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Saturday, April 8, 2000

It’s already legal
to use marijuana
for medical needs

Law has to be made workable
and effective so hurting patients
who need marijuana can get it

By Richard S. Miller
Special to the Star-Bulletin

What Hawaii legislators need to know, as they consider the medical marijuana bills now before them, is that medical use of cannabis is already permitted under Hawaii law. The current bills will not establish any radical new legal rights. But they will make existing Hawaii law and legal rights workable for the very sick and debilitated patients who need marijuana to ease their suffering.

And they will be easily administered to ensure that those who are not sick and debilitated will not abuse the law.

Our legislators can therefore extend the important and well-proven health benefits of medical marijuana to qualifying Hawaii citizens without really undermining any settled principle of Hawaii law. They will not be leading a sharp and radical change of direction from the law of the past.

Let me explain.

Hawaii's Penal Code contains a "Choice of Evils" defense. This humane rule allows a person to defend a criminal charge on the basis of "justification" if the alleged criminal act was committed in order to avoid a consequence that would be more harmful than the crime itself.

The law applies to situations where, for example, a bus driver deliberately drives his bus full of children into a parked car, wrecking the car, in order to stop his bus with failed brakes from continuing down a steep hill and crashing with much more serious consequences. It applies equally well when a person supplies or smokes marijuana in order to prevent or alleviate severe or debilitating pain or nausea.

Under the Choice of Evils law persons charged with a marijuana offense have a complete defense to the charge if 1) they reasonably believe that their conduct was necessary to avoid imminent harm either to themselves or others and, 2) the harm to be avoided is greater than the harm that the applicable penal code provision is seeking to prevent.

Furthermore, once a defendant asserts the Choice of Evils defense, the burden falls on the prosecution to disprove the choice of evils defense beyond a reasonable doubt.

That is, the prosecutor bears the burden of proving, beyond a reasonable doubt, that 1) the defendant did not have a reasonable belief that furnishing or using the marijuana was necessary to prevent or avoid his own or another's serious pain, nausea or other debilitating condition or, 2) the harm created by violating the marijuana laws is as great as or greater than the harm to the person who is using the marijuana if he or she doesn't get the marijuana to alleviate his or her debilitating condition.

This law makes it very difficult to convict a patient with a debilitating condition who uses marijuana only to alleviate that condition and not for other purposes.

If this defense already exists under Hawaii law, why do we need to adopt a special statute such as the medical marijuana bills now before the Legislature?

The reason is clear: Currently, under the Choice of Evils defense fellow citizens who would qualify to grow, possess, use or distribute marijuana to alleviate a debilitating condition risk being arrested and tried in a criminal case for promoting a detrimental drug. If they are arrested they have to retain a lawyer to defend themselves and find a physician to testify for them.

Further, they have to go through the pain, pressure and great delay of a trial, and possibly an appeal. The cost, delay and anxiety, especially for persons who are already suffering from seriously debilitating or dangerous conditions, is more than most of them can tolerate.

In other words, while the current legislative policy is to allow the defense of justification in such cases, the effect of current law is to undermine that policy as a practical matter. If the purpose is to alleviate suffering of seriously ill citizens or those with great pain who can benefit from marijuana -- as it very clearly seems to be -- the burdens imposed by the current procedure defeats that purpose.

The beauty of the proposed medical marijuana legislation is that it establishes the right to use the cannabis in advance, before the drug is used and before an arrest is made. Once they receive a recommendation from a physician and once they register in accordance with the law, fellow citizens are unlikely to be prosecuted unless they abuse the privilege or exceed what the law allows.

Allowing them to ease their unbearable pain, debilitating nausea and other terrible conditions without harassment by the police and without fear that they will be treated like law breakers is essential if the legislative policy implicit in the Choice of Evils defense is to be given effect. It is also consistent with the U.S. Institute of Medicine study, funded by federal drug czar Barry McCaffrey, which found that "there are patients with debilitating symptoms for whom smoked marijuana might provide relief."

Furthermore, allowing our fellow citizens to use marijuana to ease terrible pain, to overcome nausea, to prevent blindness, to alleviate AIDS wasting syndrome and to deal with other debilitating conditions is consistent with the views of the vast majority of our fellow citizens, as determined in February by an independent survey of registered voters by QMARK Research.

The survey found that "a solid majority (77 percent) of Hawaii voters are in favor of 'the Hawaii State Legislature passing a law...to allow seriously or terminally ill patients to use marijuana for medical purposes if supported by their medical doctor.' "

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Richard S. Miller is professor of law emeritus
at the University of Hawaii School of Law. The views expressed are
those of the author and do not necessarily represent the views
of the law school or the university.