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Bill Would Permit "Medical Necessity" Defense in Some Marijuana Cases

April 10th, 2003
By Todd Zwillich
Reuters Health

U.S. lawmakers have launched an effort that would allow defendants from states with legalized medical marijuana to use "medical necessity" as a defense against federal drug charges.

A bill introduced in the U.S. House Thursday and backed by pro-medical marijuana groups would apply to California and seven other states where medical marijuana is legal. The measure gives defendants accused of growing or distributing marijuana in violation of federal drug laws the right to inform juries that they were acting legally in their state.

Supporters touted the proposal as a way to protect the democratic process in states where voters or legislators approve measures backing medical marijuana.

"This is about due process. It's not about pot," said Rep. Sam Farr, D-Calif., who co-authored the measure with Rep. Dana Rohrbacher, R-Calif.

The bill was motivated by the conviction of Ed Rosenthal, an Oakland-based marijuana activist who was found guilty in January of violating federal drug laws.

Rosenthal was licensed by Oakland to grow and distribute cannabis under a California medical marijuana statute, but the judge in his case prevented Rosenthal's attorney from informing the jury that the action was legal in that state. Jurors were only informed that Rosenthal grew marijuana and not that he had been licensed to do so.

The U.S. Supreme Court ruled in 2001 that "medical necessity" cannot be used as a valid defense against federal marijuana charges. Thursday's proposal would change a key part of the federal Controlled Substances Act to allow state laws to become a factor in federal drug cases.

Seven other states -- Alaska, Hawaii, Washington, Oregon, Nevada, Colorado, and Maine -- have laws similar to California's. Maryland has a proposed medical marijuana law pending. Voters in the District of Columbia also approved a medical marijuana referendum several years ago, though the Congress has prevented local officials from implementing the measure.

Federal anti-drug officials remain vehemently opposed to efforts to legalize medical marijuana in the states. John Walters, the director of the White House Office of National Drug Control Policy (ONDCP), has campaigned heavily against legalization referenda in several states.

Dr. Andrea Barthwell, ONDCP's deputy director for demand reduction, said that the bill threatens to undermine federal drug laws that are in place to protect public health, even if voters in some states have spoken differently.

"We recognize that federal law trumps state law in this area," she said in an interview.

The bill's chances of passing in the Republican-controlled House are likely to hinge on support from GOP members from the handful of states where medical marijuana is allowed.

Some Republicans have backed the bill on the grounds that it helps prevent the federal government from intruding on state laws.

But it remained unclear Thursday how many GOP members would support the bill. Rep. David Dryer, R-Calif., said in an interview that he backs states' rights "in general," but that he has not yet taken a position on the bill.

Rep. Mary Bono, another California Republican, said that she has yet to see the bill's details. "I think that if the state has spoken, then I'd want to support the state on that," she said.

© 2003 Reuters Ltd