« "Legitimizing Local Variations in the Federal Sentencing System" | Main | Heller's impact on felon-in-possession crimes finally starting to generate attention »

July 30, 2009

Should having multiple sclerosis be a viable defense to a local pot charge?

The question of this post is inspired by this commentary piece, which is headlined "Judge forgets to bring conscience to work, denies MS patient proper defense," and complains about a legal ruling from a state court in New Jersey.  Here are the basics:

A New Jersey man with Multiple Sclerosis is being charged for growing his own medicine to treat his pain and muscle spasms. John Ray Wilson, of Franklin, New Jersey is facing the charge of operating a drug manufacturing facility for growing his own medicine, and the Judge is refusing to allow any mention of the man’s medical condition at trial.

A lot of people might ask why this man didn’t just go to the doctor and get medications. The answer, according to Wilson’s attorney, is simple.  Wilson had no health insurance and could not afford to pay for the medications to treat his condition.  This is what led Wilson to seek alternative remedies like bee venom and medical cannabis.

Now, none of this matters, because Judge Robert Reed is refusing Wilson to admit his medical condition as an excuse for growing his own medicine.  The judge states his reason being New Jersey does not currently comprehend the use of marijuana for medicinal purposes.  Apparently, they also don’t comprehend the fact that one’s ability to pay or afford his/her medical care has no impact on the reality that he/she is sick.

July 30, 2009 at 09:55 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Should having multiple sclerosis be a viable defense to a local pot charge?:


The judge must follow the law. The remedy here for changing the law lies in the state legislature, not in judges ignoring the law.

Posted by: Jaguar | Jul 30, 2009 11:34:49 AM

The feds already do this. While I personally would like defendants to be able to make any tender (including open bribery) about why they should not be convicted, I doubt many others are.

How do you formulate a rule that lets this person argue that their use is justified while at the same time preventing some other defense you don't like?

I will also add that if the defendant can't afford rather than just doesn't want to pay for the regular medications, they didn't work very hard at trying to afford the prescriptions. There are all sorts of drug company programs, charity, etc that will make the load a lot lighter.

Posted by: Soronel Haetir | Jul 30, 2009 11:47:13 AM

The judge is flat wrong in not allowing the defendant to testify as to his physical condition and why he is growing the marijuana and his inability to buy insurance. This is relevant to knowledge and intent, even if it doesn not constitute a legal defense. The prosecutor should then obtain an instruction (assuming that it is accurate) that the defendant's motive and physical condition is no defense. The jury will then have the option to return a verdict of not guilty--even if this amoutns to jury nullification. See Trial of Zenger. Also, does this jurisdiction permit a choice of evils defense? Rather than suffer excruciating pain (the greater evil), I grow and smoke marijana (the lesser evil).

Posted by: Michael R. Levine | Jul 30, 2009 12:04:01 PM

What Michael said. 100% correct analysis. The Defendant has a right to testify in his own defense. Motive (bad or good) is always relevant, even when it does not by itself provide a defense or prove guilt. The State is entitled to request jury instructions on any pertinent doctrines of NJ law -- including asking the judge to tell the jury that New Jersey law treats a sick person growing his own pain medication the same as someone running a for-profit commercial grow operation or a meth lab. Let the jury decide whether the people of New Jersey consider him guilty.

Posted by: Peter G | Jul 30, 2009 6:23:30 PM

Can the argument be made that it violates the right to trial by jury? After all, trial by jury by enactedt avoid injustices by the government, sending a man to jail for growing marijuana to deal with his cancer is certainly an injustice.

Posted by: EJ | Jul 30, 2009 6:25:40 PM

It is time for this country to change the marijuana laws... make it legal and collect tax like cigarettes. Multiple Sclerosis is as good an excuse as any. I no longer believe it is any worse than cigarettes, in fact it probably isn't the health risk that cigarettes imposes. If this judge had MS or a family member with MS he might see it differently, but maybe he has no choice under the current law. Some states are already changing their laws. This defendant has no insurance, another matter to be dealt with in this country. Maybe someone needs to help him get the insurance he needs. More people need to be educated on what MS is and what some people need to cope with it. Just like prohibition could not stop people from using, making, selling alcohol, Marijuana use is not going away either, so in reality we need to deal with it.

I have a degree in nursing, but haven't practiced in many years. I am a mother with five adult children and I have one child with MS, diagnosed when she was almost 20; I was diagnosed with MS at the age of 57.

Posted by: itasara | Jul 31, 2009 12:52:57 PM

Motive isn't relative in a strict liability offense, which I suspect the offense in question is, unless there is an intent to distribute element that must be established. Otherwise, it goes to sentencing leniency, not to criminal guilt.

Posted by: ohwilleke | Jul 31, 2009 4:37:37 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB