Medical Marijuana in Minnesota
Is medical marijuana legal in Minnesota?
Sometimes. Medical marijuana is now legal in Minnesota within the limits of Minnesota Statutes as administered by the Minnesota Department of Health. Otherwise, marijuana is still generally a crime, even if used for medical treatment. The information here may help you avoid a problem; or solve one.
Criminalization of Medical Marijuana – Ideology Brutalizing Reason
In the United States, the idea of making a “drug” or plant a crime is relatively recent. The idea was born of racism.
Alcohol – a lethal addictive drug – is now not a crime to possess.
The government generally defines marijuana – a non-lethal, non-addictive drug – as a crime to possess. Making it a crime subjects a person 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.
And yet Minnesota still prosecutes the dying and seriously ill for marijuana possession and growing. Minnesota’s limited and expensive medical marijuana concentrates program excludes many.
What could explain that irrational state of affairs? What could it be – other than a cruel, hateful delusion that “the ends justify the means” for anti-drug warriors with 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. Even if they can qualify, they are often unable to afford its uninsured, high cost.
The sick and parents of the sick “can get it on the street,” as Governor Dayton famously remarked. Illegal marijuana is now more affordable for disabled people in Minnesota.
The medical necessity defense
For those people, probably the only legal defense available is the “necessity defense“ or the “medical necessity defense.” This defense is that a person should not be held criminally responsible for their conduct if it was necessary to prevent a greater harm.
Sometimes we call it the the Lesser of evils defense. Consider the crime of lying to police and hiding Anne Frank & family from the Nazi Occupation in Holland during World War II.
Direct democracy – the jury governs
The necessity defense 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.
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.
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. The jury can do this in spite of whatever evidence there might be and whatever the unjust laws of Minnesota now 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.
Defending past acts vs preparing the future
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.”
Emerging issues: Minnesota Department of Corrections vs. Minnesota Department of Health
Recently, the Minnesota Department of Corrections (DOC) issued a troubling, probably illegal policy. The new policy is that it will violate the rights of people on supervised release from prison. Minnesota DOC policy is to punish lawfully enrolled medical marijuana patients on supervised release. Their excuse? “Federal law.”
First, under what legal authority can an administrative department of the state’s executive branch, defy and violate Minnesota law? It must follow Minnesota law, as an agent of the state of Minnesota. They lack standing to assert federal law. The federal government could assert it. But in many ways, including federal legislation, the federal government has declared its choice to avoid prosecuting people in compliance with state laws on marijuana.
And how can one state agency directly contradict another? Why does Minnesota Department of Corrections think it has more legal authority the Minnesota Department of Health?
This is an abuse of power calling for correction – either legislative or judicial.
The government still prosecutes disabled and ill people for marijuana crimes
Seriously ill medical marijuana patients in Minnesota are still being prosecuted for the “crime” of marijuana possession or cultivation.
The only current safe-harbor within the Minnesota Department of Health’s Minnesota Medical Marijuana program. If you can qualify, and can afford it, that’s the best way to go. But the program is so narrowly restrictive, most sick people who use marijuana medicinally are left out in the cold.
That means prosecutors can still criminally charge marijuana crimes, despite patients’ efforts to stay alive and healthy. Should that happen, Gallagher can help. Gallagher has represented many people charged with crimes related to medical marijuana successfully.
For patient charged with a marijuana crime, we may find other legal defenses more effective than the medical necessity defense, or jury nullification. Those are defenses not usually available in other types of criminal defense cases.
Common sense, reason and compassion can 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.
Question? Call Medical Marijuana Defense Attorney Thomas Gallagher at 612 33-1500