The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Monday, October 29, 2012

Is there a chance for one common-sense law to be introduced...

Since September 10, when SoDakNORML started its Letters to Legislators campaign, we have heard from six recipients, from an unchallenged incumbent to mere aspirants to a statehouse desk. Once a week for nine weeks we have drafted and mailed a letter addressed to everyone with a chance to be a South Dakota representative or senator this year.

The consistent theme of the letters is that cannabis Prohibition is obviously 1) a failure, 2) expensive, 3) baseless, and 4) wrong.

Four respondents, all hopeful non-incumbents, said they agreed with us. One has a chance of being elected. All asked to remain anonymous until after the election.

One respondent, Rep. Steve Hickey, facebooked us that he would pay attention to the letters. We appreciated the gesture from an incumbent whose opinion of current cannabis policy is unknown to us.

The sixth is former Rapid City Police Chief Craig Tieszen. Senator Tieszen accepts the validity of the evidence for cannabis' therapeutic qualities. He will support proposed legislation that allows patients access to cannabis, if he believes the legislation will not result in consequences that threaten public order. He believes that blanket legalization of cannabis, even if only for adults, constitutes a threat at some level to public order.

His predecessor as Rapid City chief of police, Tom Hennies, was a SD representative for about four terms. Hennies had similar views, but actually introduced legislation to allow "a medical necessity" as a defense to a pot possession charge in court.

The early Letters to Legislators suggested the legislature should do away with the law known by too many people as 22-42-6 (Possession of "Marijuana"). While it's what they should do, it seems unlikely to SoDakNORML that they're gonna do it. Sen. Tieszen said, "It's probably another one of those deals where South Dakota is going to come in 49th or 50th."

As we have drafted the Letters and have thought constantly about what we will say next week, the feeling has come upon us that maybe a reasonable goal for the 2013 legislative session is for the legislature to grant a right a person accused of a crime should already have; the right to argue that he committed the "crime" for which he is being charged in order to prevent a greater harm.

Here's a fact of South Dakota law: a person accused of almost any crime may propose the argument in his defense that he committed the crime in order to prevent a greater harm. It is accepted common law that a person may use a boat without permission of the owner to save a drowning person, even oneself.

Except if one is using cannabis to alleviate one's own misery caused by an adverse medical condition. That is so plainly wrong that even the most cynical of legislators can only rely on one argument: Judges and juries are too dumb to be allowed to listen to evidence that cannabis helps relieve misery in many cases of physical adversity.

We think we can win that argument.


Ken Santema said...

I know jury nullification has been brought as a possible amendment in SD in the past, and failed. Is that another possible route to go? Is it possible people would be more open to the jury nullification now?

Bob Newland said...

If the legislature were to amend state law to allow "a medical necessity" as a defense to possession charges, then a verdict wouldn't fall in the realm of "jury nullification." It would be more like "self-defense," which, when applied in a murder or assault case, is not referred to as "nullification."

Ken Santema said...

I understand the difference. I was just wondering if jury nullification would be an easier route to go than medical necessity as a defense. Jury nullification would also potentially be a tool that could be used in more drug defense cases. I like the idea of medical necessity. But I don't know how useful it would actually be if doctors were not willing to put their practice on the line to support medical necessity court cases.

Bob Newland said...

The words "jury nullification" are, for some reason, frightening to most folks and especially to legislators.

That's testament to their ignorance of history and common law.

However, phrased a different way, on a narrow topic, the same principle might carry sway in an argument. I think that in a public opinion contest, we can gain considerable support for allowing cannabis users to argue a medical necessity, and to let the evidence tell the story.

What can our opponents say to maintain their positions?

Bob Newland said...

I don't think doctors will fear loss of license or business if they support a palliative they have seen work.

larry kurtz said...

See this, Bob? Deadwood first?

Ken Santema said...

I'm looking at it from a pure resources perspective. With a victory that will only assist some medical marijuana users in a narrow scope actually help in the long run? Would it be worth the money and time that would have to be put into a small victory. Or would it give the opposition further ammunition when trying to fight bigger battles. Arguments such as "look we gave the medical marijuana users a break in court and nothing changed, it shows any more steps in this direction is needless".

I'm not saying your idea is bad. In fact it might be the best way to proceed. I'm just the type that plays devils advocate, even when I agree with ideas.

I'm actually going to be in Denver for the next week(for something unrelated). I'm actually interested in see the Pro and Con ads that I'm sure are everywhere in Colorado right now.

Ken Santema said...

From the article posted by larry: "Opponents don't want Colorado to be the first to flout federal drug laws". I actually think that is a pro (but then I'm not a big fan of the federal government in its current form).

Bob Newland said...

Damned if I know, either, Ken. I am pretty sure that a proposal to allow either the defense or the prosecution to inform jurors that they have the right to vote their consciences as to "guilt" or "innocence" would fail.

On the other hand, a proposal to allow people accused of possession of cannabis to argue that they use it to alleviate their suffering has a chance to pass.

After that, we'd just have to see whether and how it's used. I really can't see a downside to it.

larry kurtz said...

Police repression rampant in failed red state!

larry kurtz said...

Cannabis prohibition hanging by a thread

taco said...

Good article, Kurtz.