The Evans Medical Marijuana Criminal Defense Firm
Medical marijuana refers to medical treatment and therapy using parts of the cannabis herb, or synthetic forms of the herb, per a physician’s recommendation. The history of marijuana as medicine is longer and richer than its history as an intoxicant. As early as 2,737 BCE, Chinese Emperor Shen Neng prescribed cannabis tea for medical treatment of malaria, gout, rheumatism, and poor memory. Cannabis treatment stretched through Asia and the Middle East, then down Africa’s eastern coast. Ancient texts reveal that the Chinese were aware of, and sometimes used the drug for, its hallucinogenic effects, but this use of the drug was largely discredited during a political overtaking and change of dynasties. Cannabis remains one of the “Fifty Fundamental Herbs of Chinese Medicine,” along with such innocuous substances as cinnamon and mint. The ancient Egyptian medical text Ebers Papyrus contained recommendations for medical use of marijuana, written around 1,550 BC. Historians believe that marijuana was used and prescribed by Egyptians many years before this more formal recommendation was written. Today, far more people use marijuana (for recreational or medicinal reasons) than other illicit drugs, with at least ten times as many worldwide users than cocaine and heroin.
Marijuana has been a presence in America since colonial times when the plant was introduced to Jamestown in 1622 and became a profitable crop. Irish doctor William O’Shaughnessy helped increase marijuana’s popularity in America and England, claiming that the drug could reduce nausea, pain, and discomfort. In the late 1700’s, American medical journals even recommended cannabis to treat venereal disease, incontinence, and inflamed skin. Even the British Queen Victoria treated menstrual discomfort with cannabis. However, when aspirin arrived in America and the U.K., cannabis use declined as aspirin became the primary treatment and prescription for pain. Marijuana use did not become popular again until the Prohibition era of the 1920’s, where the plant was prevalent in speakeasies and jazz clubs as an intoxicant. Up until the 1903’s, doctors even prescribed marijuana for various ailments. The Federal Bureau of Narcotics then began to campaign against marijuana, claiming it was an addictive “gateway drug” that was dangerous to the public. By 1942, marijuana was illegal in the United States. Although the plant’s medicinal qualities began to reemerge in the United States in the 1970’s, President Reagan’s tough drug policies in the 1980’s targeted marijuana, among other drugs. The Controlled Substances Act of 1970 classified, and continues to classify, marijuana as a Schedule I controlled substance, meaning it has no medicinal value and a high potential for abuse. In 1997, the White House Office of National Drug Control Policy asked the Institute of Medicine to research the effects and potential medical benefits of marijuana. The Institute of Medicine found that marijuana contained some therapeutic value that could potentially treat serious medical conditions, and some similar studies followed suit. Recently, several states have recognized legal uses of marijuana for medical treatment.
Today, most countries outlaw medical marijuana use. However, some countries, including the United States, permit low doses of synthetic cannabis to treat certain conditions. For example, legal prescription drugs Dronabinol (Marinol) and Nabilone (Cesamet) contain synthetic cannabis and are available in the United States to orally treat nausea and vomiting. Marinol fuses sesame oil and synthetic THC. The human bloodstream absorbs more THC through Cesamet than Marinol, although the degree of THC actually absorbed varies from person to person. Also, Canasol is a legal prescription drug containing cannabinoids used to treat glaucoma.
Medical marijuana supporters contend that cannabis has several medicinal benefits, such as stimulating hunger in AIDS and chemotherapy patients, lowering intraocular eye pressure in glaucoma patients, ameliorating vomiting and nausea, and relieving many forms of chronic pain. In 1988, studies identified cannabinoid receptors in the human brain and nerve cells, and two years later discovered that the human body produced natural THC. The Colorado Constitution recognizes cancer, glaucoma, AIDS, HIV, cachexia, severe pain, severe nausea, seizures, and muscle spasms as qualifying debilitating medical conditions that may justify the medical use of marijuana with a doctor’s recommendation.
It is difficult to measure the precise effects and benefits of the different compounds in cannabis because there are 483 distinct compounds. Anywhere from 30 to 100 of these compounds are cannabinoids, which are used in medical and scientific studies and act as antiemetics, antispasmodics, and appetite stimulants. Five important cannabinoids are: tetrahydrocannabinol (“THC”), cannabidol, cannabinol, ß-caryophyllene, and cannabigerol. The concentration of THC and other cannabinoids highly varies based upon the plant’s genetics, growing conditions, and how the plant is processed after harvesting.
THC is a psychoactive compound effective at treating pain and improving memory and sleep. THC is quickly metabolized and remains active for two to six hours in the blood. Cannabidol is not psychoactive, constitutes 40% of medical marijuana extracts, and is used to treat anxiety, nausea, inflammation, and cancer, among other illnesses. Studies suggest that cannabidol reacts with THC to induce sedation. Cannabinol is a therapeutic compound that is also produced as a breakdown product of THC. ß-Caryophyllene aids to reduce tissues inflammation by activating the cannainoid receptor called CB2. It can be found in concentrated form in cannabis essential oil. Cannabigerol is not psychoactive and is used to treat glaucoma by relieving intraoccular pressure.
There are also two different common bud strains of cannabis, Cannabis Sativa and Cannabis Indica. These different strains of cannabis buds are grown and combined for a variety of marijuana plants. Cannabis Sativa contains four to five times more THC than Cannabis Indica, the former triggering a cerebral high, the latter possessing more sedative and relaxing qualities.
Recently, studies have linked medical marijuana to effective treatment of numerous conditions and diseases. The drug’s effective treatment of nausea, weak appetite, glaucoma, and chronic pain has been confirmed, and new areas of benefit have also begun to surface. Studies now link cannabis-based drugs to relief from migraines, fibromyalgia, and inflammatory bowel disease, as well as multiple sclerosis and spinal cord injuries. Additionally, recent studies suggest that cannabis could help treat alcohol abuse, asthma, depression, skin tumors, sickle-cell disease, colorectal cancer, bipolar disorder, epilepsy, glioma, hepatitis C, Huntington’s disease, atherosclerosis, amyotrophic lateral sclerosis, collagen-induced arthritis, Parkinson’s disease, sleep apnea, anorexia, pruritus, posttraumatic stress disorder, leukemia, psoriasis, Tourette syndrome, and more. Throughout these studies, marijuana’s calming, relaxing, and sedating qualities were found to help patients adhere to a strict medication regimen, enhance appetite, improve mood, and inhibit excitability. Cannabis’s anti-inflammatory effect also helps inhibit cancer cell invasion and induces cancerous cell death. Treatment with medical marijuana can also minimize stressors or triggers and manage pain without the adverse side effects of other drugs and treatment options.
Patients can treat with medical marijuana through several methods, such as smoking dried plant buds, eating extracts, swallowing capsules, drinking, vaporizing, or smoking. Although smoking dried plant buds is the fastest way to deliver THC to the bloodstream, the smoke can be harmful, containing carcinogens similar to those in tobacco cigarettes. The American Society of Addiction Medicine claims that marijuana smoke deposits up to four times the amount of tar in human lungs as tobacco cigarettes. Most medical reports that advise against medical marijuana treatment emphasize the dangers of smoking the plant. However, there is debate among researchers as to whether marijuana smokers face the same grave risks of lung cancer and chronic obstructive pulmonary disease (“COPD”) as tobacco smokers. There is some consensus that combining marijuana and tobacco smoking drastically increases one’s risks, while studies conflict about the risks of marijuana smoking alone.
Vaporizing is a safer delivery system of cannabis. Dispensing the drug through a vaporizer releases higher amounts of THC, the active medical ingredient, through a heating device with far fewer dangerous compounds than inhaled when smoking. Edible marijuana is another delivery system safer than smoking, but presents dosage issues because there is no immediate sensation like there is with smoking or vaporizing. Before any method of delivery, scientists recommend baking marijuana in a home oven at 150 degrees for five minutes to kill any harmful bacteria and fungi living on the plant from its cultivation. This does not degrade the quality or quantity of the plant’s THC.
Clinical studies show that smoking cannabis reduces intra-ocular pressure by 24% in glaucoma patients with visual-field changes, making medical marijuana as effective as current prescription treatments. However, the downfall is that smoked cannabis only maintains its effect for about three and a half hours.
Controlled trials tracking the effect of cannabis on multiple sclerosis patients showed potential anti-inflammatory and antispastic benefits, but researchers noted that the drug’s mood improvement effects could have essentially tricked patients into believing their tremors were improving. Similar effects have been reported for those suffering from ALS or Lou Gehrig’s Disease.
The Scripps Research Institute in California has revealed research that THC prevents brain deposits associated with Alzheimer’s disease. The chemical effectively blocks protein clumping, which causes memory loss and inhibited cognition in Alzheimer’s patients.
Cannabis may also stop the spread of brain and breast cancer, according to studies at the Complutense University of Madrid and the California Pacific Medical Center Research Institute, respectively. For breast cancer, cannabidol blocks Id-1, a gene that causes cancers cells to aggressively spread away from the original tumor location. For brain cancer, cannabis chemicals were found to increase the death of cancer cells by promoting the process of autophagy, where cells feed upon one another. Amazingly, THC treatment killed cancer cells while leaving healthy cells undisturbed. Thus, medical marijuana could be a less harmful alternative treatment to chemotherapy for certain cancers.
A 2007 study at Columbia University showed that HIV/AIDS patients experienced substantial increases in appetite and food intake with little to no discomfort after inhaling cannabis four times per day. Marijuana has also been linked to pain reduction in HIV/AIDS patients who were unable to manage their pain with other medications and treatments, according to the University of California San Diego School of Medicine. In fact, cannabis is suggested to be the only effective drug to manage pain and pain perception in HIV/AIDS patients. Plus, marijuana has the added benefits of mood and sleep improvement.
THC injections may also be a safe and effective alternative method to eliminate opiate dependence. A French research team, after removing rats from their mother at birth and providing the rats with morphine and heroin, observed the rat’s extreme dependency on the opiates. However, rats that were injected with THC before exposure to the opiates were less likely to become dependent because THC counteracted addiction and dependency triggers in the brain. Studies with humans show that addicts who couple recovery treatments with cannabis use are more likely to overcome opiod dependence. Interestingly, these studies are similar to results reported in 1889 by Edward Birch that opiate addiction could be treated with cannabis.
Marijuana use has been shown to be safe, even if not treating a medical condition, and even if frequent and long-term. Only collateral harms from smoking harmful compounds in dry bud smoke have some harmful effects. Also, recent studies have disproven that marijuana acts as a “gateway drug” to other, more harmful narcotics and illicit drugs. Studies now also reveal that marijuana use does not kill brain cells or cause sterility in male or female reproductive systems. However, potentially negative effects include marijuana’s interference with other prescription drugs, drowsiness, impairment, and sedation. The drug’s effect on the human immune system and blood pressure is debated and unclear. Marijuana is far less addictive than other illegal drugs and tobacco. Only one fatal dose of marijuana has ever been reported, as opposed to hundreds of thousands of deaths caused annually by prescription medications and harder narcotics. Some countries have even decriminalized the recreational use of marijuana, including Portugal, Mexico, Argentina, and some Australian states.
There is debate surrounding marijuana’s link to mental disorders such as schizophrenia. Although some studies have suggested that cannabis use causes schizophrenia or other psychoses, another reasonable conclusion from the results is that people with certain mental disorders chose to use marijuana at a higher rate than the rest of the population. Also, a recent British study found that instances of schizophrenia and psychoses have dropped in recent years, although cannabis use has not seen such a drop. Because marijuana is known to decrease anxiety and improve mood, scientists believe it could actually help treat mental disorders. The American Medical Association admits that research is minimal in the medical marijuana field, largely because the federal government classifies marijuana as a Schedule I controlled substance, limiting researcher’s ability to legally perform trials and obtain test subjects wary of prosecution for their use.
The American Medical Association, American College of Physicians, and numerous organizations dedicated to the eradication of cancer have publically declared support for further research into the medical benefits of marijuana. The first step toward increasing the volume of medical studies is to urge the federal government to reconsider its classification of marijuana as a Schedule I controlled substance, which makes it incredibly difficult for researchers to obtain the drug, even for controlled studies. However, some organizations, such as American Society of Addiction Medicine, have publically asked physicians to stop recommending medical marijuana, citing the drug’s Schedule I classification and its high potential for abuse.
In America, marijuana, whether used for medical purposes or not, is illegal under federal law. Specifically, the Controlled Substances Act classifies marijuana as a Schedule I controlled substance, which is the strictest possible classification. Other Schedule I controlled substances include LSD, ecstasy, and heroin. The Drug Enforcement Administration supports this classification because cannabis has: no currently accepted medical use, a high potential for abuse, and a lack of accepted safety for use. The Federal Food and Drug Administration does not condone the use of smoked marijuana to treat any disease or condition.
These federal laws and agencies are in apparent conflict with eighteen U.S. states that have, to some degree, legalized the medical use of marijuana. Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia permit certain patients to use and possess personal amounts of marijuana without the risk of state prosecution for violation of drug laws. Additionally, in Maryland a state court may consider a defendant’s use of marijuana for medical purposes as a mitigating factor in state prosecution. As of 2008, California’s medical marijuana industry has generated a staggering $2 billion per year and about $100 million in state sales taxes.
In October of 2009, Deputy lawyer General David W. Ogden responded to the explosion of medical marijuana laws by issuing a “Memorandum for Selected United States lawyers” directing federal prosecutors to focus their time and resources on large drug cartels and trafficking, and not individuals using small amounts of marijuana to treat debilitating diseases in compliance with their state’s law. This Memorandum did not change any law; the use, possession, and cultivation of marijuana remains wholly illegal under federal law, even if for purportedly medical purposes. The United States Supreme Court held in both Gonzales v. Raich and United States v. Oakland Cannabis Buyers’ Coop that the federal government could regulate marijuana and prosecute its use for any purpose, even if state laws legalize the drug for medical treatment. However, the United States Department of Health and Human Services holds the patent to cannabinoids for medical research. The patent states that cannabinoids have antioxidant, anti-inflammatory and other medically beneficial effects. Some commentators and bloggers have asserted that this patent reveals the federal government’s hypocrisy by completely outlawing medical marijuana and asserting it has no medical benefits on the one hand, while holding a patent for its medical use on the other.
In 2000, Colorado voters approved Amendment 20 to the Colorado Constitution, now found in Article 18, section 14. The Amendment provides primary care-givers and qualifying patients an affirmative defense to state prosecution if the patient has been diagnosed with a debilitating condition, was advised by his doctor to treat his condition with medical marijuana, and both the care-giver and patient only possessed a limited amount of marijuana permitted by the Amendment. Also, in another section, the Amendment permits patients to lawfully use and possess no more than two ounces of a usable form of marijuana, and no more than six marijuana plants, with three or fewer being mature, flowering plants. Colorado maintains a confidential registry of individuals who have both applied to be, and who are licensed medical marijuana patients. However, the Amendment forbids patients from using marijuana in a way that endangers the health of the public or in public view.
Canadian law also provides for medical marijuana use by individuals with debilitating and chronic conditions. Qualifying patients may also grow their own cannabis plants, or delegate their growing authority to another person. Health Canada initiated these legal marijuana uses through the Marihuana Medical Access Regulations in 1999, requiring qualifying patients to obtain a MMAR form. MMAR forms are strictly confidential between Health Canada, the physician, and the patient; Canadian colleges are not privy to this information. Although cannabis use is illegal in England, British law also provides for certain medical exceptions.
Criminal Law Explained
Criminal law, also termed penal law, is the body of law defining offenses against the community. Criminal law is enforced by the state. This body of law dictates what conduct is prohibited by the state because it threatens to harm or actually harms the safety and welfare of the public. Criminal law classifies crimes into petty, misdemeanor, and felony offenses depending on the severity of the social harm caused. Criminal law also imposes punishments for breaking these laws. The severity of punishment under criminal law is generally related to the severity of the crime committed. Criminal punishment may consist of monetary fines, in-home detention, incarceration in prison or jail, and possibly death or capital punishment. The length of incarceration varies greatly depending on the severity of the crime, and could be a little as a day or as long as a life sentence. States enforce criminal law with five main objectives: retribution, deterrence, incapacitation, rehabilitation, and restitution. Colorado’s adult criminal code is contained within Title 18 of the Colorado Revised Statutes. Colorado’s children’s code is contained within Title 19 of the Colorado Revised Statutes.
Retribution is focused on punishing an individual for past criminal acts. It is based on the belief that a criminal should be made to suffer in some way for the harm inflicted on society. As long as everyone follows the rules of criminal law, everyone is benefitted and burdened in the same way. However, when a criminal breaks the rules, he owes a debt to society and punishment equal to the debt owed is considered just.
Criminal law offers benefits to society in the form of deterrence. Deterrence may be “general” or “individual.” When a criminal is punished, it serves as a general deterrence to future crimes. This is because others are less likely to commit future crimes if they have knowledge that a crime will be punished. For the criminal actually punished, that punishment is thought to create fear in the criminal that if he repeats the act he will be punished again. The goal of individual punishment is to make the penalty severe enough to outweigh any benefit the criminal may perceive in future criminal acts.
Incapacitation is designed to remove criminals from society so that the public is protected from their misconduct. Imprisonment is the most common form of incapacitation used today, although the death penalty may still be imposed on the most violent murderers to permanently incapacitate those individuals.
Rehabilitation is aimed at reforming the criminal teach the criminal the wrongness of his or her behavior. The goal is to return the reformed criminal to society as a more useful and valuable member.
Restitution is focused on the victim of a criminal act. The goal is to repair any harms inflicted on the victim by the offender. For example, if a criminal burglarizes a person’s home, he or she will be required to return or repay the cost of the items stolen. Restitution is most often combined with other forms of punishment.
Components of a Crime
Criminal law generally prohibits undesirable acts, and every crime is composed of criminal elements. In their most basic form, crimes have two components: the actus reus, or voluntary act that causes the social harm, and; the mens rea, or intent to commit the crime. In a few limited circumstances, only the criminal act is required to have committed a crime. These crimes are known as strict liability offenses. Common strict liability offenses are drunk driving crimes and statutory rape crimes.
The actus reus or guilty act is the physical element of committing a crime. This condition may be met by voluntarily acting, threatening to act, or (in very limited situations) failing to act where there is a legal duty to act. While assaulting or threatening to assault a person are obvious criminal acts, crimes of omission (or failing to act) are less so. All crimes of omission are based on a failure to act where there is a legal duty of care. For example, a mother could be convicted of child abuse for allowing her minor children to remain with their father whom she knows is abusing them. Her failure to protect her minor children is the criminal breach of her legal duty. In all cases, whether actual acts, threats to act, or acts of omission, there must be causation. In other words, the offender’s action or omission must result in or cause the social harm. Without causation there is no crime. For example, if a person intends to shoot and kill another, but that individual is already dead when the shooting occurs, the person cannot be found guilty of murder. At most the person could be found guilty of attempted murder because the act of shooting another was not the cause of that individual’s death. Generally, causation can be broken by an intervening act of a third party, the victim’s own conduct, or another unpredictable event.
The mens rea, or guilty mind, is the mental element of a crime. To have a “guilty mind” means to have the intention of committing some wrongful act. Under criminal law, intention is separate from a person’s motive for committing a crime. Modern criminal statutes generally have a mental element that falls within one or more of the following categories: intentional, knowing, willfulness, negligence, or recklessness. The most culpable mental state is intentional, negligence is the least. When a statute lists a mental element, the state must prove that element beyond a reasonable doubt to secure a conviction. As mentioned above, some criminal statutes do not have a mental element, such as drunk-driving statutes. These crimes are also known as strict liability crimes.