted for marijuana possession or cultivation.
Advice to Patients and Doctors
Before discussing legal defenses for patients using marijuana as medicine, I will briefly focus on the advice to give such patients regarding the legal aspects of the matter. Answers to medical questions can be found in the other parts of this book.
Patients who decide to break the law and take this medicine must be advised of their real risk: they could face prosecution, which could result in fine, imprisonment and or forfeiture of property. The patient should be advised that there is currently no legal method of getting medicinal marijuana in the United States. In 1992 the federal government closed the only route available to such patients, the compassionate Investigational New Drug (IND) program.
The IND program was intended to be used for drugs that have not yet been approved for marketing but appear to have therapeutic potential. From 1976 to 1991 the Food and Drug Administration (FDA) allowed limited access to medical marijuana through the IND program. To gain access to this medicine from the government, the patient's physician was required to submit a lengthy, "red-taped" IND application to the FDA that included a specific research protocol for the patient. Once the FDA approved the IND application, the DEA then approved the security of the medicine and the National Institute on Drug.Abuse (NIDA) supplied the marijuana to the patient. Over the years, thousands of patients obtained marijuana in this way through either individual or group IND applications. (The group applications came from states seeking marijuana after their legislature approved its use.)
While there is currently no legal source for marijuana, patients can get access to a synthetic THC pill (tetrahydrocannabinol, the primary psychoactive cannabinoid) through a doctor's prescription. Though many patients do not get satisfactory results from the pill, it should be tried before resorting to illegal marijuana. (As a lawyer, I have to give this legal advice.) When patients try the synthetic THC, they should document whether it worked and how it affected them. They should inform their doctor of the results and make sure that their doctor includes these comments in their medical records. In case of arrest, this documentation may be useful in defending against marijuana charges in the future.
The patient, through his or her doctor, should apply to the FDA for an IND before using marijuana illegally even though the IND program is closed at the time of this writing.' Similarly, if there is a state agency, the patient should contact it. If a negative response is received, political leaders should be asked to contact the state or federal bureaucracy on the patient's behalf. It is important for the patient to try all legal means to acquire marijuana before resorting to illegal activity and to keep records of these efforts. Some patients have even called their local police chief to ask for advice or to ask if seized samples can be provided. Previous attempts at legal procurement can be very persuasive if the patient is later arrested for a marijuana violation.
If a patient decides to use marijuana, he or she should avoid letting people know about it, never share his or her medicine with anyone, never sell marijuana to anyone under any circumstances, and only grow or obtain as much as is needed for medical purposes. The patient should let his or her doctor know about the use of marijuana and ask the doctor to keep records of how it affects the course of the patient's illness. In particular, records should be kept on any reductions in other prescription medicines after beginning marijuana use.
If the police come to the patient's residence and ask about marijuana cultivation or possession, the patient should be honest. Right from the outset the patient should explain that it is being used for medical purposes and has not been shared with anyone.
The Medical Necessity Defense
The defense of necessity is one long recognized in common law'The defense has been noted in numerous treatises on criminal law (Kenny 1907; Clark and Marshall 1940; Burdick 1946). The defense has been described as:
An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable harm [Clark and Marshall 1940, p. 104].
However, it has been said that the common law defense has been "more discussed than litigated."' This has changed somewhat in the use of the defense in marijuana cases (George Washington Law Review 1978). The medical necessity defense has now been successfully used to defend patients suffering from glaucoma,' multiple sclerosis4 and Alps' against marijuana charges.
The medical necessity defense is highly specific to the individual charged. In order to effectively utilize the defense, the defendant must have a medical condition that can be treated with marijuana and is beyond the reach of legally available medicines. Some states have statutes that authorize the necessity defense and require specified elements of proof needed for the defense to succeed. And while the defense has been successful in some cases, it has failed in an equal number of cases. Thus, it is a difficult defense that requires skilled lawyering in order to succeed.
The first case in which medical necessity was successful was United States v. Randall (1976). In that case Robert Randall was charged with possession of marijuana when marijuana plants were seen growing on his porch in Washington, D.C. Randall admitted that he was growing marijuana and defended it by arguing that marijuana was necessary to preserve his eyesight from glaucoma. Conventional drugs, which had initially controlled his eye pressure, had become ineffective, and by the time of his arrest, he had suffered loss of sight in his right eye and considerable impairment in his left. Mr. Randall had begun using marijuana in college and discovered by accident that it provided relief from his eye problems.
The court reviewed the common law history of medical necessity and found the defense available if breaking the law was caused by "the press of events" and "arises from a determination by the individual that any reasonable man in his situation would find the personal consequences of violating the law less severe than the consequences of compliance." The court found three situations in which the defense was not applicable.
1. If the circumstances compelling the violation of law were brought about by the accused: The court cited United States v. Moore,' where a defendant appealed a conviction for heroin possession arguing that because of his addiction, he lacked the capacity to choose to obey the law. The court refused to vacate his conviction because it reasoned that he had freely brought the addiction upon himself.
2. If a less offensive alternative was available: The court cited the case of Bice v. State7 where an individual was convicted of transporting liquor to a church. The defendant appealed, arguing the liquor had been prescribed for medical purposes and that it was kept in his carriage in the vicinity of the church in case it was needed. The court recognized the legal use of liquor in treating certain illnesses but sustained the conviction stating that the defendant should "either stay at home or ... take with him other medicine."
3. If the harm avoided is more serious than that performed to escape it: The court illustrated this exception by reference to a case in which prisoners overtook a prison to protest its inhumane conditions. The court ruled that prison control was more important than the prisoners' grievances.'
With regard to Mr. Randall's glaucoma, the court found only the third exception could possibly apply. With regard to that exception, the court said "the evil he sought to avert, blindness, is greater than that performed to accomplish it, growing marijuana in his residence." Any ill effects from the marijuana would be suffered only by the defendant, and as he was growing marijuana for his own consumption he was not contributing to the illegal market in marijuana.
The second successful case involved a multiple sclerosis (MS) patient, Samuel Diana.' In that case the appellate court found that the defense was applicable after the trial court had found Mr. Diana guilty of marijuana possession. The court noted that "the common law has long recognized the existence of a defense of necessity" and said the defense is available "when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which a social policy deems greater than the harm resulting from a violation of law." The appellate court remanded the case to the trial court to determine whether medical necessity existed in Diana's case.
The trial court heard testimony from several sufferers of MS, Mr. Diana, and physicians. Diana and the MS sufferers testified that marijuana relieved their symptoms. Specifically, Diana testified that within thirty seconds of using marijuana, he noticed his double vision leaving, tremors disappearing, the unsteadiness of his walk improving, nausea being alleviated and stiffness in his joints improving.
The court ruled that Mr. Diana had established his defense by a preponderance of the evidence and found him not guilty, setting aside the conviction. The court found that marijuana minimized the crippling effects of multiple sclerosis. The benefits to the defendant outweighed society's interest, and there was no other drug as effective in minimizing his disease. The court emphasized that this ruling applied only to Mr. Diana and the particular facts and circumstances of this case.
The third successful case involved a glaucoma patient Elvy Musikka." Arrested for growing four plants in her home, Ms. Musikka had an extensive medical history, including forty years of trying all available medications and operations for her glaucoma. Indeed, she underwent more than twenty risky surgical procedures in an effort to retain her sight, including experimental procedures. The last of these left her blind in her right eye. Ms. Musikka never denied her marijuana use. Her doctor, Paul Palmberg of the Bascom Palmer Eye Institute, testified that he was initially skeptical of the medical value of marijuana, but after monitoring her eye pressure for several years after she started using it, he became convinced that it worked. In fact, its use resulted in significantly lowered eye pressures for Ms. Musikka.
The court compared the defense of necessity to that of self-defense, i.e., an act that would constitute a crime can be justified by the need to protect oneself or another person from harm. In essence, the person is "compelled by circumstances beyond his control to breach the law in order to prevent injury." Thus, with medical necessity, the law forbids a medicine the individual needs. The court found that the defense of medical necessity would apply in Ms. Musikka's case if the trier of fact found by a preponderance of the evidence that:
a. a genuine medical disorder does, in fact, exist;
b. the defendant did not bring about the circumstances causing her to break the law, that is, Ms. Musikka was not responsible for causing her medical disorder, glaucoma;
c. weighed under the totality of the circumstances, Ms. Musikka's decision to do the illegal act, that is, to grow and use marijuana, was genuine and reasonable, tailored to minimize the effects of the medical disorder; and,
d. the benefits derived from the use of the illegal substance are greater than the harm sought to be prevented by the controlled substances law, that is, whether Ms. Musikka's alleged "right to sight" outweighs the social harm that her use of marijuana might cause.
While the above would make a good model for jury instructions, in this case the judge was the trier of fact. The court found that all four tests were met and acquitted Ms. Musikka. In making these findings the court relied heavily on the findings and recommendations of DEA administrative law judge Francis L. Young. Judge Young had been considering a petition filed to have marijuana rescheduled under federal law. In September 1988, after over two years of hearings, Judge Young ruled that marijuana should be rescheduled. He issued a 63-page ruling that included very strong findings of fact (DEA 1988). Even though the DEA administrator refused to follow Judge Young's recommendation, this decision should be relied on by counsel litigating medical necessity defenses.
In acquitting Ms. Musikka, Judge Mark E. Polen was careful to limit the ruling to Ms. Musikka. He did not want his ruling to be perceived as a green light for others to use marijuana. However, he went on to urge the state and federal legislatures to resolve what he described as an "intolerable, untenable legal situation." He expressed concern about a law that "forces law-abiding citizens into the streets—and criminality—to meet their legitimate medical needs."
Another successful medical necessity defense involved two AIDS patients, Barbra and Kenneth Jenks." The trial court refused to accept the defense of medical necessity and convicted the couple for cultivation of marijuana and possession of drug paraphernalia. Mr. Jenks became infected with AIDS when getting a blood transfusion due to his hemophilia. He unknowingly passed it on to his wife. Mrs. Jenks rapidly lost weight, dropping from 150 to 112 pounds during a three week period due to constant vomiting and lack of appetite. Shots for nausea left her unable to function and in a stupor. Mr. Jenks started treatment with AZT. This left him nauseous and unable to eat resulting in significant weight loss. Through an AIDS support group they discovered that marijuana was being used by other patients to control nausea and increase appetite. They asked their doctor if he could get them marijuana legally, but he stated he was unable to do so. The Jenks decided to grow two plants and were arrested.
The court described the defense as follows:
The pressure of natural physical forces sometimes confronts a person in an emergency with a choice of two evils: either he may violate the criminal law and thus produce a harmful result, or he may comply with those terms and thus produce a greater or equal or lesser amount of harm. For reasons of social policy, if the harm which will result from compliance with the law is greater than that which will result from violation of it, he is by virtue of the defense of necessity justified in violating it.'2
The court noted that while there was no legislative declaration of necessity, it was recognized at common law13 and never rejected by the legislature. The court rejected the argument that the legislature, by passing a controlled substances act prohibiting marijuana, and finding it had no accepted medical use, had made the necessity defense unavailable. The court concluded that unless a statute speaks unequivocally, it should not be interpreted to displace common law more than is necessary." The court concluded the Jenkses met the requirements of the defense. It adopted the standards of United States v. Randall and State v. Musikka in reaching this conclusion.
The final example of a positive case involving medical necessity in marijuana cases was a decision by the Supreme Court of Idaho.15 This decision merely found that the medical necessity defense existed. It did not rule on the specific claims of the appellant. When the case was remanded for trial, the prosecutor dropped the charges.
The Idaho court did not create a special defense of medical necessity; it merely stated that the common law defense of necessity may apply. The court found the defense had four elements: (1) a specific threat of immediate harm; (2) the circumstances were not brought about by the defendant; (3) the same objective could not have been accomplished by a less offensive alternative; and (4) the harm caused was not disproportionate to the harm avoided.
In addition, to these positive cases there have also been some negative decisions. Usually, the result is brought about by the specific facts of the case.
Some cases lost because the defendant did not try all legal channels, particularly the IND program16 or a state research program.17 It should be noted that with the closure of the federal IND program, there is no legal source for medical marijuana in the United States. Thus, this is currently not a factor in medical necessity cases.
More troublesome is the view accepted by one court that where a state has passed a law allowing the medical use of marijuana in a research program, there is no medical necessity defense. Thirty-five states have enacted such laws. The theory of the court in these circumstances is that the passage of the law indicates that the legislature considered marijuana's medical use and passed the legislation it thought was appropriate." There are two responses to this position. First, most of these laws were passed in the late 1970s and early 1980s and since that time new diseases have become known that are helped by marijuana, and the federal government has closed the only source for marijuana for such programs. Thus, a patient can no longer apply to the state research program to obtain marijuana. Second, there are many diseases that affect a small number of people, and therefore the legislature would not be aware of the medical use of marijuana in these circumstances.
Another factor that can weigh heavily against a defendant is a situation in which a large amount of marijuana is being grown or possessed—larger than would be needed for medical purposes." This presents a very real problem for many medical marijuana users. Medical users do not use the drug in the same way recreational users do. For example, Robert Randall is legally prescribed ten marijuana cigarettes per day. Even a heavy recreational user would not consume more than one or two per day. Thus, the court needs to be educated about how patients use marijuana medically.2° Also, not all patients have green thumbs and therefore grow more than necessary to offset the potential loss of some of their plants.
Only one court has refused to find that a medical necessity defense exists. In Commonwealth v. Hutchins (1991),21 the Supreme Judicial Court of Massachusetts concluded in a 3-2 decision that the defense simply was not available in marijuana cases. The majority accepted the defendant's proffer of evidence concerning his disease, scleroderma, and marijuana's positive impact on it but harshly concluded:
In our view, the alleviation of the defendant's medical symptoms, the importance to the defendant of which we do not underestimate, would not clearly and significantly outweigh the potential harm to the public were we to declare that the defendant's cultivation of marihuana and its use for his medicinal purposes may not be punishable. We cannot dismiss the reasonably possible negative impact of such a judicial declaration on the enforcement of our drug laws, including but not limited to those dealing with marihuana, nor can we ignore the government's overriding interest in the regulation of such substances.
The dissenters argued that this balancing test should have been made by the jury, not by judges. It went on to criticize the majority for not understanding the "humanitarian and compassionate value in allowing an individual to seek relief from agonizing symptoms." The stinging dissent led to the passage of a marijuana research law in Massachusetts and the defendant was pardoned by Governor William Weld.
Practical Issues in Defending Medical Necessity Cases
There are a series of practical and tactical issues an attorney faces in presenting the medical necessity defense. First, the attorney must recognize that this is a difficult defense, which has succeeded only a handful of times. Therefore, in addition to thinking about presenting a defense, counsel should be thinking about preparing for sentencing. Unlike other defenses, medical necessity defense is helpful in regard to sentencing. The defendant's illness will be graphically described, and the judge will hear in detail about his symptoms and medical history. The only potential downside in the defense is the judge perceiving the defendant as deceiving the court about why the defendant used marijuana. Thus, if the defendant has a history of marijuana sales or was in possession of a large amount of marijuana, the defense is not likely to be effective.
One of the most difficult things in presenting the defense is finding good witnesses. While there are expert medical doctors and researchers throughout the United States who will testify that marijuana is medically useful," it is often difficult to get the patient's treating physician to testify because local doctors do not want to be known as the "pot doc" or be harassed by police officials or government regulators. These are very real fears.
The testimony of the treating physician could be the most important of the case. If the doctor is unwilling to testify about marijuana use, it is useful to have the doctor testify about the defendant's illness, medical history, and symptoms. From this the attorney can get testimony about the reduction of the symptoms and the reduction of prescription drug use over particular time periods when the patient was using marijuana. This testimony can be built on by an expert witness. The expert can also submit for the record a great deal of written materials on the issue."
Other helpful testimony can come from other users of marijuana for medicinal purposes. Their testimony is helpful in demonstrating that any reasonable person in the same circumstances would make the same choice. The testimony also helps to demonstrate marijuana's usefulness for a particular illness or symptom. It can be difficult to find illegal users who are willing to come forward and testify. In State v. Diana, the court allowed the identities of other patients to be hidden from the public and labeled them John and Jane Does. Another alternative is to have patients who are legally using marijuana testify. Robert Randall of the Alliance for Cannabis Therapeutics (ACT) in Washington, D.C., has successfully testified in many such situations.
Finally, the defendant generally must testify when presenting a medical necessity defense. The finder of fact needs to understand the choice the defendant was faced with, the pain or other symptoms the defendant was suffering from, and the defendant's view of his or her medical history. The defendant needs to impress the trier of facts as an honest and law-abiding citizen who has been forced to make this difficult decision based on circumstances beyond the defendant's control.
Aside from determining the witnesses, a critical question is whether a jury trial or bench trial (before the judge) is more appropriate. None of the successful medical necessity defenses involved a jury trial, all were bench trials. Perhaps it is more likely for a judge to be able to weigh the violation of the marijuana laws than it is for a jury. While this track record is hard to ignore, if the judge assigned to the case is one who will be unable to understand that marijuana has positive uses because of his or her personal biases then a jury trial will be preferable. If there is to be a jury trial, it could be helpful for the jurors to understand that they have the right to dismiss the defendant if they believe the law is unjust or applied unjustly. More information on this is available from the Fully Informed Jury Association (FIJA).24
A final practical question I will consider is how to deal with the prosecutor. There are advantages to a surprise defense of medical necessity given its rare use. However, it is also possible to educate a prosecutor prior to trial and work out an acceptable plea agreement. If the latter path is chosen, any agreement on probation should avoid drug testing so that the patient can continue to use marijuana as medicine.
If a court refuses to allow a defense of necessity, counsel should be prepared to make a thorough proffer of the evidence that would have been presented if the defense had been allowed to proceed. Such a proffer is critical for appellate purposes.
As a concluding thought it is useful to quote Judge Mark Polen in,State v. Musikka (1988):
Finally, the Court is deeply disturbed by the broader implications of the testimony presented in this case. Medical necessity is a stringent, demanding legal defense. The practice of medicine, however, cannot be predicated upon the legal requirements of the medical necessity defense if it is to preserve health in a rational, compassionate manner. As this decision, and the earlier decisions cited herein illustrate, marijuana has "an accepted medical use in treatment." Indeed, the evidence indicates marijuana is now being employed, albeit illegally, by patients throughout the United States. In the vast majority of such cases, these desperately ill people are being forced underground and away from urgently needed medical supervision to acquire marijuana.
Until medicinal marijuana is made legally available, patients, healthcare professionals, and lawyers will be in a quandary. The highest concern in such situations should be the health and well-being of the patient, not compliance with the law. Healthcare professionals and lawyers should come to the aid of such patients, not shun them. It is not their fault they are in this position; it is due to circumstances beyond their control. As professionals, we can help to ameliorate this situation, or we can make it worse for someone who is already seriously ill. The choice is obvious.
'The Alliance for Cannabis Therapeutics in Washington, D.C., can help doctors with the paperwork involved in filing an IND. Its number is 202-483-8595.
2United States v. Moore, 486 F2d 1139 (D.C, Cir 1973).
'United States v. Randall, 104 Wash Daily L Rep 2249 (D.C. Super Ct 1976); State v. Musikka, Case No. 88-4395 CFA (17th Judicial Circuit Broward County, Dec 28, 1988), reported in 14 FLW 2 (Jan 27, 1989).
4State v. Diana, 604 P 2d 1312.
'Jenks v. State, no. 90-2462 (Ct App 1st Dist, Fl, Apri116, 1991).
'Infra. note 5.
734 S E 202 (Ca 1899).
8People v. Brown, 70 Misc 2d 224, 333 IVYS 2d 342 (1972). 'State v. Diana, infra. note 8.
"State v. Musikka, infra. note 7.
"Jenks v. State, infra. note 9.
i2Jenks v. State, infra., quoting W.R. LaFave and A. W. Scott, Jr, 1 Substantive Criminal Law, § 5.4 at 627; see also Arnolds and Garland, "The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, "J. Crim. L. and Criminology 289 (1974):65; note, "Necessity: The Right to Present a Recognized Defense" 21N. Eng. L. Rev. 779 (1985-86):21; Brown v. United States, 256 U.S. 335 (1921) (Where Justice Holmes stated: "Detached reflection cannot be expected in the presence of an uplifted knife.")
"The court cited Reninger v. Fagossa 1 Plowd 1, 19, Eng Rep. 1, 29-30 (1551):75; ("1-Wlhere the words of [the law] are broken to avoid greater inconvenience or through necessity, or by compulsion," the law has not been broken).
'4The court cited Carlile v. Game and Fresh Water Fish Comm'n, 354 So2d 362, 364 (Fla 1977); State v. Egan, 287 So2d 1, 6-7 (Fla 1973); Sullivan v. Leatherman, 48 So2d 836, 838 (Fla 1950)(en bane).
"State v. Hastings, No. 18444 (Sup Ct Idaho, Nov. 27, 1990).
"United States v. Burton, 894 F2d 188 (6th Cir 1990).
17State v. Tate, 102 NJ 64, 505 A2d 1000 (1983).
"State v. Hanson, N.W. 2d, C3-90-1628 (Minn 1991).
"Burton, infra. note 16 ("large quantity of marijuana produced without government sanction").
"Expert witnesses, including five legal medical marijuana patients, are available through Patients Out of Time (804) 263-4484.
2'Commonwealth v. Hutchins, E-5414 (Sup Jud Ct July 24, 1991).
"Four organizations that have helped find such witnesses are the Alliance for Cannabis Therapeutics (202-483-8595), Patients Out of Time (804-263-4484), Drug Policy Foundation (202-8951634), and the International Cannabis Alliance of Researchers and Educators (804-263-4484).
"The same organizations can supply a variety of written materials on this issue. Bob Randall of the Alliance for Cannabis Therapeutics, through Galen Press, has published several books that can be useful in this regard.
24For more information contact FIJA: P.O. Box 59 Helmville, MT 59843. (406) 793-5550 or 1-800-TEL-JURY
Arnolds and Garland. 1974. The defense of necessity in criminal law: The right to choose the lesser evil. Journal of Criminal Law and Criminology 65: 289-301.
Burdick, W. 1946. The Law of Crime. Albany, NY: Mathew Bender, p. 260.
Clark, W., and W. Marshall. 1940. Treatise on the Law of Crimes. 4th ed. Chicago: Callaghan. Doblin, R., and M.A.R. Kleinman. 1991. Marijuana as as antiemetic medicine: A survey of oncologists' experiences and attitudes. Journal of Clinical Oncology 9 (7): 1314-1319.
Kenny, C. 1907. Outlines of Criminal Law. New York: MacMillan, pp. 68-70.
George Washington Law Review. 1978. Medical necessity as a defense to criminal liability. 46: 273-298.
Necessity: The right to present a recognized defense. 1985-86. New England Law Review 21: 779-815.
Washington, D.C. U.S. Department of Justice, Drug Enforcement Administration. September 6, 1988. In the matter of marijuana rescheduling petition, Dkt. No. 86-22, opinion, recommended ruling, findings of fact, conclusions of law, and decision of administrative law judge.