Marijuana Medical Necessity: Why Minnesota Needs a Law

Minnesota needs to adopt a new statute affirming your right to present a medical necessity defense to a marijuana criminal-charge.  Why?

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 its efficacy. Medical science shows it helps relieve symptoms as well as cure diseases — from the bothersome all the way to cancer.

Marijuana had never been a crime.  But beginning in the 1930s in the United States, the alcohol Prohibition was disintegrating. But even then the government developed a new experiment in Prohibition as a replacement — the marijuana Prohibition.  

People widely used marijuana as medicine at the time. And its medicinal use persisted for decades. But increasing criminalization policies eventually drove it underground.  Medical use continued but was made criminal.

Long History of the Medical Necessity defense

Necessity has been a recognized legal defense to what otherwise would be a crime, since ancient times.  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 defenseAnd sometimes we call it the lesser-of-two-evils defense.  It is often a justification type defense.

If the 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.

Should Minnesota recognize the medical necessity defense?
Should Minnesota recognize the medical necessity defense?

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 provides 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.

A super-majority of people in the United States today, according to polls, agree that medical use of marijuana should not be a crime.

As a result it is likely that most jurors 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 may do as it as it will.

Minnesota’s Hansen Case

So why have Minnesota appellate courts failed to support your right to present your medical necessity defense?

To find out, you can read the Minnesota Court of Appeals case from 1991, State v. Hanson.  Though every court case is fact specific to a great extent, 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.”

Currently Accepted Medical Use

The first point, that marijuana’s Minnesota classification as “a Schedule I substance” implies that it has “no currently accepted medical use in the United States,” if ever true; is certainly not true today.  Though Minnesota still classifies marijuana as “Schedule I;” the majority of the U.S. population now lives in states with legal medical marijuana programs. And marijuana is now currently accepted as having medical use — including by the United States Surgeon General.  And since the Hanson case, even Minnesota has joined the majority with legal, state-sanctioned, medical marijuana. So the underpinnings of the Hanson court’s gutting of the common law medical necessity defense, collapse.

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 said that.  Not particularly persuasive here, the argument is of the classic rhetorical form — expressio unius est exclusio alterius, a Latin phase meaning “the expression of one thing is the exclusion of the other.” This is a stretch. After all, the Minnesota legislature did not specifically abrogate the common law’s medical necessity defense.

And perhaps ironically, the THC Therapeutic Research Act, Minnesota Statutes Section 152.21, subd. 6, removes 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 … .” 

So, the statute the court cites to justify denial of a jury trial, undermines the Court’s “Schedule 1 – no medical use” argument.  That very statute removes marijuana from Schedule 1 for its purposes.

The Hanson case was from 1991.  Much has changed since then, politically, legally, and in the medical research community, has it not?  So would a modern Minnesota appellate court right this 1991 wrong?  In 2014, it didn’t.

Minnesota’s 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 from the jury his:

  • medical condition,
  • medical recommendation for marijuana, and
  • California medical marijuana card.

It seems reasonable to conclude then, that the Minnesota courts are unlikely to remedy this injustice. And they may be slow to restore our rights to a jury trial, and to present a complete defense — at least not soon.

The Legislature Can Right This Wrong

That is why we need the Minnesota legislature to restore some Liberty and Justice in Minnesota, by passing a Bill. We need a statute guaranteeing your right and the jury’s right to the truth; that medical marijuana is a lesser evil (if it is an evil at all), than violating the criminal law prohibiting marijuana.

The Bill currently in the Minnesota legislature would restore the medical necessity defense to medical marijuana patients charged with a marijuana crime.

It would guarantee that the accused could use this as an affirmative defense. 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.

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This would help restore the right to a jury trial to an extent as well.  The jurors have the right to hear the truth before deliberating their verdict.

Contact your Minnesota House of Representatives member, your Minnesota State Senator, and the Governor to urge support of the medical necessity Bill, HF 542.

Thomas Gallagher is a Minnesota Marijuana Lawyer with a criminal defense practice based in Minneapolis.