US v. Randall (D.C. Super. Ct. 1976)

United State v. Randall, 104 Wash. D.L. Rep. 2249 (Dec. 28, 1976)

United State v. Randall, Crim. No. 65923-75 (D.C. Super. Ct., Nov. 24, 1976), reprinted in 104 DAILY WASH. L. REPTR 2249, 2252 (1976)

MEDICAL NECESSITY IS DEFENSE
TO MARIJUANA POSSESSION CHARGE

Defendant’s interest in preserving sight out weighs government’s interests.

A glaucoma victim who claims that smoking marijuana is the only way he can retain what is left of his vision can assert this claim of medical necessity against marijuana charges, the District of Columbia Superior Court holds.  From cases and scholarly writings, the court concludes that the necessity defense exists and it is subject to three limitations.  The court has no trouble deciding that the first two limitations are not applicable here - the defendant is in no way responsible for his condition, and no less illegal course of action could secure the same results for him.

A more serious question is raised by the third requirement, which is that the evil inherent in the act be less than the evil sought to be avoided.  The court considers evidence on the alleged harmful effects of marijuana together with federal court decisions regarding the right to preserve one’s health, and concludes that thedefendant’s interest in retaining his sight outweighs the government's interest.

Both the D.C. Court of Appeals and the D.C. Circuit have rejected the necessity defense in two recent narcotics cases, Gorham v. U.S., 339 A.2d 401, 17 CrL 2142, and U.S. v. Moore, 486 F.2d 1139, 13 CrL 2169, but these cases are distinguishable.  Moreover, the necessity defense can apply even though the statute here does not contain an express requirement of wilfulness. (U.S. v. Randall, 11/24/76)

Digest of Opinion:  The defendant in this marijuana possession case, brought under D.C. Code §33.402, does not dispute the government’s evidence and admits growing the marijuana and intending to use it for his personal consumption.  Instead he seeks to exonerate himself through evidence showing that his possession of marijuana was a result of medical necessity.  According to his testimony, he has glaucoma, a disease characterized by the excessive accumulation of fluid causing increased intraocular pressure, distorted vision, and ultimately, blindness.  Conventional drugs have lost their effectiveness, he testified, and by 1974, he had lost all sight in one eye and suffered considerable impairment of vision in the other.  But he achieved some relief through the inhalation of marijuana smoke, and following his arrest, he participated in an experimental program conducted under government auspices by Dr. Hepler.  Hepler testified that conventional medications were ineffective in Randall’s case, and that surgery carried significant risks of immediate blindness.  The experimental program indicated that marijuana smoking has a beneficial effect on Randall’s condition.

The first issue in this case is whether the common law recognizes the defense of necessity in criminal cases.  Such a defense was seldom raised successfully at common law, but legal scholars have recognized its existence.  See for instance W. Clark and W. Marshall, Treatise on the Law of Crimes, 104 et seq. (4th Edition 1940).

[Text] Necessity is the conscious, rational act of one who is not guided by his own free will.  It arises from a determination by the individual that any reasonable man in his situation would find the personal consequences of violating the law less severe than the consequences of compliance.  While the act itself is voluntary in the sense that the actor consciously decides to do it, the decision is dictated by the absence of an acceptable alternative.  Unlike compulsion or duress, necessity arises from the press of events rather than through the imposition on the actor of the will of another person.

Traditionally, the defense of necessity has been characterized as being either a jusitification of or an excuse for criminal activity.  • • •

Common to both of these views is the belief that punishment should not be visited upon one who did not act of his own free will.  Penalizing one who acted rationally to avoid a greater harm will serve neither to rehabilitate the offender nor to deter others from acting similarly when presented with similar circumstances.  This point is implicitly recognized by the three traditional limitations on the applicability of ihe necessity defense.  The defense will not shield an actor from criminal responsibility if:  1.  The duress of circumstance has been brought about by the actor himself;  2.  The same objective could have been accomplished by a less offensive alternative which was available to the actor;  or 3.  The evil sought to be averted was less heinous than that performed to avoid it.  [End Text]

For an example of the first limitation, see U.S. v. Moore.  The second limitation is demonstrated in Bice v. State, 34 S.E. 202 (Ga 1899).  And the third limitation was a factor in People v. Brown, 333 NYS.2d 342.

The next issue is whether the defendant has established necessity.  On the facts proved the defense has been established.  It remains to consider whether one of the limitations is applicable.

[Text] A brief consideration reveals that of the three limitations, only the third poses any threat to this defendant’s use of this defense.  While the exact cause of defendant's glaucoma is unknown, neither the government nor any of the expert witnesses has suggested that the defendant is in any way responsible for his condition.  Similarly, no alternative course of action would have secured the desired result through a less illegal channel.  Because of defendant’s tolerance, treatment with other drugs has become ineffective, and surgery offers only a slim possibility of favorable results coupled with a significant risk of immediate blindness.  Neither the origin of the compelling circumstances nor the existence of a more acceptable alternative prevents the successful assertion of the necessity defense in this case.

The question of whether the evil avoided by defendant’s action is less than the evil inherent in his act is more difficult.  It requires a balancing of the interests of this defendant against those of the government.  While defendant’s wish to preserve his sight is too obvious to necessitate further comment, the government’s interests require a more detailed exam in ation.  [End Text]

The modern prohibition against marijuana began in 1937, primarily in response to economic pressures from liquor manufacturers and distributors and the desire to ease the task of eliminating job competition posed by Mexican migrant laborers who were the principal users of the drug.  Marijuana is now classified as a non-narcotic under federal law, and penalties for its use are considerably reduced.  But the District of Columbia law has not been changed.

[Text] Medical evidence suggests that the prohibition is not well founded.  Reports from the President’s Commission and the Department of Health, Education and Welfare have concluded that there is no conclusive scientific evidence of any harm attendant upon the use of marijuana.  According to the most recent HEW study, research has failed to establish any substantial physical or mental impairment caused by marijuana.  Reports of chromosome damage, reduced immunity to disease, and psychosis are unconfirmed; actual evidence is to the contrary.  Furthermore, unlike the so-called hard drugs, marijuana does not generally appear to be physically addictive or to cause the user to develop a tolerance, requiring more and more of the drug for the same effects.  The current HEW report also notes the possibility of valid medical uses for this drug.  Both the President’s Commission and HEW found the current penalties too harsh in view of the relatively inoffensive character of the drug, and recommended decriminalization.  Commissions of study in other countries have reached similar conclusions, and several states have taken steps in this direction.

The right of an individual to protect his body has been weighed by several courts against the interest of the government in guarding the health and morals of the general public.  Most importantly, the Supreme Court addressed this question in Roe v. Wade, 410 U.S. 113, 12 CrL 3099 (1973) and Doe v. Bolton, 410 U.S. 179, 12 CrL 3118 (1973), cases which attacked the constitutionality of state statutes restricting abortions.  • • • [End Text]

The significance of these decisions to the instant case lies in the revelation of how far-reaching is the right of an individual to preserve his health and bodily integrity.  [End Text]

See also Stowe v. U.S., Civil No. 75-0218-B (USDC WOkla 8/14/75), in which the court found that the plaintiffs’ right to medical treatment with the cancer drug laetrile, which had demonstrably favorable effects on their cancers, superseded any interest of the government in protecting the general public from a drug whose properties were not conclusively proven.

[Text] Under these circumstances, the Court finds that this defendant does not fall within the third limitation to the necessity defense.  The evil he sought to avert, blindness, is greater than that he performed to accomplish it, growing marijuana in his residence in violation of the District of Columbia Code.  While blindness was shown by competent medical testimony to be the otherwise inevitable result of defendant’s disease, no adverse effects from the smoking of marijuana have been demonstrated.  Unlike the situation in Roe and Doe, no direct harm will be visited upon innocent third parties; any major ill effects from the inhalation of marijuana smoke will occur to the defendant alone.  Furthermore, defendant, by growing marijuana for his own consumption, cannot be said to be contributing to the illegal trafficking in this drug, and thus injuring, however nebulously, innocent members of the public.  In any event it is unlikely that such slight, speculative and undemonstrable harm could be considered more important than defendant’s right to sight.  [End Text]

It may be argued that the necessity defense cannot shield a defendant charged under a statute which purports to punish only the act, without any specified mental state.  But the case law supports an alternative view.  The statute has been interpreted as requiring a particular state of mind; U.S. v. Weaver, 458 F.2d 825 (CA DC 1972).  The commission of the prohibited act without the requisite mental state is not sufficient for commission of the offense.

The Gorham and Moore decisions have discussed the necessity defense in connection with criminal charges.  In each case the defense was rejected.  But both are readily distinguishable from the case at bar.

[Text] Unlike the defendants in Moore and Gorham, the accused in the instant case did nothing to bring about the circumstances necessitating his use of the prohibited drug.  Recognition by the Court of this defense will not have the effect of nullifying the statute.  Medical necessity is difficult to demonstrate, and would not be available to a sufficiently large number of those accused that it would support wholesale use of marijuana.  Objective standards of proof can be developed without undue hardship, since the existence of a disease and its response to the drug can be demonstrated scientifically.  In addition, permitting this limited use of marijuana, a drug with no demonstrably harmful effects, will not endanger the general public in the way that heroin might.  Thus Moore and Gorham are inapposite; the rulings do not dictate a decision in the instant case.  [End Text]

Finally, it is advisable for this court to discuss the issue of burden of proof.  The traditional approach would be to require the defendant to prove necessity by a preponderance of the evidence.  Doubt may be thrown on this approach by Mullaney v. Wilbur, 421 U.S. 684, 17 CrL 3063 (1975).  The Maryland Court of Special Appeals has interpreted Mullaney as requiring the government to bear the burden of disproving all defenses.  Evans v. State, 349 A.2d 300, 18 CrL 2353 (1975).  But the District of Columbia Court of Appeals has rejected this view in James v. U.S., 350 A.2d 748, 18 CrL 2440.

[Text] This Court believes that James, which is controlling in this jurisdiction, takes the correct approach for cases of necessity.  Since the defense does not attempt to disprove any element of the government’s case, it should be classified as an affirmative defense which the accused bears the burden of establishing.  In addition, the necessity defense, like the innocent possession raised in James, is one uniquely within the knowledge of the defendant.  Placing the burden of persuasion on the defendant does not conflict with the presumption of innocence, since necessity of its nature arises only in cases where the defendant admits committing the prohibited act.  Thus, a defendant who seeks to avail himself of the necessity defense should be required to prove it by a preponderance of the evidence.  The defendant in the instant case has carried this evidentiary burden.  [End Text] — Washington, J.

(U.S. v. Randall; D.C. SuperCt, 11/24/76)

Activist Robert C. Randall Dies, Graeme Zielinski, Washington Post, June 8, 2001