March 26, 2001

WASHINGTON, D.C. – On Wednesday, March 28, the U.S. Supreme Court will hear oral argument from attorneys who say that federal law permits a “necessity defense” for people with severe illnesses who use medical marijuana. The Court’s ruling in U.S. v. Oakland Cannabis Buyers’ Cooperative (No. 00-151) will become the first opinion by the nation’s highest court on the topic of medical marijuana.

Eight states currently protect people who use or grow marijuana with their doctor’s approval. While Congress has yet to provide a similar protection under federal statutory law, the Supreme Court has long permitted a necessity defense to certain federal crimes. In the Oakland case, the justices are asked to decide whether the necessity defense can be raised in federal court by the Oakland Cannabis Buyers’ Cooperative, a not-for-profit organization that distributes medical marijuana to seriously ill people who have a doctor’s recommendation to use the plant.

The necessity defense to criminal charges is one of the oldest defenses recognized in American jurisprudence, dating back to English common law. The necessity defense recognizes that in some situations a person can be justified in breaking a law if abiding by the law would produce a greater harm. When applied in the medical marijuana context, the issue is whether a seriously ill person, for whom other medicines have proven unsatisfactory, is justified in treating his or her illness with marijuana despite the federal criminal prohibition.

“A civilized society should not punish sick people,” said Richard Glen Boire, an attorney who frequently represents medical marijuana users and author of the book Marijuana Law. Boire is currently director of the Center for Cognitive Liberty & Ethics, a nonprofit law and policy center that has released studies showing how some federal drug laws violate fundamental human rights.

“Patients and their doctors should be able to decide what the best treatment options are, and not have their hands cuffed by police and DEA agents who have no medical training,” said Boire. “The War on Drugs is not a metaphor. It is a real war fought by the Government against its own citizens, and not even sick people are removed from the battlefield. Hopefully, the justices on the U.S. Supreme Court will take the government’s lawyers to task for such a policy, and ultimately call an end to such barbarism.”