No one can speak credibly of his love for liberty and justice if he does not grant an accused person the right to present his case in court.
There is an adage in common law that it is not a crime to use a boat not yours, without permission, to save a drowning person. That is true even when the drowning person is yourself. Only the craziest of prosecutors would attempt to prosecute a hunter, lost in a blizzard, who jimmies a cabin door to save himself from freezing to death.
Obviously, I believe the same principle applies to people who use a medicine that works, even if that medicine is arbitrarily illegal. Judges and juries should be able to look at the evidence, if an accused person chooses to present it, and then decide whether the accused person falls into the category already established in So. Dak. law that “it is permissible to break the law if in so doing one prevents a greater harm.”
Next Tuesday, Nov. 30, I will join a group of conservative Republicans, probably including several legislators, in a discussion about the Medical Defense Act. If you’d like to join the discussion (or just be there) you can come. It’s at the Eagles Lodge, 1410 E Centre St, Rapid City. It's about two blocks east of Cambell St on Centre St.
The discussion will start at noon. I’d like to have a patient who understands the therapeutic value of cannabis there also. The issue, however, is not whether or not cannabis is therapeutically effective. The issue is that a person accused of a crime for which the punishment is a lifelong stigma as well as jail and fines should have the right to argue that he was preventing a greater harm.
The goal is to demonstrate the essential fairness of allowing a person to make an argument defending his use of a beneficial herb to ease his suffering. It is possible that argument will resonate with a group that prides itself on its sense of fairness. It is possible that a TEA Party-leaning legislator will speak on behalf of the bill.
This is the bill we're calling the Medical Defense Act. It is likely that, if it gets introduced, it will have somewhat different wording.
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.