Criminalization of Medical Marijuana - A Short History of Ideology Brutalizing Reason.
In the United States, the idea of making a "drug" or herb a crime is a relatively recent one, with historical roots in racism. Alcohol - a lethal addictive drug - is currently not a crime to possess. Marijuana - a non-lethal, non-addictive drug - is currently defined by the ruling government as a crime to possess, subject to labeling as a criminal and incarceration among other atrocities. Before the 20th Century, drug possession was not a crime. At common law, there was no such thing as "criminal drug possession."
In fact, to get medicine a person could go to an herbalist or pharmacist to get it, with or without a medical doctors recommendation ("Rx"), for medicines including opiates.
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What does this have to do with medical marijuana? The truth is that opiates and other potentially lethal drugs are legal for medical treatment use in Minnesota, but non-lethal marijuana possession for medical treatment of the dying and seriously ill is prosecuted as a crime by the State of Minnesota. What could possibly explain that irrational legal state of affairs? What could it be - other than a cruel, hateful, evil delusion or corruption that "the ends justify the means" for anti-drug warriors with too much angry blood in their eyes to see clearly, or have good judgment.
Medical marijuana - only a statute can provide a safe harbor for compassionate medical use. Without a medical marijuana statute providing for an exception to the general criminal prohibition of possession for medical patients, probably the only legal defense available is the "necessity defense" or the "medical necessity defense." This defense is based upon the idea that a person should not be held criminally liable for their conduct because it was necessary to prevent a greater harm. Sometimes it is referred to as the Lesser of evils defense (like the crime of lying and hiding Anne Frank & family from the Nazi Occupation police in Holland during World War II.) Courts in Minnesota have been hostile to the medical necessity defense in medical marijuana cases so far. See a brief discussion of this at http://www.norml.org/index.cfm?Group_ID=5815 .
The Jury as the conscience of the community. The jury has the power to acquit an accused, even though it appears that the person did do what the criminal statute prohibits. A jury can veto or nullify a law it views as unconscionable. And it can do so in secret. This power of jury lenity has existed for centuries in American law. The juror is an important check and balance against the cultural elites in the legislature, and working in the courts. A jury verdict of "not guilty" can send a powerful message. Similarly, as Abraham Lincoln once said, on a jury, one person is a majority. If a jury cannot reach a unanimous verdict, there is no verdict. Though not as good as an acquittal, a hung jury is better than a "guilty" verdict.
Medical marijuana is just the type of case where a jury, acting as "the conscience of the community," could acquit a criminal defendant - refuse to convict - even in spite of whatever evidence there might be and whatever the laws of Minnesota currently say. A jury has the power. Will they use it wisely and compassionately?
It is possible that in the right case, with the right facts, the medical necessity defense could prevail in a Minnesota medical marijuana case.
If it's too late to exercise a choice, so be it - perhaps a medical necessity defense is the best option - speaking truth to power. But if it's not too late, Gallagher's view is "don't choose to be a martyr, be an activist and help get a medical marijuana statute passed in Minnesota instead."
There is cause for some optimism in Minnesota in this regard. In 2009 state legislators in every political party supported a medical marijuana bill for controlled, compassionate medical use. The governor is currently the problem, but no governor last forever. Minnesota, with your help, could be the next state to adopt a compassionate use law.
Perversely, seriously ill medical marijuana patients in Minnesota being prosecuted for the "crime" of marijuana possession or cultivation may find that other legal defenses will have greater efficacy than the medical necessity defense, or jury nullification. Still, you never know. Every once in a while common sense, reason and compassion do triumph over evil laws and government oppression. In the end it's up to us - to persuade the rest of us - of Reason, Truth, Compassion, Common Sense.
marinol - a prescription drug with a key active ingedient of marijuana
Serving The People of the local Mpls - St PaulTwin Cities metropolitan area in Hennepin County, Ramsey County, Anoka, Sherburne, Wright, Carver, Scott, Dakota, and Washington Counties (greater Minnesota only upon special consideration).