Medical Marijuana in Minnesota
Criminalization of Medical Marijuana – A Short History of Ideology Brutalizing Reason.
In the United States, the idea of making a “drug” or plant a crime is a relatively recent one, rooted in a history of 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 government as a crime to possess, subject to labeling as a criminal and incarceration among other injustices. 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 a herbalist or pharmacist to get it, with or without a medical doctor’s recommendation (“Rx”), for medicines including opiates.
What does this have to do with medical marijuana? The truth is that opiates and 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 still prosecuted as a crime by the State of Minnesota. (Many are excluded from Minnesota’s limited and expensive medical marijuana concentrates program). What could possibly explain that irrational legal state of affairs? What could it be – other than a cruel, hateful delusion that “the ends justify the means” for anti-drug warriors with too much angry blood in their eyes?
Medical marijuana – statutes could provide a safe harbor for compassionate medical use.
Many sick people using medical cannabis either are not qualified to participate in Minnesota’s limited medical marijuana statutory program, or are unable to afford its uninsured high cost. These sick and parents of the sick are left to get it on the street, as Governor Dayton has remarked.
For those people, 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.) It is a cornerstone of the “right to a jury trial” as well as the jury’s right to govern as “the conscience of the community.”
Some courts in Minnesota, however, 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 has the right to do so in secret. This power of jury lenity has existed for centuries in American law. It is the essential core of what a jury trial is, going back all the way to Classical Athens and the Trial of Socrates. The juror is an important check and balance against the cultural elites in the legislature, and in the courts. A jury verdict of “not-guilty” can send a powerful message. Democracy cannot exist without a real jury trial right.
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 unjust 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; instead be an activist and help expand the medical marijuana statute in Minnesota, pass a Medical Necessity Defense statute, and legalize for responsible adult use.”
Seriously ill medical marijuana patients in Minnesota are still 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, Conscience and Liberty.