Cannabis News Students for Sensible Drug Policy
  Bill Would Allow Judge To Consider Illness Defense
Posted by CN Staff on January 29, 2008 at 09:43:12 PT
By James Carlson, The Capital-Journal 
Source: Topeka Capital-Journal 

medical Kansas -- Susan Hughes remembers the humiliation of her arrest for marijuana possession 12 years ago. And she remembers the anger when a judge couldn't consider her multiple sclerosis when deciding whether to allow charges against her.

Under a bill introduced Monday in a Senate committee, the El Dorado resident's situation could have been different.

The proposed bill would allow judges to consider medical conditions as a defense against prosecution of marijuana possession. Under the measure, those with a debilitating illness arrested for the drug's possession could present in court a doctor's written certification that the drug would offer therapeutic benefits.

"I feel like my doctor should make that decision, not the sheriff," Hughes said.

The mere introduction of the bill, usually a formality, was decried by one Topeka legislator.

Sen. Vicki Schmidt, R-Topeka, opposed the bill's entry, saying, "It costs a lot of money to introduce a bill."

Schmidt, a pharmacist, said it is difficult to ensure the same amount of marijuana is distributed to each patient. She added that the bill violates federal law.

The bill doesn't legalize or decriminalize the drug but rather allows people to make a defense of their crime based on a debilitating illness. The judge could still allow charges to be filed, throw out the charges or otherwise alter the complaint.

"This is simply an issue of compassion," said Laura Green, director of the Kansas Compassionate Care Coalition that helped draft the measure. "No one wants to arrest people who are sick."

The bill would define a debilitating illness as any number of conditions including cancer, glaucoma, HIV, AIDS and Alzheimer's disease.

Hughes was diagnosed with multiple sclerosis when she was 27. Twelve years ago, she began using marijuana to ease the painful symptoms.

She would often go out to the garage and sit in her car to smoke so as not to be around her kids. She must have left some in the car because when she later got in a wreck, officers found a small amount.

"It was totally humiliating," she said. "I had a well-paying job and respect from others, and that was lost."

She said her co-workers at the U.S. Department of Agriculture office in town treated her "like a big criminal." She told the judge about how the drug helps alleviate much of the pain associated with her illness. Under the law, the judge wasn't allowed to take that into consideration.

Hughes said she hasn't used marijuana since her arrest, but she still wishes she had the option. Pain shoots through her legs and back every day.

"I stagger around like I'm drunk," she said.

An identical bill in 1995 passed the Kansas House 89-32 but was stripped in a later version and never became law.

Sen. Phil Journey, R-Haysville, was skeptical of the current proposal.

"To say that it's a defense based on a doctor's letter, I don't think that's going to fly," he said.

Hughes said she expected to testify on behalf of the bill when it receives a hearing in a few weeks.

Note: Reason for marijuana use doesn't matter under current law.

Complete Title: Bill Would Allow Judge To Consider Illness Defense in Pot Arrests

Source: Topeka Capital-Journal (KS)
Author: James Carlson, The Capital-Journal
Published: Tuesday, January 29, 2008
Copyright: 2008 The Topeka Capital-Journal
Website: http://cjonline.com/
Contact: letters@cjonline.com

Related Article & Web Site:

KSCCC
http://www.ksccc.org/

Bill Seeks Medical Defense of Marijuana
http://cannabisnews.com/news/thread23636.shtml

CannabisNews Medical Marijuana Archives
http://cannabisnews.com/news/list/medical.shtml


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Comment #9 posted by runruff on January 30, 2008 at 10:06:06 PT:

Ooh, my spelling, lol!
"Prosecutors"-ok?

[ Post Comment ]
 
Comment #8 posted by runruff on January 30, 2008 at 09:58:36 PT:

"Put not your faith in judges."
Judges are elevated lawyers, prosicutors mostly. The most evil self serving profession in the world. Everyone should get to know a prosicutor. Not the public face they use to fool the public. The real heart and soul of these beast that lies just below the surface.

"Put not your faith in judges."-indeed!

[ Post Comment ]

 
Comment #7 posted by freewillks on January 30, 2008 at 07:48:33 PT
politico's know best!
You can kill someone and claim tempory insanity, you can be dieing and be put in prison for feeling better. FUBAR!

[ Post Comment ]
 
Comment #6 posted by charmed quark on January 30, 2008 at 05:48:27 PT
Necessity Defense
Sadly, the Supreme Court also ruled against the use of a "necessity defense" . In 2001 they rejected the Oakland Buyer's Cooperative attempt to use that defense, saying that the Controlled Substance Act says marijuana has no medical use -it's on Schedule 1. If something has no medical use, you can't use a medical necessity defense.

Put not your faith in judges.

[ Post Comment ]

 
Comment #5 posted by LaGuardia on January 30, 2008 at 05:35:01 PT
Necessity Defense
I do not know the particulars about Kansas law, but "necessity" (i.e. breaking the law in order to avert a greater harm, so long as you don't kill anyone) is an available defense almost all parts of the United States. Unfortunately, some states have held that the necessity defense does not apply to medical marijuana, even though there is no really good argument for why it does not.

This bill would just make it clear that the defense applies to medical marijuana in Kansas.

The medical necessity defense is how Robert Randall avoided jail and became an official medical marijuana patient, and eventually led to him, Irv Rosenfeld, and others getting medical marijuana from the Feds.

Here is an excerpt from Boston College Law Review article written in 1999 about medical marijuana and the necessity defense; the link for the article is below:

"The first successful articulation of the medical necessity defense in the history of the common law, and indeed, the first case to extend the necessity defense to the crimes of possession or cultivation of marijuana, was United States v. Randall.109 In 1976, in Randall, the D.C. Superior Court accepted the defendant’s medical necessity defense and consequently held that the defendant was “not guilty” of the crime of possession of marijuana.110 The defendant, Robert Randall, suffered from a severe case of glaucoma, which led to an almost total loss of vision.111 Randall began smoking marijuana cigarettes after conventional drugs proved ineffective in treating his failing eyesight, and on August 27, 1975, he was arrested and charged with possession [*PG716]of marijuana.112 In response to Randall’s assertion of the medical necessity defense, the court set forth the requisite elements of the defense: (1) that the defendant did not intentionally bring about the circumstances that precipitated the unlawful act; (2) that the defendant could not accomplish the same objective using a less offensive alternative; and (3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.113 In applying the medical necessity defense, the court balanced the defendant’s interest in health against the state’s interest in enforcing drug laws that protect the public.114 The court concluded that the defendant’s right to preserve his sight outweighed the state’s interest in outlawing the drug.115 As a result, the court held that the defendant was not guilty of marijuana possession.116

In addition to the elements enunciated in Randall, the common law generally has recognized that the defense of necessity is available only in situations where the legislature has not precluded the defense by a clear and deliberate choice regarding the values at issue.  In other words, the defense is available where the legislature has not itself, in a criminal statute, balanced the competing harms to the state and to the individual and made a determination regarding the values of each.117 If the legislature has done so, its decision governs.118 If, however, the legislature is silent on the matter, the question of the necessity defense is open and courts can properly weigh the merits of the competing interests.119

Since Randall, states have varied greatly in their acceptance of a medical necessity defense in cases involving violations of marijuana [*PG717]law.120 In 1991, in Jenks v. State, the Court of Appeals for the District of Florida held that a state statute classifying marijuana as a Schedule I substance did not preclude the use of the medical necessity defense, and furthermore, that the defendants had established such a defense.121 The appellant, Kenneth Jenks, a hemophiliac, contracted AIDS through a blood transfusion and unknowingly passed it on to his wife Barbara.122 As a result of both the disease and the medication administered, the Jenks experienced severe nausea and suffered significant weight loss.123 The Jenks began using marijuana that they obtained on their own and found that they were able to retain their AIDS medication, eat, gain weight and maintain their health.124 After being unable to procure a prescription for marijuana, the Jenks decided to grow two marijuana plants of their own.125 They were subsequently arrested for cultivation of marijuana and possession of paraphernalia.126 The court denied the State’s claim that the Florida legislature had foreclosed the necessity defense by scheduling marijuana as a substance with no valid medical use, and stated that a statute should not be interpreted as abrogating the common law unless it unequivocally calls for such treatment.127 Finding that the Jenks met their burden of proving the elements of a medical necessity defense as set forth in Randall, the court held that the trial judge erred in rejecting the defense and convicting the Jenks as charged.128

Notwithstanding the decisions of state courts in other jurisdictions that are consistent with the holdings in Randall and Jenks, some state courts have been unwilling to accept the medical necessity defense.129 In 1993, in Commonwealth v. Hutchins, the Massachusetts Su[*PG718]preme Judicial Court rejected the medical necessity defense.130 The defendant, Joseph Hutchins, was a forty-eight year old Navy veteran who suffered from scleroderma and Raynaud’s phenomenon.131 In addition to causing other physical ailments, these diseases had an especially severe effect on Hutchins’ gastrointestinal tract.132 Hutchins found that smoking marijuana alleviated many of his symptoms including: nausea; loss of appetite; difficulty in eating, drinking or swallowing; loss of mobility of the esophagus; spasticity; hypertension; and anxiety.133 Unable to secure a legal supply of marijuana, Hutchins was eventually arrested for cultivating and possessing two pounds of marijuana with the intent to distribute.134 The court determined that a threshold question in such cases is whether the harm that would have resulted from compliance with the law significantly outweighs the harm that reasonably could result from the court’s acceptance of necessity as an excuse.135 Only when the circumstances favor excusing the defendant, will the court then inquire into the elements of the defense.136 The court held that the harm to the defendant did not [*PG719]outweigh the potential harm to the public as a result of the negative impact on drug enforcement efforts, and thus, there was no error in denying the right to present the medical necessity defense.137

In a dissenting opinion, Chief Justice Liacos concluded that Hutchins had, in fact, met his burden of production on the defense of necessity, and thus, the jury should have determined whether his actions were justified.138 Essentially arguing against the majority’s threshold question requirement, Chief Justice Liacos accused the majority of “speculative fact finding.”139 While recognizing the importance to the public of enforcing drug laws, Liacos did not believe that the interest would be harmed significantly by permitting a jury to consider whether the defendant cultivated and used marijuana in order to alleviate painful symptoms of an illness.140 Furthermore, Judge Liacos stated that the majority did not adequately consider the values supporting the common law defense of necessity; namely, “that under very limited circumstances, the value protected by the law is, as a matter of public policy, eclipsed by a superceding value which makes it inappropriate to apply the usual criminal rule.”141

Like Hutchins, other state courts have rejected the medical necessity defense, often based on the belief that the state legislature had already spoken on the appropriateness of the defense.142 State courts generally have found evidence of such legislative intent not by reference to state scheduling laws, which are usually analogous to federal law, but rather by reference to the legislature’s explicit exclusion of the defense in the text of a statute or the legislature’s establishment of a research program providing access to marijuana for certain patients.143

[*PG720] Contrary to state courts’ wide-ranging treatment of the medical necessity defense in connection with the use of marijuana, federal courts’ consideration of the defense in the marijuana context was, until recently, limited to a single case.144 In 1990, in United States v. Burton, the United States Court of Appeals for the Sixth Circuit recognized the medical necessity defense as being applicable in the context of a federal prosecution for the manufacturing and use of marijuana, but held that the defendant failed to establish one element of the defense.145 Defendant, James Burton, suffered from glaucoma and claimed that he grew and used marijuana to relieve the symptoms from his illness.146 He was charged with three counts of unlawfully manufacturing and possessing marijuana and one lesser charge of simple possession.147 The trial court permitted Burton to present a medical necessity defense and the jury found him not guilty on all but the charge of simple possession.148 Burton appealed the jury’s verdict, claiming that it was inconsistent with the evidence, and thus, unreasonable.149 The court, relying on the Supreme Court’s decision in Bailey, acknowledged that the medical necessity defense was available in cases involving the medical use of marijuana by seriously ill individuals.150 Like some of its state court counterparts, however, the Sixth Circuit opined that the IND Program recently established by the federal government mitigated against a finding that Burton had no reasonable, legal alternative to the illegal manufacturing and use of marijuana.151 Thus, in holding that the jury’s verdict was not unreasonable, the court stated that the medical necessity defense was available under federal law but was not established by the defendant in this particular case.152 Eight years passed before a federal appeals court, this time in California, once again had the opportunity to wrangle with the question of whether the medical necessity defense was valid under federal law.153"

[ Post Comment ]
 
Comment #4 posted by FoM on January 30, 2008 at 05:28:29 PT
Bush Talks of Past Addiction
By Michael Abramowitz, Washington Post Staff Writer

Wednesday, January 30, 2008; Page A04

BALTIMORE, Jan. 29 -- President Bush plopped himself into a chair between two former prisoners, Thomas Boyd and Adolphus Moseley, and asked to hear how their lives had changed. But first, he wanted them to know something about him: "I understand addiction," he said, "and I understand how a changed heart can help you deal with addiction."

Complete Article: http://www.washingtonpost.com/wp-dyn/content/article/2008/01/29/AR2008012902996.html

[ Post Comment ]

 
Comment #3 posted by fight_4_freedom on January 29, 2008 at 21:37:32 PT:

Little snip from the Orlando Sentinel
Some interesting thoughts by Indiana Pacers center David Harrison, who served a five-game suspension for violating the league's drug policy. Harrison had three positive tests for marijuana. "There's the politically correct thing to say. There's the basketball player thing to say. And there's what I really want to say," Harrison told reporters who cover the Pacers. "I don't understand how they have a right to look into our lives on any level besides performance-enhancing drugs." Any change in the NBA's policy would have to be addressed when the league and National Basketball Players Association hold collective bargaining talks.



[ Post Comment ]

 
Comment #2 posted by fight_4_freedom on January 29, 2008 at 17:05:43 PT:

Another Letter Writing Campaign
All you have to do is fill in your name, address, ect. It takes only seconds to do. Please send your letters. Or in my case send your e-mails and faxes :) (just in case they didn't see the e-mail)

http://tinyurl.com/28nmb9

From SafeAccessNow.org

Contact the Presidential Candidates Who Support Medical Marijuana

Urge Them to Take Their Support Further and Pledge to Issue an Executive Order

Challenge the presidential candidates who have publicly supported medical marijuana to take their commitment to safe access one step further by pledging to end federal raids if elected. We are calling on these candidates to commit to issue an Executive Order that would end federal interference in medical marijuana states. Scroll down to send a fax and an e-mail to the candidates right away!

We are calling on the candidates who have publicly denounced the DEA raids and have supported medical marijuana, Senator Clinton, Senator Obama, Senator Edwards, and Congressman Paul, to pledge to issue an Executive Order if elected President that says:

“No funds made available to the Department of Justice shall be used to prevent States from implementing adopted laws that authorize the use, distribution, possession, or cultivation of medical marijuana. In particular, no funds shall be used to investigate, seize, arrest or prosecute in association with the distribution of medical marijuana, unless such distribution has been found by adjudication to violate state or local law.”

Fill out the form below to challenge the candidates to stand up for medical marijuana patients and to protect taxpayers’ dollars. It is time for the candidates to show that their campaigns are not about rhetoric, but about protecting the rights of Americans.



[ Post Comment ]

 
Comment #1 posted by dongenero on January 29, 2008 at 12:48:53 PT
arrogant self-involved know it alls
"To say that it's a defense based on a doctor's letter, I don't think that's going to fly," he said.

That's right folks, don't let those silly doctors make your health care recommendations. Let Senator Phil Journey recommend your course of treatment. He's the smartest person he knows.

What is it about all these Senators and Law Enforcement officials that leads them to believe anyone cares what their professional opinions are on medical treatment protocols?



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