A modest proposal...

How can law that forces cops and courts to punish people for attempting to alleviate their own suffering be anything except bad law? It is surely bad law. It is surely bad for those who must enforce it. Of course, it’s even worse for those who are unjustly punished for its violation.

We proposed Measure 13, which was soundly defeated. It appears that those who voted against it did so largely because they believed it was tantamount to legalization of cannabis.

While I think that legalization, regulation and taxation of cannabis -- on a model roughly like we treat dangerous substances like alcohol, tobacco, aspirin and opiates -- is preferable to the model currently endorsed by So. Dak. law wherein ANYONE of ANY AGE can obtain cannabis ANYTIME, I realize that thought is moot for the time being.

However, I think that there should be an exclusion from punishment for folks who can demonstrate that they have a medical condition for which cannabis (or “marijuana” as it is crudely known in law; calling cannabis “marijuana” is somewhat akin to calling a woman a “ho”) is a safer and more effective therapy than the “approved” medicines.

I think there is a way to achieve that at least for some. Justice for a few is better than justice for none.

If So. Dak. allowed people accused of possession of cannabis to advance a defense to their prosecution based on evidence that their cannabis use is essential to their therapy, then at least some deserving people would have a fighting chance of avoiding punishment for attempting to save or at least improve the quality of their own lives.

I am sure that you would not approve of convicting a person for burglary if he entered a cabin not his for the purpose of avoiding freezing to death. In fact, were So. Dak. law so inflexible as to not already protect a person in that circumstance, I think you’d not hesitate to suggest to your colleagues in the legislature that an affirmative defense for such an action would be in order.

Here is a proposal submitted in the 2001 legislative session by Rep. Hennies. It is identical to a proposal submitted in 2009 by Rep. Lange.

FOR AN ACT ENTITLED, An Act to allow a medical necessity to be used as a defense in certain cases involving the possession or use of marijuana.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. Any person arrested or prosecuted for the possession or use of marijuana may submit as a defense, a medical necessity, if:
(1) The person has a medical condition recognized by a competent medical authority as a condition for which marijuana is a palliative; or
(2) The person has a recommendation by a competent medical authority for the use of marijuana for a medical condition.

Section 2. A medical necessity defense pursuant to this Act may, at the discretion of the accused, include:
(1) Expert testimony;
(2) A recommendation by a competent medical authority; and
(3) Testimony by other persons with a similar medical condition.

This is, I think, at least a good starting place from which to draft a proposal to submit during the 2011 session. The only hitch I see in it is defining the phrase “competent medical authority.” There is probably already applicable So. Dak. case law pertaining to both “expert testimony” and “competent medical authority.”

This post was prompted by an ongoing injustice. Here is the Journal story regarding that injustice.

Marijuana and hashish found in Washington man’s car

Bond is set at $70,000 for a Washington man who was charged with carrying marijuana and hashish in his vehicle.

Roy A. Waterhouse, 28, of Lakewood, Wash., was arrested Friday by a South Dakota Highway Patrol officer during a routine traffic stop east of Rapid City on Interstate 90.

A search of Waterhouse’s vehicle produced 5 pounds of marijuana and 2-1/5 ounces of hashish, according to police.

Waterhouse is charged with three Class 4 felonies and a Class 3 felony for possession and distribution of the drugs. If convicted, he faces a potential combined sentence of up to 45 years in prison.


As often happens, I got an email from Waterhouse’s sister, who found me through NORML’s network. The entire text follows.

==============================
Hello,

My name is Joslynn, I am from Michigan and I am writing in consideration for my brother, Roy Waterhouse. Roy has lived in Washington for several years as a mason laborer.

He is a medical marijuana patient and has suffered from chronic nausea and chronic pain throughout his entire life due to a rare condition which involved a missing aeorta valve and resulting in open-heart surgery shortly after birth. Roy had been unemployed in Washington for the past six months and set up a job with a previous employer doing landscaping back home, here in Michigan.

He was carrying enough medicine on him to cover his medical needs until his Michigan certification cleared. This process takes anywhere from 9-12 months after gaining residency.

On Fri. Nov. 12th, Roy was pulled over on I-90 for going three over, searched by a dog and arrested with 5 lb of marijuana and 2 oz of hash. As I stated, he was moving home, so everything he owned was in his vehicle, he had two hundred dollars on him that my other brother loaned him to get here, all of his clothes, computer, personal items, everything is in civil asset forfeiture.

On Sat., the sheriffs department told me it was 2 felony counts and he had 5 lbs. and now it's 10 lbs and 4 felony counts. And he was supposed to have court on the 29th they told me yesterday, and today they tell me he isn't going to court now but straight to being indicted by the States attorney. His public defender in SD is out of town for the entire week next week and cannot speak with me today.

Roy is in the middle of no where with no family and no help. To be quite honest, we have no money in my family, I've tried and tried and haven't slept for a week and no one seems to be able to help me other than explaining that it just is what it is and that's how the system works and so on and so forth. All that i can come up with is about a $1000 but I just don't know who to give that to that's going to get Roy out. He is in pain, and I've resourced every avenue i can think of and there doesn't seem to be a single lawyer in South Dakota that deals with these types of cases. Or I just can't seem to find one anyway.

I have all of his medical paperwork, as well as documentation of his work records, statements and receipts for the items seized, character reference letters from his future employer in MI, doctors' letters, I just don't know who to contact, if there is someone that could even help me at all. The criminal defense attorneys I've spoken with we cannot afford. Most importantly, we just want Roy back. He has never been in trouble, never had any prior convictions. This is because he is a good hard-working person with numerous medical afflictions that doesn't deserve to be where he is at.

He was moving home to also help me with moving our 89-yr old grandmother from upper Michigan into our home and get her settled. Out of the 3 children my granny has, and the ten grandchildren, Roy was the only one to offer his help. That's what kind of person he is. I don't know if you can help me, but any direction or contact information, anything at all would mean all of the difference in the world for us and would be deeply appreciated. Thank you for your time and any help you might be able to provide.

Most Sincerely,

Joslynn Lastname
Somewhere, MI
==============================

Yeah, yeah. I know this is the guy’s sister, and I know 5# of weed and 2oz. of hash probably seems excessive to some. It’s not excessive, but that’s not the point. This 28-year-old will spend three or four months in jail before his case comes to trial, or until a plea bargain is totally worked out. The bargain will probably mean five years of probation and perhaps a $5k fine. That would be in line with what I’ve seen several times. Assuming his record is clean, he likely will get incarceration only in the amount of time served or close to it.

Under current law, the right to present medical cannabis evidence in court will only be extended to the pre-sentence investigation, after the “guilt” or “innocence” is established. The judge might take it into consideration or might not, depending on his/her mood. In any case, Roy will have a felony on his record.

If his right to present evidence that cannabis allows him to function a little closer to “normal” were established in So. Dak. law, then he might at least get out of this without a felony. Over time, experience with cases of this sort could perhaps lead to something resembling justice.